author: JUSTICE RAKOWSKI

text:
    BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST et al., Petitioners, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents.
    First District (6th Division)
    No. 1—89—2151
    Opinion filed October 26, 1990.
    Stephen J. Moore, of Chicago, for petitioner Office of Public Counsel.
    Douglass W. Cassell, Jr., of Chicago, for petitioner Business and Professional People for Public Interest.

      Neil F. Hartigan, Attorney General, of Springfield (Edward P. O’Brien and John P. Kelliher, Special Assistant Attorneys General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Sidley & Austin, of Chicago (Howard J. Trienens, Michael I. Miller, Eugene H. Bernstein, David F. Graham, and Gerard D. Kelly, of counsel), for respondent Commonwealth Edison Company.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Petitioners Business and Professional People for the Public Interest and People of the State of Illinois ex rel. Office of Public Counsel appeal a decision by the Illinois Commerce Commission (ICC or Commission) granting Commonwealth Edison Company (Edison) permission to adjust accounting procedures on financing costs and defer depreciation at its Braidwood Unit 2 nuclear power plant (Braidwood Unit 2) until Edison receives a rate increase reflecting the costs of the Braidwood facility. This court has jurisdiction under the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 10 — 201) and Supreme Court Rule 335 (107 Ill. 2d R. 335).

The issues presented by the appellants’ initial brief were: (1) whether the ICC committed error when it allowed Edison to use the accounting procedures for a plant under construction during the time after Braidwood Unit 2 had gone into service but before ICC granted a rate change reflecting the plant’s placement in the Edison rate base; and (2) whether the ICC decision to approve favorable accounting treatment for Braidwood Unit 2 was arbitrary and capricious, not supported by substantial evidence and lacked sufficient findings and analysis to allow informed judicial review. We affirm.

Braidwood Unit 2 began generating electricity on March 25, 1988, and was placed in service for accounting purposes on August 5, 1988. Pursuant to the rules of accounting for a new utility property, Edison changed its accounting procedures for Braidwood on that date. Prior to that date, during the construction of the plant, Edison accumulated its costs in capital accounts (capitalized costs) and accrued interest on these amounts in AFUDC (allowance for funds used during construction). The costs included direct building costs for labor and material plus the carrying or financing costs of interest paid on debt and foregone return on equity capital. Once Braidwood Unit 2 was completed and placed in service, Edison changed its accounting in two ways: it stopped recording the carrying costs in AFUDC and it began charging depreciation on the physical plant. See Uniform System of Accounts for Electric Utilities, 83 111. Adm. Code §415 (1985).

This change in accounting procedures results in a loss of recorded earnings. Normally, a utility compensates by changing its rate charges to permit recovery of reasonable costs invested in the plant. Ideally, the utility should synchronize any accounting changes and corresponding rate changes so that the loss of earnings through depreciation is balanced with a gain in earnings through new rate charges. In fact, the ICC “has recognized that there can be circumstances where it is important to synchronize as nearly as practicable the placing in service of new generating facilities and the related rate changes.” (ICC Docket No. 85 — 0092, Order on Rehearing at 3; also in Re Commonwealth Edison Co. (Ill. Com. Comm’n Oct. 3, 1985), 70 Pub. Util. Rep. 107 (PUR 4th).) In order to synchronize these changes at Braidwood Unit 2, Edison applied to the ICC for a rate change on August 21, 1987, almost a year before the in-service date of the new plant. That rate change has not yet been granted and all parties concede that Edison is not culpable for the delay.

On August 15, 1988, Edison filed, a request for permission to defer depreciation and record finance or carrying costs until after the date of a rate order for Braidwood Unit 2. At the hearing, Edison presented evidence to show that, without the accounting change, the introduction of Braidwood Unit 2 would result in an annual loss of earnings of $1.20 per share or $240 million. This loss threatened to drop the utility’s return per share below the dividend level of $3, which it had maintained for more than seven years. In an order entered on June 1, 1989, the ICC granted Edison’s request for this favorable accounting treatment:

“Edison will be allowed to record carrying charges and deferred depreciation expenses for Braidwood Unit 2 until rates reflecting the allowable costs of the unit are determined and become effective. The Commission does not here make any determination as to costs associated with Braidwood Unit 2 that are properly included in Edison’s rate base or rates. The determination that the accounting treatment approved herein is appropriate rests on the Commission’s view of the propriety of allowing Edison an opportunity to recover its carrying costs and depreciation expense. Consideration of whether such costs are reasonable and proper and the recovery of such costs consistent with revenue limitations provided in the Sixth Interim Order entered on December 30, 1988, should be resolved in the proceedings of the consolidated dockets identified herein.” ICC Docket No. 88 — 0253, Order at 18; also in Re Commonwealth Edison Co. (Ill. Com. Comm’n June 1, 1989), 103 Pub. Util. Rep. 80, 88 (PUR 4th).
“IT IS THEREFORE ORDERED THAT Commonwealth Edison Company be, and is hereby, authorized to record and capitalize carrying charges and deferred depreciation expense on Braidwood Unit 2 in accordance with Findings 9 and 10 herein until such time as a determination as to the reasonable and. proper investment in said Unit has been made by the Commission for inclusion in Edison’s rates.” ICC Docket No. 88 — 0253, Order at 20.

Under the Illinois Public Utilities Act (Act), when appellants appeal an ICC decision:

“The findings and conclusions of the Commission [ICC] on questions of fact shall be held prima facie to be true and as found by the Commission; rules, regulations, orders or decisions of the Commission shall be held to be prima facie reasonable, and the burden of proof upon all issues raised by the appeal shall be upon the person or corporation appealing from such rules, regulations, orders or decisions.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 10-201(d).)

(See also Citizens Utilities Co. v. Illinois Commerce Comm’n (1987), 153 Ill. App. 3d 28, 31, 504 N.E.2d 1367.) However, the court shall reverse a Commission decision if it finds that the decision was: (1) “not supported by substantial evidence based on the entire record of evidence” before the ICC; (2) outside the jurisdiction of the ICC; (3) in violation of the State or Federal constitution or laws; or (4) reached through procedures which “were in violation of the State or federal constitution or laws, to the prejudice of the appellant.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 10 — 201(e)(iv)(D); see also Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 204, 555 N.E.2d 693.

I

In their initial brief the appellants claimed that the ICC acted beyond its authority and engaged in single-issue and retroactive rate-making when it granted Edison permission to defer depreciation and to accrue financing costs on Braidwood Unit 2 from the time the plant entered service until the date of a rate change which would take the costs and capacities of Braidwood Unit 2 into account for calculating the new rate. At oral argument, defendants maintained that the change in accounting procedures merely preserved the possibility that the costs accrued could be included in the rates eventually set to include Braidwood Unit 2 as an in-service plant. Appellants were willing to concede that a change in accounting procedures was not a form of ratemaking if and only if the eventual ratemaking hearing considered the full range of elements that make up Edison’s cost structure and did not presume that any costs accrued during the special accounting period would necessarily be included in the final rates.

In fact, the ICC’s order allowing Edison to record post-construction carrying costs specified that “[consideration of whether such costs are reasonable and proper and the recovery of such costs consistent with revenue limitations *** shall be resolved in” future rate proceedings. The order authorized Edison “to record and capitalize carrying charges and deferred depreciation expense on Braidwood Unit 2 *** until such time as a determination as to the reasonable and proper investment in said Unit has been made by the Commission for inclusion-in Edison’s rates.”

In short, the parties agree that the ICC order was not rate-making. Ordinarily this would dispose of the issues of single-issue and retroactive ratemaking. However, the problem remains whether the ICC can ever use the record of costs kept in the special accounts when it sets future rates. If these special accounts cannot have any effect on future rates, then the ICC has ordered Edison to perform a useless act and thus executed an arbitrary and capricious order. But, plaintiffs argue, if the information in the record can have an effect in setting future rates, then the ICC may have set up the record for retroactive ratemaking. This is the problem we address here, whether setting up accounting procedures to recover post-construction costs and then using the information to set future rates is, in effect, a form of retroactive ratemaking.

When it sets rates, the ICC’s action is “legislative in character and prospective in its operation.” (Mandel Brothers, Inc. v. Chicago Tunnel Terminal Co. (1954), 2 Ill. 2d 205, 210, 117 N.E.2d 774.) Consequently, once the ICC sets rates, there can be no retroactive adjustments even if a court later finds the rates unreasonable (Independent Voters v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 90, 510 N.E.2d 850) or the ICC reduces the tax depreciation expenses for the utility (Citizens Utilities Co. v. Illinois Commerce Comm’n (1988), 124 Ill. 2d 195, 529 N.E.2d 510). In effect, the rule against retroactive ratemaking prohibits “refunds when rates.are too high and surcharges when rates are too low.” Business & Professional People, 136 Ill. 2d at 209.

In this case, the ICC decision allowed Edison to recompute financing costs for an imservice plant dating back to August 5, 1988. If rates had already been set taking Braidwood Unit 2 into account, then any readjustment of rates based on this new calculation of costs would be retroactive ratemaking under the authorities just cited. But such is not the situation here.

Appellants cite Kentucky Utilities Co. v. Federal Energy Regulatory Comm’n (D.C. Cir. 1985), 760 F.2d 1321, for the proposition that “in circumstances such as the one before this court, regulatory principles prohibit the retroactive recovery of post construction capital costs.” That case is distinguishable on several grounds, the most important of which are statutory scheme and utility fault. Kentucky Utilities was an appeal from the Federal Energy Regulatory Commission and specifically acknowledged that practices varied under various State laws and commissions. Furthermore, the Kentucky utility had caused the delay in ratemaking. By contrast, Edison was not at fault for the time lag between when Braidwood Unit 2 went into service and new rates will come into effect. See Kentucky Utilities, 760 F.2d at 1324-26.

The ICC order of June 1, 1989, was an order to affect accounting procedures, not a ratemaking decision. As such, that order does not foreclose any discussion or presentation of evidence that would normally occur when ICC conducts the ratemaking hearing for Braid-wood Unit 2. Nor does the order constitute a backdoor approach to single-issue or retroactive ratemaking.

For these reasons, we hold that the ICC did have authority to issue the order of June 1, 1989.

II

Appellants also claim that the ICC decision to approve favorable accounting treatment for Braidwood Unit 2 was an arbitrary and capricious misapplication of its own standards, unsupported by substantial evidence, and without sufficient findings and evidence to allow informed judicial review. See Ill. Rev. Stat. 1989, ch. 111⅔, pars. 10 — 201(e)(ii), (e)(iii), (e)(iv)(A).

In its order for this case, entered June 1, 1989, the ICC quoted the following statement from docket No. 85 — 0092 both in its order entered on May 15, 1985, and the order on rehearing entered on October 3, 1985:

“The Commission has recognized that there can be circumstances where it is important to synchronize as nearly as practicable the placing in service of new generating facilities and the related rate changes. During the period after the recording of AFUDC has ceased and before cash recovery through rates of these capitalized costs begins, there is no recognition of the Company’s carrying costs associated with the property. When the construction project involved is large and the regulatory lag is significant, the impact on the utility, its costs of capital, and its shareholders can be serious. Here, with regard to Byron Unit 1, circumstances beyond the control of Edison or the Commission created a significant lag between the in-service date of Byron Unit 1 and the associated rate adjustment. [(Emphasis added by the ICC in this case.)] [After t]he Commission granted Edison the authority to depart from normal accounting practices, by recording AFUDC and postponing commencement of depreciation until Byron Unit 1 is reflected in rates, the Company did not lose its ability to recover costs incurred during this lag. The Commission concludes that it is appropriate and in the interest of Edison and its ratepayers to recognize the economic realities of the situation by allowing this departure from normal accounting practices.” (ICC Docket No. 88— 0253, Order at 15.)

The ICC also quoted finding 5 from the earlier orders:

“(5) if this normal accounting practice is followed, and if, as is anticipated, there is a lag between the in-service date and the date on which Byron Unit 1 is reflected in Petitioner’s base rates, Petitioner’s earnings could be adversely affected, as well as its short-term and long-term cost of capital.” (Emphasis added by the ICC in this case.) ICC Docket No. 88 — 0253, Order at 3.

Appellants now argue that the ICC departed from the two-prong test established in docket No. 85 — 0092. The test requires:

“1. Circumstances beyond the control of the utility or the Commission which create a significant lag between the in-service date of the unit and the associated rate adjustment.
2. Circumstances which result in a serious financial impact on the utility, its cost of capital and its shareholders.” ICC Docket No. 88 — 0253, Order dissent at 1, citing ICC Docket No. 85 — 0092, Order.

Appellants do not argue that Edison was in any way at fault for the delay in setting proper rates for Braidwood Unit 2. Thus, for the purposes of review here, Edison met the first prong of the two-part test.

But appellants assert that Edison received its interim accounting treatment without establishing the second prong of “serious” impact on Edison and its shareholders. Edison did present evidence to project an annual loss in earnings of $1.20 per share for a total of $240 million. Appellants claim, however, that “Edison merely showed the obvious: its earnings would be less if the Commission denied the requested accounting change.”

Edison argues that it only had to prove that the impact of accounting practices “can be serious” and earnings “could be” affected by accounting practices. (ICC Docket No. 85 — 0092, Order on Rehearing at 3, 8.) Edison argues that it did demonstrate a drop in earnings of “approximately one-third” and did not need to present evidence of all possible consequences under different accounting scenarios.

Thus, no one in this case disputes that Edison suffered some regulatory delay through no fault of its own and showed some actual or possible harm under the normal accounting practices. Under the standard set in docket No. 85 — 0092, this is sufficient. The fact that one element is obvious or nearly always present does not obviate or dispose of a two-prong test.

For these reasons, we hold that the ICC used sufficient evidence and applied its own standards in a reasonable way when it entered the order of June 1, 1989.

The judgment of the Illinois Commerce Commission is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    VINCENZO D’AGOSTINO, Plaintiff-Appellee, v. BANK OF RAVENSWOOD, as Trustee, et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—90—0895
    Opinion filed October 26, 1990.
    Rehearing denied December 11, 1990.

      Paul Armstrong, of Chicago, for appellant.
    Regas, Frezados & Harp, of Chicago (Peter G. Frezados, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Vincenzo D’Agostino, brought this action against defendants Bank of Ravenswood, as trustee for Steve Spanos, the original seller, and Commercial National Bank of Chicago, as trustee for Peter Tselepatiotis, the subsequent purchaser, for specific performance of an alleged contract dated May 8, 1986, for the sale of a commercial building. Plaintiff asserted that the alleged contract between plaintiff and Spanos for the sale of the building for $230,000 was valid. At the time of trial, the property was held in trust for the subsequent purchaser, Tselepatiotis, who paid $232,500 for the property on October 16, 1986. Tselepatiotis subsequently purchased the restaurant business located in the building from the current lessee in July 1987. Only defendant Tselepatiotis is involved in this appeal.

At the conclusion of plaintiff’s case in a trial without a jury, the court held that the agreement of May 8 was valid and awarded specific performance to plaintiff. After an evidentiary hearing, the court ordered plaintiff to pay Tselepatiotis the contract price of $230,000, and an additional $22,000 for improvements Tselepatiotis made to the restaurant. The court also ordered Spanos to pay Tselepatiotis $2,500, thereby returning to him the entire purchase price paid for the property. Additionally, the court found that Tselepatiotis held only a month-to-month tenancy in the restaurant premises.

On appeal, Tselepatiotis maintains that the court erred in awarding specific performance to plaintiff because the agreement of May 8 did not constitute a binding contract and it violated the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.). Alternatively, Tselepatiotis contends that if the contract was valid, plaintiff abandoned it when he later submitted another contract on May 29 containing substantial changes from the May 8 offer. Finally, Tselepatiotis argues that the trial court erroneously concluded that he held only a month-to-month tenancy in the restaurant premises.

The following facts were brought out at trial. Spanos owned the building located at 3928-32 N. Broadway in Chicago and was three years behind in property tax payments. Spanos listed the property for sale with a real estate broker, William Vranas. In March 1985, plaintiff submitted an offer to buy the property for $225,000, and tendered an earnest money check for $1,000. Spanos rejected the offer and did not accept the check. (That offer is not at issue here.)

Vranas presented Spanos with a written offer from plaintiff to purchase the property for $230,000. An earnest money check in the amount of $1,000 from the initial offer dated March 22, 1985, was submitted with the offer.

Spanos testified that when he received the offer on May 13, 1986, he drew a line through the $230,000 figure, raised the price to $235,000, initialed the price change, and signed the offer at the bottom. Later that day, Vranas informed Spanos that plaintiff would not accept the offer at $235,000.

The parties stipulated at trial that Spanos orally agreed with Vranas during a telephone conversation that he would reduce the price to the original $230,000. Plaintiff later drew a line through the $235,000 figure which Spanos had inserted in the offer, reduced the price to $230,000, and initialed the change. Spanos never initialed the document after plaintiff changed the written price to $230,000.

On May 20, plaintiff asked his attorney, Garry Barker, to review the alleged contract. Vranas testified that he met with plaintiff and Barker on May 21, intending to pick up a new check from plaintiff for $1,000 as earnest money, thereby replacing the previous outdated check of March 22, 1985. According to Vranas, Barker stated at the meeting that the May 8 contract should be “ripped up” because it was not acceptable to plaintiff for several reasons, and that he wanted plaintiff’s outdated earnest money check returned. Barker wanted to draft another contract that would meet plaintiff’s objections by including mortgage and inspection contingencies, as well as certain seller’s warranties.

Vranas spoke with Spanos following the meeting with plaintiff and Barker on May 21, and explained that they wanted to rip up the contract, prepare another, and that they had taken back the earnest money. Spanos indicated that he still wanted to sell the property, because he was behind in his taxes, and requested Vranas to try to find another buyer.

Vranas testified further that he met with Barker and plaintiff on May 29, at which time they presented him with a new offer setting forth the proposed changes and tendered a check for $1,000. This new real estate contract drawn by Barker provided for a reduction in earnest money, mortgage and inspection contingencies, and seller’s representations regarding the heating, cooling, lighting and plumbing fixtures and systems in the building. There is no reference in the new contract to the previous May 8 offer.

Spanos rejected the offer of May 29. Vranas next contacted Spanos in the middle of June, indicating that he had several offers for the property. On June 10, 1986, Spanos accepted an offer to sell the subject property to Tselepatiotis for $232,500, and closed that sale on October 6,1986.

After plaintiff learned from Vranas that the property had been sold to Tselepatiotis, he filed this suit for specific performance of the May 8 contract. In addition, plaintiff filed a lis pendens covering the subject property. Spanos filed a counterclaim for damages against plaintiff and Barker which the trial court dismissed. That dismissal is not at issue in this appeal.

The trial court found that there was a meeting of the minds between the plaintiff and Spanos and that the May 8 contract was valid. Specifically, the judge held that on May 13 when Spanos struck the original price of $230,000, raised the price to $235,000 and initialed and signed the contract, and subsequently acquiesced to the original amount of $230,000, it had no impact on the moment in time when the parties entered into the alleged contract.

We disagree with the trial court’s finding that the May 8 contract was valid and that the subsequent negotiations between plaintiff and Spanos concerning the price were of no consequence.

An acceptance requiring any modification or change of terms constitutes a rejection of the original offer and becomes a counteroffer that must be accepted by the original offeror before a valid contract is formed. (Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 558, 484 N.E.2d 1178, citing Loeb v. Gray (1985), 131 Ill. App. 3d 793, 799, 475 N.E.2d 1342.) In the present case, plaintiff’s original May 8 offer of $230,000 was rejected by Spanos when he drew a line through the $230,000 figure, increased the price to $235,000, initialed the price change and signed the offer at the bottom. This created not an acceptance, but a counteroffer. Spanos’ oral acquiescence to the previously offered price constitutes an acceptance of a rejected offer. A rejected offer cannot be revived by later acceptance. (Ebert v. Dr. Scholl’s, 137 Ill. App. 3d 550, 484 N.E.2d 1178; Johnson v. Whitney Metal Tool Co. (1950), 342 Ill. App. 258, 96 N.E.2d 372.) On that basis alone, we find that the trial court erred in awarding specific performance to plaintiff.

We also believe that the action is barred by the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 2). Section 2 of that statute provides in relevant part:

“No action shall be brought to charge any person upon any contract for the sale of lands *** unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.”

Further, to be specifically enforceable, a contract for the sale of land must contain in writing the essential contract terms such as the names of the vendor and vendee, the price, and the terms and conditions of the sale. Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59.

Although the parties stipulated at trial that Spanos orally agreed with Vranas during a telephone conversation that he would reduce the price to the original $230,000, Spanos never initialed the document after plaintiff changed the written price to $230,000. Thus, the alleged contract fails to comply with the Statute of Frauds because one of the essential terms of the contract, the price, was never reduced to writing and signed by Spanos, the party to be charged.

We also note that this court has consistently held that specific performance may be granted only where there is a valid and enforceable contract. (Perkins v. Garcia (1990), 194 Ill. App. 3d 590, 593, 551 N.E.2d 258, citing Chicago Investment Corp. v. Dolins, 93 Ill. App. 3d 971, 418 N.E.2d 59.) In addition, where a party seeks specific performance of a contract, the law requires a greater degree of specificity than is demanded for other purposes. Where the court would be left to order further negotiations and where the parties have yet to reach agreement on essential terms, specific performance is not available. Cinman v. Reliance Federal Savings & Loan Association (1987), 155 Ill. App. 3d 417, 508 N.E.2d 239.

We conclude that a valid contract was not established. Accordingly, plaintiff is not entitled to specific performance. Having so concluded, we need not reach the issue raised by Tselepatiotis as to whether plaintiff’s later actions in submitting another contract on May 29 constituted an abandonment of the previously submitted offer. The issue of Tselepatiotis’ month-to-month tenancy in the restaurant premises also need not be reached, as he is now the owner of the entire building.

For the foregoing reasons, the judgment of the circuit court of Cook County granting specific performance to plaintiff and ordering Spanos to pay Tselepatiotis $2,500 is reversed.

Judgment reversed.

EGAN and RAKOWSKI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY LEE RIGGINS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—2446
    Opinion filed October 26, 1990.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Schiff, Hardin & Waite, both of Chicago (James A. Clark and Colette Holt, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Daniel G. Galivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Jimmy Lee Riggins, was convicted of murder and armed violence, and subsequently was sentenced to a 25-year prison term. Defendant appeals, contending that the State failed to prove beyond a reasonable doubt that he did not act in self-defense; that the submission of Illinois Pattern Jury Instructions on murder and voluntary manslaughter constituted grave error requiring reversal; and that the trial court erred in permitting certain improper impeachment of defendant.

The facts are as follows. Defendant testified that during the afternoon of June 30, 1986, he received kidney dialysis treatment at Jackson Park Hospital. At approximately 7:50 p.m., defendant left the hospital and went home. He lay down because he was feeling weak. He later arose and proceeded to the Black Marble Lounge. He stated that he still felt woozy and weak.

Defendant stated that when he arrived at the lounge, the first person he spoke with was the decedent, Kevin Williams. Williams and he had spent a lot of time together. Williams was seated at the bar with his back to the front door. After defendant purchased a package of cigarettes at a vending machine, Williams approached the other side of the vending machine and stood approximately four feet away from defendant. Williams then said, “All women are bitches.” Defendant responded that he did not have anything to do with that. Williams began making derogatory comments about women, and referred to defendant’s wife and mother, as well as his own mother, as bitches. Defendant told Williams not to make such comments about defendant’s mother. He also told Williams that he was going to leave this alone because Williams was trying to cause a problem.

Defendant stated that after speaking with Williams, he felt that the best thing to do would be to leave the lounge. Before leaving, defendant finished smoking a cigarette and told Tommy Taylor, another patron, that he was leaving. Defendant stated that he pulled the inner door of the lounge open and began to walk out of the door. As soon as he had the door open, defendant felt himself being attacked from behind. He stated that Williams grabbed him and slammed him against the pillar located in the entranceway. Defendant’s head struck the pillar, and he feared that the surgical implants in his arm might be torn out by the attack. At the time of the attack, defendant was facing south, in the direction of the lounge door.

Defendant testified further that the pillar in the lounge entrance-way was constructed of concrete or marble. Defendant noted that he received a small bump on his head as a result of being thrown against the pillar. He stated that there were no visible marks on his head because he was wearing a leather hat.

Defendant stated that after Williams slammed him into the pillar, Williams jammed his forearm under defendant’s neck. When Williams did so, defendant reached into his rear pocket and removed his knife. He flicked it open with his right hand and stabbed Williams. Defendant had no trouble opening the folding knife with only one hand. Defendant admitted that Williams was not choking him to death, and he knew that Williams was not armed. He also knew that Williams had been barred from drinking at the lounge, and this fact contributed to his fear and entered into his decision to use the knife. He had heard about Williams “hitting guys with stools and stabbing other people.” He thought that Williams was trying to kill him because of their conversation and the fact that defendant did not want to talk about it anymore.

Following the stabbing, Williams backed out of the entranceway and dropped to his knees. Defendant denied attempting to stab Williams while Williams was on the ground. Defendant stated that Williams suddenly jumped back up as if he was going to charge at defendant. Defendant changed the position of the knife so that he was holding the handle in his clenched fist with the blade extending downward. Williams remained standing for a few seconds and then turned and walked to the corner. Defendant stated that at this point, he heard John Jones shout to him, “[djon’t do that.” Defendant turned, closed the knife and put it away. He then got into his car and drove away.

As defendant drove away, he saw Williams on the trunk of a nearby car with his shirt pulled up. Richard McNeal and Vinckley Harris stood near Williams. Defendant proceeded to an acquaintance’s house, where he placed an ice pack on his head. Defendant left the acquaintance’s house several hours later. At that time, he saw Officer David Cristovic following him in a marked squad car. Cristovic stopped defendant, performed a pat-down, and recovered a knife from defendant’s pants pocket. He told defendant he was under arrest for murder and advised defendant of his constitutional rights. Defendant said that when Cristovic informed him he was being arrested for murder, he responded, “Oh, man, the guy died?”

When placed under arrest, defendant admitted that he had stabbed Williams, but stated that he acted in self-defense as Williams had struck him in the face. (Defendant later denied telling the police that Williams had struck him in the face. He subsequently admitted that although it was possible he had said so, Williams did not punch him in the face.) Cristovic testified that defendant told him that the knife in his pocket was not the knife with which he had stabbed Williams. He claimed to have thrown that knife on nearby railroad tracks. At the station, however, defendant admitted that the knife in his pocket was the knife that he used to stab Williams.

Cristovic testified that he saw no marks, scratches, injuries, abrasions or bruises of any kind on defendant. Officer Torence Davies, who interviewed defendant, corroborated Cristovic’s testimony in this regard. Additionally, intake photographs of defendant taken upon his arrival at jail reveal no injury.

Defendant testified that when he was taken to the jail, he told the paramedic and the doctors at Cermak Hospital that he had a head injury. He stated that the doctors informed him that he had a concussion. Defendant’s evaluation upon intake at the jail, however, revealed no marks, bruises, cuts or swelling anywhere on defendant’s body. The examining paramedic, Lenn Huffman, stated that defendant never indicated that he had any pain or injury to his head. Huffman testified that he specifically asked defendant if he had a head injury and that defendant replied that he did not. Defendant signed Huffman’s report following the examination.

A subsequent treating physician, Dr. Michael Puisis, testified that he had examined defendant several times, and that neurologists and other physicians also had examined him. None of the doctors ever found any evidence of an injury to defendant’s head.

During direct examination, defendant testified that he previously had been convicted of cocaine possession. On cross-examination, he testified that the conviction was not for possession of cocaine, but, rather, was for possession of a controlled substance with intent to deliver. He was on probation for that offense when he stabbed Williams.

Cortez Mack was tending bar at the lounge on the night of the incident. He testified that defendant came into the lounge at approximately 9 p.m. Mack saw Williams at the same time. Defendant did not drink anything and only stayed five minutes. Mack did not see defendant and Williams argue, nor did he see Williams do anything that would have given defendant cause to stab him.

Vinckley Harris was a patron in the lounge on the evening of the incident. He arrived at the lounge with Williams at approximately 10 p.m. He observed Williams and defendant near the cigarette machine. It appeared that defendant and Williams were having a mild argument. Harris walked to the front of the lounge, where he heard defendant tell Williams that the best thing he could do would be not to say anything else to defendant. Harris did not hear Williams say anything to defendant after that. Harris then left the lounge and stood on the corner.

As Harris stood on the corner, he heard the outer screen door of the lounge hit the building as it flung open. He turned around and saw Williams coming out the door backwards. Defendant was facing Williams and coming out after him. Defendant followed Williams onto the grass where Williams fell to the ground. While Williams was on the ground, defendant “came at him.” Williams was kicking and throwing his hands, attempting to keep defendant off him. Defendant had a knife and was trying to stab Williams while Williams was on the ground. Harris said that defendant had the knife raised while standing over Williams. At that point, John Jones shouted at defendant to stop. Defendant then backed away, got into his car, and drove off.

Harris and the other men outside the lounge helped Williams to a car. Williams told them he had been stabbed. Williams lifted up his shirt and grabbed the wound as blood began “gushing out.” Williams was taken to Jackson Park Hospital, where he died as the result of a single stab wound to the chest.

Harris testified that defendant and Williams were friends. Harris estimated that Williams and defendant saw each other at least once a week during the summer of 1986.

John Jones testified that at approximately 10:30 p.m. on the night of the incident, he was standing in front of the lounge. Jones was able to see the lounge door as well as the area between the door and the black pillar. Insofar as the events occurring outside the lounge are concerned, Jones’ testimony mirrored that of Harris.

Jones further testified that he had known Williams for approximately 15 years and that he never before had seen Williams involved in any altercations at the Black Marble Lounge. Willie Jett, a former bartender at the lounge, however, testified that Williams had been barred from the lounge because he had caused trouble in the past. Jett stated that Williams had hit him with a bar stool.

Richard McNeal was also outside the lounge when defendant stabbed Williams. His testimony corroborated that of Harris and Jones regarding the actions which occurred outside the lounge as Williams backed out with defendant after him. McNeal did not see defendant stab Williams, but he did see defendant trying to stab Williams. He never saw Williams strike defendant.

At the close of all the evidence, defendant moved for a directed verdict, contending that the State failed to prove beyond a reasonable doubt that his use of force was not justified. The court denied the motion. On appeal, defendant first challenges the propriety of that ruling. We find no merit in defendant’s contention.

A defendant’s motion for a directed verdict requires the trial court to consider whether a reasonable mind could fairly conclude the guilt of the accused beyond a reasonable doubt, considering the evidence in the light most favorable to the State. (People v. Withers (1981), 82 Ill. 2d 224, 429 N.E.2d 853.) More specifically, because defendant here raised the affirmative defense of self-defense, the trial court must consider whether a reasonable mind could fairly conclude that the State proved beyond a reasonable doubt that defendant did not act in self-defense when he stabbed and killed Williams. (People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.) We find that a reasonable mind could fairly conclude that the State proved beyond a reasonable doubt that defendant did not act in self-defense.

In order to successfully utilize the affirmative defense of self-defense, a defendant must demonstrate the following: that force has been threatened against him; that he is not the aggressor; that the danger of harm is imminent; that the force threatened is unlawful; that he actually believes a danger exists, that the use of force is necessary to avert the danger and that the kind and amount of force which he used was necessary; and that the above beliefs are reasonable. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Williams, 57 Ill. 2d 239, 311 N.E.2d 853.) The use of deadly force is limited to those situations in which the threatened force will cause death or great bodily harm, or the force threatened is a forcible felony. Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.

Defendant testified that Williams started an argument with him, attacked him from behind as defendant attempted to exit the lounge, and continued to attack him after the two men were outside of the lounge. Defendant knew that Williams was not choking him to death and that Williams was unarmed. Nevertheless, defendant used deadly force to ward off the attack. He stated that he stabbed Williams in an effort to prevent Williams from harming him. Defendant claimed he reasonably believed his use of force was necessary because Williams had been violent in the past. Defendant admitted, however, that he did not know whether it was really true that Williams had hit someone with a bar stool. Nor was he able to provide an example of Williams beating up other people. Defendant nonetheless maintains that his testimony was uncontradicted and that, accordingly, the State failed to prove he was not acting in self-defense.

In our view, the State provided sufficient evidence to refute defendant’s contention that he was acting out of self-defense. Three witnesses who were outside the lounge testified that they saw Williams backing out of the lounge door with defendant pursuing him. These witnesses also testified that defendant pursued Williams even after Williams backed out of the entranceway, across the sidewalk and onto the grass where he fell. Two of the witnesses testified that they saw defendant try to stab Williams while Williams was lying on the ground. The other witness testified that Williams was “kicking his legs trying to protect himself.”

Significantly, none of these witnesses testified that Williams jumped back up as if he were going to charge defendant. In fact, no witness, aside from defendant himself, testified that Williams had struck, pushed, shoved or otherwise physically touched defendant in any manner. Moreover, although Harris heard defendant and Williams arguing, he stated that it was not a significant argument. Mack testified that he heard no argument at all. And, although defendant testified that he was bruised by Williams’ attack, there was no evidence of physical injury, and defendant signed a statement that he had no head injury.

We believe that the jury properly resolved any conflicts in the testimony and determined that the evidence was more than ample to permit it to conclude that the stabbing was not done in self-defense. The jury reasonably could have concluded beyond a reasonable doubt that at the time of the stabbing, defendant was the aggressor; that the danger of harm to defendant was not imminent; and that defendant did not believe, either reasonably or unreasonably, that the force which he executed was necessary to prevent imminent death or great bodily harm to himself. See People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.

Moreover, we find that the jury’s resolution is particularly appropriate in light of the State’s substantial impeachment of defendant’s testimony. Defendant testified that Williams slammed him against a pillar and pinned him there by jamming his forearm under defendant’s neck. He claimed he feared Williams because of Williams’ reputation for violence. He admitted, however, that he did not know whether Williams actually had ever attacked anyone. Moreover, Cristovic, Davis and Huffman, all of whom closely observed defendant within hours of the stabbing, testified that defendant had no injuries. In fact, after the incident, defendant did not go to the police or seek medical treatment. Instead, defendant drove to a friend’s house to get ice for his head. His friend, whose last name or address defendant did not know, did not even own a refrigerator. Further, defendant signed a report which indicated that he had not complained of head injuries. The jury had the opportunity to see close-up photographs of defendant’s head, face and neck. These photographs reveal no injury.

Furthermore, defendant initially claimed that the knife recovered from him was not the knife used to kill Williams. He later admitted that this was a lie.. Defendant also initially denied telling the police that Williams had punched him in the face. He later admitted that it was “possible” that he did tell these things to the police. He then testified that the victim did not hit him in the face.

In our view, defendant’s testimony was impeached to the extent that the jury properly could have found it implausible. Thus, in light of the other testimony presented at trial, the jury properly could have concluded that the State had proved beyond a reasonable doubt that defendant was not acting in self-defense and that defendant was guilty of murder.

Defendant next contends that his murder conviction must be reversed because the jury instructions on murder and voluntary manslaughter misallocated the State’s burden to disprove the existence of a mitigating mental state. In People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, our supreme court held that the giving of the Illinois Pattern Jury Instructions (IPI) on murder and voluntary manslaughter was grave error. The jury in this case received the erroneous IPI instructions on murder and voluntary manslaughter.

Initially, we note that very recently our supreme court held that the Reddick error is not to be applied retroactively. (People v. Flowers (1990), 138 Ill. 2d 218.) Flowers, however, concerned itself with collateral attacks, so we will consider the Reddick claim as being applied retrospectively in the present direct appeal.

The error cited in Reddick occurs because the voluntary manslaughter instruction in conjunction with the murder instruction fails to inform the jury that the State bears the burden of disproving the mitigating mental states necessary to reduce a murder charge to manslaughter. (People v. Fercsi (1989), 182 Ill. App. 3d 13, 537 N.E.2d 912.) Such a combination of instructions, if followed by a jury, eliminates the possibility of a defendant being convicted of voluntary manslaughter, as the only way a mitigating mental state can be proved is by the defendant, rather than by the State. (People v. Fercsi, 182 Ill. App. 3d 13, 537 N.E.2d 912.) Nonetheless, an erroneous instruction is harmless if the result of the trial could have been the same had the proper instruction been given. (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.) Thus, a Reddick error can be harmless when a defendant fails to present sufficient evidence to justify reducing the charge from murder to voluntary manslaughter. See, e.g., People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354; People v. Thomas (1989), 185 Ill. App. 3d 1050, 542 N.E.2d 100; People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44; People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.

In People v. Carter this court addressed a factually similar situation, holding that the defendant’s murder conviction need not be reversed because the Reddick error was harmless beyond a reasonable doubt. The court concluded that the defendant could not have feared for his life, either reasonably or unreasonably, based upon the following: there was no evidence that the victim injured the defendant in any way; the victim was unarmed; the defendant was physically larger than the victim, who was stabbed four times. The defendant’s own testimony, as in the present case, was the only evidence in the record to support his claim that he acted in self-defense or with an unreasonable belief that he was acting in self-defense.

Another similar case was decided by this court in People v. Williams (1989), 205 Ill. App. 3d 751. In Williams, this court affirmed the defendant's conviction for murder, despite the fact that the trial court gave erroneous Reddick instructions. The court concluded that no evidence existed in the record which supported defendant’s contention that he could have unreasonably believed that circumstances existed which would justify the killing. The Williams court highlighted the following facts: the defendant carried a weapon on his person; the victims were unarmed; no evidence existed of any physical injury to the defendant or of any altercation between the parties. Further, two witnesses testified that they saw the victims plead with the defendant and try to fend him off. Again, as here, the only evidence which supported defendant’s unreasonable belief of justification was the defendant’s own testimony.

We find the present case to be similar to Carter and Williams in that the evidence of the defendant’s alleged belief in self-defense was contradicted by three witnesses who were present. While they did not see the actual stabbing, three witnesses testified that the victim backed out of the lounge after being stabbed, with defendant in pursuit. Defendant pursued the victim and continued his attack even after Williams had fallen to the ground. Two witnesses testified that defendant tried to stab the victim while the latter was lying on the ground. Another witness testified that he saw the victim while on the ground kicking to protect himself. A witness in the lounge testified that although the victim and defendant were arguing, it was not a heated argument. The bartender heard no argument at all. Further, as in Carter and Williams, defendant’s account of an attack by the victim was belied by defendant’s lack of any injury. No evidence existed of any physical injury to defendant and, in fact, defendant told the examining paramedic that he had no head injury and signed a statement to that effect. Finally, like the victims in Carter and Williams, the victim here was unarmed. Nevertheless, defendant used deadly force.

The only contrary testimony was that of defendant himself. As noted above, however, defendant’s testimony is replete with inconsistencies and admitted lies, and the jury was entitled to accord it little weight. We believe that the record, when viewed as a whole, demonstrates that defendant could not have feared for his life, not even unreasonably. Defendant failed to produce sufficient evidence to prove that he either reasonably or unreasonably believed that he was in danger and, therefore, has failed to demonstrate the mitigating mental condition of voluntary manslaughter required to shift the burden of disproving his belief to the State. In light of our findings above, we find that the instructions error was harmless. The State has overwhelmingly proved defendant guilty of murder, and in our view, the record does not support a different result. Thus, any error engen-. dered by the erroneous instructions was harmless beyond a reasonable doubt. See People v. Skipper, 177 Ill. App. 3d 684, 533 N.E.2d 44; People v. Carter, 177 Ill. App. 3d 593, 532 N.E.2d 531; Cf. Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, 1136 (erroneous Reddick instructions were not harmless because although the record showed that the jury could rationally have rejected the defendant’s theory of self-defense, the record did not demonstrate that “the jury could not have reasonably found that the killing was the result of provocation or unreasonable belief of justification”).

Defendant finally contends that the trial court erred in permitting the State to impeach him on a matter not raised during direct examination and collateral to the substantive issues in the case. Defendant specifically complains of the State’s line of questions regarding whether, and when, defendant was advised of his constitutional rights.

Cross-examination is limited to matters raised during direct examination. (People v. Rudi (1981), 94 Ill. App. 3d 856, 419 N.E.2d 646.) It is improper to ask a question merely for the purpose of contradicting the witness. (People v. Rudi, 94 Ill. App. 3d 856, 419 N.E.2d 646; People v. Persinger (1977), 49 Ill. App. 3d 116, 363 N.E.2d 897.) Nonetheless, the scope of cross-examination ordinarily rests within the discretion of the trial court, and the trial court’s determination regarding that scope will not be disturbed absent an. abuse of discretion. (People v. Watkins (1974), 23 Ill. App. 3d 1054, 320 N.E.2d 59.) We find that, here, the trial court did not abuse its discretion.

During defense counsel’s direct examination of defendant, defendant was asked whether the arresting officer had informed him of the charges against him, what his reply was to having been informed that he was being arrested for murder, and what else the arresting officer had said to him. Defendant was questioned about statements he made to the police concerning the location and identity of the murder weapon and about other statements he made to the police.

During cross-examination, over defendant’s objection, the prosecutor asked defendant if he had been advised of his constitutional rights, and defendant responded that he was not advised of his rights until he was within two to four blocks of the police station. On rebuttal, the prosecutor was permitted to perfect the impeachment of defendant’s testimony, again over defense counsel’s objection, by eliciting testimony from Cristovic that defendant was advised of his constitutional rights before he was placed in the squad car.

In our view, the trial court properly permitted the prosecutor to question defendant regarding this issue. Defense counsel’s questions regarding statements defendant had made to the police opened the door to this line of questioning. The jury was entitled to know the context in which defendant made these statements. Moreover, once defendant claimed he had not been advised of his rights immediately upon arrest, the State was entitled to rebut this testimony by calling Cristovic to testify to the contrary. The issue was material as it directly affected the weight his statements would be given by the jury. (See People v. McGhee (1974), 20 Ill. App. 3d 915, 314 N.E.2d 313.) Thus, we find the trial court properly overruled defense counsel’s objections to the prosecutor’s questioning. Moreover, if any error occurred, it was harmless.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE CAMPBELL

text:
    PAULINE BILLMAN, Indiv., et al., Plaintiffs-Appellants, v. CROWN-TRYGG CORPORATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2215
    Opinion filed October 29, 1990.

      Burditt, Bowles & Radzius, Chartered, of Chicago (William F. Haley and Jamie S. Freveletti, of counsel), for appellants.
    Alfieri, Abbene, Durkin & Dailey, Ltd., of Chicago (Albert E. Durkin and Robert D. Shearer, Jr., of counsel), for appellee Crown-Trygg Corporation.
    Heineke, Burke, Healy & Bodach, of Chicago (L. Barrett Bodach and Robert C. Farrar, of counsel), for appellee Virgil Cook & Sons, Inc.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, John H. Huston, and Christine L. Olson, of counsel), for appellee Albin Carlson & Co.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Pauline Billman, individually, Estel LeRoy Billman, individually, and Pauline Billman and Estel LeRoy Billman, as co-guardians of the estate and person of Thomas Austin McDonald, an incompetent, appeal the dismissal of counts VII and XV of their first amended complaint which alleged that defendants, Delta Construction, Inc., Gallagher Asphalt Corp., Frenzel Construction Co., Trygg Paving Co., Inc., Crown-Trygg Corp., Maintenance Coatings Co., Virgil Cook & Sons, Inc., Joliet Bridge & Construction Co., F.K. Ketler Co., Albin Carlson & Co., A.C. Pavement Striping Co., and Davis Concrete Construction Co., Inc., had been negligent in the reconstruction and modification of the intersection at Joliet Road and Route 53 in Romeoville, Illinois (the intersection). The trial court dismissed the counts on the ground that they were time barred by the statute of repose which governs actions brought against persons engaged in the design, planning, supervision, observation or management of construction or construction of an improvement to real property. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(b).) On appeal, plaintiffs contend that: (1) defendants’ construction activities at the intersection did not constitute an “improvement to real property” as contemplated by section 13 — 214(b) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(b)); (2) section 13 — 214(b) is limited in its application to buildings and their appurtenances; (3) application of section 13 — 214(b) to the facts at bar abolished plaintiffs’ remedy without affording them a reasonable time to bring suit; and (4) application of section 13 — 214(b) to include road design and construction violates the equal protection clause of the Illinois and the United States Constitutions. For the following reasons, the judgment of the trial court is affirmed.

The circumstances giving rise to this appeal are as follows. During the period from 1965 to 1968, defendants Crown-Trygg Corp. (Crown-Trygg), Virgil Cook & Sons, Inc. (Cook), Albin Carlson & Co. (Carlson), F.K. Ketler Co. (Ketler), and Joliet Bridge & Construction Co. (Joliet Bridge) performed certain construction work at the intersection. Subsequently, on August 22, 1984, plaintiff McDonald, while stopped in his automobile at a traffic signal in the northbound left-turn lane at the intersection, was struck by an automobile traveling southbound which had crossed over the median strip. The driver of the southbound car was allegedly intoxicated. McDonald suffered serious head injuries which rendered him comatose and resulted in his being adjudicated incompetent. On August 22, 1986, plaintiffs filed suit against defendants, alleging negligence. Thereafter, plaintiffs filed a first amended complaint, making changes not relevant to this appeal. In response, defendants Crown-Trygg, Cook, Carlson, Ketler and Joliet Bridge moved to dismiss counts VII and XV pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), on the ground that section 13 — 214(b) of the Code barred any action against defendants. The trial court granted the motion, but did not state in the order that the decision was final and appealable. As a result, plaintiffs were allowed additional time within which to file a motion for reconsideration. During this time, plaintiffs reached a settlement with Ketler and Joliet Bridge and those parties were dismissed from the action. Following a hearing on plaintiffs’ motion for reconsideration, the trial court entered a final and appealable order denying the motion. Plaintiffs’ timely appeal followed.

Initially, plaintiffs contend that defendants’ construction activities at the intersection did not constitute an “improvement to real property” as contemplated by section 13 — 214(b) of the Code, which provides, in pertinent part:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action as provided in subsection (a) of this Section.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(b).

In reliance on Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, plaintiffs argue that the work performed by defendants on the intersection was mere repair and replacement and not an improvement to real property. In Calumet, plaintiff engaged defendant to design, install and sell a piping connection between the municipal water supply pipe and the water supply pipe of plaintiff’s main clubhouse. The piping connection was installed during the period of October 30, 1980, through November 3, 1980. On June 21, 1981, the piping connection allegedly became separated and thousands of gallons of water flooded the basement and part of the first floor of plaintiff’s clubhouse.

On September 29, 1983, plaintiff filed a complaint alleging that defendant had been negligent. In response, defendant moved to dismiss the complaint based on the two-year limitations period of section 13 — 214(a). Plaintiff then filed an amended complaint, after which the trial court dismissed the action with prejudice as being time barred by section 13 — 214(a).

On appeal, plaintiff argued that the five-year limitations period of section 13 — 205 applied rather than the two-year limitations period of section 13 — 214(a). As does section 13 — 214(b), at issue in the present case, section 13 — 214(a) applies to:

“Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 214(a).)

At issue in Calumet was whether the piping connection was an “improvement to real property” as contemplated in section 13 — 214(a).

Looking to the actual language of section 13 — 214(a) and the commonly accepted meaning of that language, the Calumet court found that “improvement” means “an addition to real property amounting to more than a mere repair or replacement, and which substantially enhances the value of the property *** [including] substantial additions or changes.” (Calumet, 136 Ill. App. 3d at 613.) The court noted that while construction of a water main had been found to be an improvement, there was no case law characterizing a piping connection as an improvement. Having arrived at a definition for the phrase “improvement to real property,” the court reviewed the record and determined that, although the piping connection may have enhanced the value of the property, there was an insufficient basis in the record to determine whether the piping connection was a substantial new addition or a repair or replacement. Accordingly, the court reversed the dismissal of count I and remanded the cause for further proceedings, noting that “[i]f, on remand, the piping connection is properly established to be an improvement, dismissal would be proper at that time.” (136 Ill. App. 3d at 613.) Relying on the Calumet court’s definition of “improvement,” plaintiffs in the present case contend that the work performed by defendants was only a replacement and did not enhance the value of the property.

In our view, Calumet does not support the plaintiffs’ position. In the present case, unlike in Calumet, the pleadings contained sufficient information as to the type of work done at the intersection. Specifically, the uncontradicted affidavit of Howard E. Reeves, president of defendant Crown-Trygg, general contractor for the work done at the intersection, stated that the following work was completed at the relevant intersection and highways:

“(a) Existing highway was widened and resurfaced.
(b) Concrete medians were installed.
(c) Curbing and gutters were installed.
(d) Storm sewers were installed.”

Moreover, in light of the type of construction work performed by defendants, plaintiffs’ contention that the work constituted a mere repair or replacement is not supported by either recent case law (Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906; American National Bank & Trust Co. v. Booth/Hansen Associates, Ltd. (1989), 186 Ill. App. 3d 865, 542 N.E.2d 925; Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131) or by statutory law (Ill. Rev. Stat. 1987, ch. 24, par. 9— 3-2).

Most recently, in Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906, the court expanded the Calumet definition of “improvement” by stating that an “improvement” was a “ ‘valuable addition made to property *** or an amelioration in its condition, *** costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.’ ” (199 Ill. App. 3d at 921, quoting Hilliard v. Lummus Co. (7th Cir. 1987), 834 F.2d 1352, 1354 n.3.) Therefore, pursuant to Cross, an improvement need not only enhance the “value” of property, it may enhance the beauty or utility of that property or adapt it to different or further purposes.

Agreeing that an improvement involved more than a mere repair or replacement, the court in American National Bank & Trust Co. v. Booth/Hansen Associates, Ltd. (1989), 186 Ill. App. 3d 865, 542 N.E.2d 925, held that an excavation of property prior to construction constituted an "improvement,” and affirmed the trial court’s dismissal of the cause of action for untimely filing pursuant to section 13-214.

Similarly, in Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131, the court adopted Calumet’s definition of “improvement to real property” and held that the engineering and construction of an underground sewer system (the Deep Tunnel project) constituted an “improvement to real property,” as contemplated by section 13 — 214. In reaching its decision, the court noted that the Deep Tunnel project was “a sophisticated underground tunnel system for flood control and sewer distribution purposes” and that the record did not support a contention that the project was a mere repair or replacement of parts of the existing sewer system. 171 Ill. App. 3d at 140.

In addition, section 9 — 3—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 9 — 3—2) also supports the conclusion that the work performed by defendants at the intersection constituted an “improvement.” Section 9 — 3—2, which applies to all incorporated municipalities (Ill. Rev. Stat. 1987, ch. 24, par. 1 — 1—4), defines “local improvements” as including “the improving, widening or extending of any street, avenue, lane, alley or other public place by grading, paving, repaving, resurfacing, and constructing curbs, gutters, storm sewers, sanitary sewers, water mains, walks, gas mains, street lights and all necessary appurtenances thereto and otherwise improving the same, or repairing of curbs, gutters, storm sewers, sanitary sewers, water mains, walks, gas mains, street lights and all necessary appurtenances thereto and otherwise improving the same.” Ill. Rev. Stat. 1987, ch. 24, par. 9 — 3—2.

Applying the aforementioned case law and statutory law to the facts in the present case, we conclude that defendants’ construction work on the intersection constituted an improvement to real property as contemplated by section 13 — 214(b). The construction work enhanced the utility of the property (Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906), constituted substantial additional changes to the real property (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613), and included widening and improving a street by grading, paving, resurfacing and constructing curbs, gutters and storm sewers (Ill. Rev. Stat. 1987, ch. 24, par. 9 — 3—2).

With respect to plaintiffs’ contention that defendants Carlson and Cook, subcontractors, did not allege the specific work performed by them, Carlson and Cook performed the work contracted for by Crown-Trygg, as general contractor, which was delineated in the affidavit of Howard E. Reeves. The conclusion that the construction of the intersection, as detailed in the Reeves affidavit, constituted an improvement, by necessity, includes the work performed by the subcontractors.

Next, plaintiffs contend that section 13 — 214(b) is limited in its application to the construction of buildings and their appurtenances. In raising this issue, plaintiffs argue that the meaning of section 13— 214(b) is not clear on its face. Therefore, this court must determine the legislature’s intent by reviewing the relevant legislative history which, plaintiffs argue, indicates that the term “real property” was limited to buildings and their appurtenances, and does not encompass highway intersections.

The rules of statutory construction provide that in determining the intent of the legislature, courts must first look to the plain language of the statute and interpret the language according to its plain meaning. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) In that regard, “real property” is generally understood to be: “Land, and generally whatever is erected or growing upon or affixed to land.” (Blacks Law Dictionary 1096 (5th ed. 1979).) By its own terms, this definition would include the construction of highways, intersections, gutters, sewers and curbs. Moreover, recent case law supports the conclusion that “improvements to real property” is not an ambiguous term, and, thus, does not necessitate review of legislative history. Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906; American National Bank & Trust Co. v. Booth/Hansen Associates, Ltd. (1989), 186 Ill. App. 3d 865, 542 N.E.2d 925; Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131; Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613.

However, even if this court looked to the legislative history to determine the meaning of “real property” as it is used in section 13 — 214, the meaning would not be limited to buildings and their appurtenances. As indicated by defendant Crown-Trygg in its brief, during legislative debates on House Bill 1031, predecessor to section 13 — 214, in answer to a question as to whether the bill would apply to “such things as bridges,” Representative Dunn, sponsor of the bill, answered, “This legislation will apply to any improvement to real property.”

Plaintiffs emphasize the fact that during the debates, the word “building” was used extensively. It is clear from Representative Dunn’s clarification that the word “building” was used only as an example of real property and was not meant to be a limiting term. Further, if this court substituted the word “building” for “real property” in section 13 — 214(b), it would be improperly usurping the role of the legislature by reading into the statute words which were not the plain intention of the legislature. Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346.

Moreover, in our view, the fact that Illinois courts have consistently applied section 13 — 214 to the construction of buildings does not limit the meaning of “real property” to buildings. None of the cases hold, as plaintiffs would have this court believe, that- section 13 — 214 applies only to buildings. Rather, the construction at issue in the cases happened to concern buildings or their appurtenances, and the cases simply referenced this fact in their analysis.

Next, plaintiffs contend that application of section 13 — 214(b) to the facts at bar abolishes plaintiffs’ remedy without affording them a reasonable time to bring suit. As a premise for this argument, plaintiffs assert that, pursuant to Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408, and Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675, plaintiff McDonald had an existing, inchoate right of action at the time of the effective date of the 1981 amendment to section 13 — 214 which could not be instantaneously barred by the amendment even though the complaint was not filed until after the effective date of the amendment. Contrary to plaintiffs’ position, Moore and Costello defeat, rather than support, the premise for their argument.

In both Moore and Costello, the supreme court addressed retroactive application of a statute of repose to a plaintiff’s inchoate right. The Moore court defined an inchoate right as one which arises when a person is injured, whether or not that person is aware that he has been injured at that time. (Moore, 95 Ill. 2d at 232.) For example, in Moore, an appeal which consolidated the cases of plaintiffs Moore, Isaacs and Fenchel, each appeal involved the validity of the 1976 amendment to section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1). The relevant facts are as follows. Moore: surgery was performed on May 24, 1972. On March 17, 1978, Moore discovered that a needle had been negligently left in her body during surgery and filed her negligence complaint on October 4, 1978. Isaacs: X-ray treatments were given to him in 1940. In May 1977, Isaacs discovered that, as a result of these treatments, he had developed growths on his thyroid gland. Isaacs filed his complaint on May 16, 1978. Fenchel: X-ray treatments were given to Fenchel from 1941 to 1943. On January 31, 1978, Fenchel discovered that, as a result of the treatments, tumors had developed on her thyroid gland. Fenchel filed her complaint on January 29, 1980. With respect to each of these plaintiffs, the inchoate right to a cause of action arose at the time of the injury, i.e., when surgery was performed in 1972 and X-ray treatments were given in the 1940’s. Thus, the individual rights arose prior to the effective date of the 1976 amendment.

The Moore court determined that because the occurrences giving rise to the injuries had occurred prior to the effective date of the 1976 amendment to the Limitations Act, each plaintiff had an inchoate right which could not be denied by retroactive application of the amended statute. Once the Moore court determined that an inchoate right existed, the next question it addressed was whether each plaintiff had filed his or her cause of action within a reasonable time after having discovered the injury. If the plaintiffs had not had an inchoate right, the question of reasonableness would never have been reached.

Similarly, in Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675, plaintiff was exposed to asbestos from fall 1942 to spring 1945. He discovered that he had been injured due to the exposure in September 1980 and filed a lawsuit on October 23, 1981. The relevant statute of repose had been amended in 1979, adding a savings clause which stated that the statute would apply to any cause of action accruing on or after January 1, 1979, involving any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979. The supreme court found that plaintiff had an inchoate right to a cause of action prior to the effective date of the January 1, 1979, amendment, that the cause of action accrued subsequent to the amendment, and that the action had been reasonably commenced within three years of the effective date of the amendment and within two years of discovery. Accordingly, the court held that the complaint had been timely filed.

In the present case, plaintiffs contend that because the construction of the intersection was completed prior to the 1981 amendment to section 13 — 214, McDonald had an inchoate right of action as of the date of completion which could not be instantaneously barred by the amendment. However, pursuant to Moore and Costello, plaintiffs did not have an inchoate right of action in 1968 because McDonald had not been injured until nearly three years after the effective date of the 1981 amendment.

In our view, Erdie v. Central Illinois Public Service Co. (1988), 175 Ill. App. 3d 1050, 530 N.E.2d 514, is dispositive of the issue. In Erdie, plaintiff was injured on March 15, 1985, when the metal grating upon which he was walking collapsed and he fell approximately 30 feet to the ground. The incident occurred at the Central Illinois Public Service Company power plant (CIPS). Plaintiff originally filed his complaint against CIPS. When he subsequently learned that Western Architectural Iron Co. had sold the metal grating to CIPS and had installed the grating, he amended his complaint to include Western. Western then moved for summary judgment on the ground that the counts against it were barred by section 13 — 214(b), amended effective January 1, 1980, to limit its applicability to any cause accruing after January 1, 1979. In an affidavit attached to the motion, Western stated that it had last sold the ironwork and grating to CIPS on October 19, 1972, and that it had performed no work on the grating subsequent to that date. The trial court granted summary judgment in favor of Western.

On appeal, the reviewing court held that because plaintiffs injury had occurred subsequent to the January 1, 1980, amendment, he had no inchoate or vested right in a cause of action prior to the amendment. In response to plaintiffs argument that his rights were inchoate prior to January 1, 1980, because the metal grating, which had caused the injury, had been installed in 1972, the Erdie court stated, “This analysis flies in the face of the clear language of [the statute].” (175 Ill. App. 3d at 1053.) Similarly, in the present case, plaintiffs’ argument that McDonald had an inchoate right prior to 1981 because the intersection had been completed in 1968 “flies in the face” of the language of section 13 — 214(b).

Finally, plaintiffs argue that application of section 13— 214(b) to include road design and construction violates the equal protection clause of the Illinois and United States Constitutions. It is well established that for a statute which classifies individuals to be constitutional under the equal protection laws, the statute must have a reasonable basis for differentiating between class members and nonclass members, and the classification must bear a reasonable relationship to the purpose of the act. (Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613.) A statute is presumed to be valid, and the burden is on the party challenging it to establish its constitutional invalidity. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 416 N.E.2d 1082.) As a general rule, courts will not interfere with the legislature’s judgment unless classification is clearly unreasonable and palpably arbitrary, and will resolve all reasonable doubts in favor of upholding the validity of the statute. People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc. (1986), 114 Ill. 2d 252, 500 N.E.2d 34.

Without citation to legal authority, plaintiffs contend that the purpose of section 13 — 214(b) is to prevent the difficulty and increased cost of defending stale claims. Plaintiffs argue that while application of section 13 — 214(b) to building construction is reasonably related to that purpose, application to highway construction is not. As a basis for their distinction of the two types of construction, plaintiffs assert that building construction is fraught with latent defects, the defense of which requires “the defendant *** [t]o go to the trouble and expense of locating witnesses and documents, or in their absence, disassemble building structures to obtain the same information.” By contrast, plaintiffs assert that road construction cases involve only “open, obvious and patent defects, having absolutely nothing to do with construction techniques, adequacy of materials and other subtle problems.”

In our view, plaintiffs’ argument is unpersuasive on the grounds that it is void of legal authority and predicated on mere speculation as to the nature of road construction defects. Unsupported speculative theories such as that argued by plaintiffs are insufficient to overcome the presumption of the statute’s validity and to render a statute unconstitutional. See Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 416 N.E.2d 1082.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LISA CHICOS, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2960
    Opinion filed October 29, 1990.

      Lawrence Wolf Levin and Steven R. Decker, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Diann L. Doppelt, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Lisa Chicos was found guilty of possession of controlled substances and sentenced to four years in the Illinois Department of Corrections. Chicos appeals.

On October 30, 1987, Detective Charles A. Redman of the Chicago police department executed a complaint for a search warrant. In support of the complaint, Redman submitted his sworn affidavit. The affidavit stated, in pertinent part, that Redman had a conversation with a cooperating individual (Cl), that Redman had known the Cl for over one year, and that during the last six-week period, the Cl supplied information that resulted in the execution of two search warrants. As a result of those warrants, narcotic contraband was seized and the possessing person arrested. Redman’s affidavit stated that on October 30, 1987, the Cl told Redman that early that morning the Cl went to 2344 West Grand Avenue, Chicago, Cook County, Illinois, that upon arrival, he went to the second floor apartment and purchased marijuana obtained from a rear garage from “Torch.” Torch was described as a white male, 39 years old, 5 feet 8 inches tall, 200 pounds, with light brown hair and brown eyes.

Based on these averments, a search warrant was issued. Later that day, when Redman and other police officers executed the warrant, four individuals were present in the apartment, including Chi-cos. The apartment was searched and marijuana, valium, and a triple beam scale were found. Subsequently, Chicos was arrested, charged with possession of controlled substances, and confessed that she lived in the apartment and that the contraband was hers.

Prior to trial, Chicos filed a motion to quash the search warrant which included a Franks motion. At the hearing on the motion, Chi-cos testified that David Stone lived at the 2344 West Grand Avenue apartment; that Stone left the apartment on October 29, 1987, for Florida, and that he was not at the apartment at any time on October 30, 1987. Chicos described Stone as a man who was 5 feet 8 inches, 175 to 180 pounds, who had bright red hair and beard, and was known as “Torch.” Additionally, Chicos testified that on October 30, 1987, she was at 2344 West Grand Avenue in Chicago, but that her residence was 412 Oak Street in Glen Ellyn; that she spent the night of October 29, 1987, with her friend Rhonda Shue at the 2344 West Grand apartment; that Chicos and Rhonda Shue stayed at the apartment the entire day of October 30, 1987, and were later joined by some of Rhonda Shue’s friends around 4 p.m. The court denied the motion to quash the search warrant and also denied the request for a Franks hearing on the grounds that Chicos had not made a substantial showing.

Then, Chicos presented a motion to suppress her confession. The People called Officer Redman, who testified that subsequent to the execution of the search warrant, he had a conversation with Chicos in the apartment’s bedroom; that he advised Chicos of her Miranda rights; that Chicos said that she understood those rights and refused to talk to Officer Redman; that Chicos went into the living room for approximately five minutes but returned to the bedroom, where she indicated that she wanted to talk; and that Chicos then stated that she lived in the apartment and that the contraband was hers.

Officer Kenneth Cullen also testified. He testified that on October 30, 1987, he told Chicos that they were touring the area and found someone tampering with her garage. When Chicos agreed to come downstairs to identify the alleged subject, a man accompanied her. As they walked towards the squad car, an officer in the back of the car stepped out and detained Chicos and her male companion. Then, Chi-cos and the man were escorted back to the 2344 West Grand apartment, where the search warrant was executed. Officer Cullen’s partner, Officer Michael Landano, accompanied Officer Cullen on October 30, 1987. Officer Landano testified to the same sequence of events as Officer Cullen. However, Officer Landano did not enter 2344 West Grand to execute the search warrant.

Next, Lieutenant Michael Maher testified that he also executed the search warrant on October 30, 1987. He testified that he heard Detective Redman read Chicos her Miranda rights in the bedroom, and that he heard Chicos say that she understood her rights. Officer Maher also testified that a short while later, Officer Boyle came into the bedroom and told Detective Redman and Maher that Chicos wanted to speak with Redman. Then, Maher heard Redman call Chi-cos into the bedroom and heard Chicos say, “all of this dope is mine.” Then, Maher testified that Chicos went back into the living room.

Additionally, all of the officers and detectives testified that neither physical nor mental coercion was used to obtain Chicos’ statements.

Chicos testified that on October 30, 1987, she was in the bedroom at 2344 West Grand Avenue. At approximately 9:30 p.m., she opened the window and saw two officers. One of the officers told her that someone was breaking into the garage. Additionally, Chicos testified that her friend, Rhonda Shue, gave her some keys; that she went downstairs; that when she approached the squad car, she was “swarmed” by police officers with pointed guns; that when Detective Redman asked her if she lived there, she answered no; that Detective Redman showed her a search warrant and asked her to go upstairs; and that she opened the door with the keys Rhonda gave her and that she let the officers inside the apartment. Finally, Chicos testified that as she went from room to room, she was not read her rights; that the search lasted about an hour and a half; and that at no time did she admit that the drugs were hers or that she lived in the apartment.

After arguments, the trial court found that Chicos received and understood her rights; that she invoked her right to remain silent; and that when Chicos reinitiated a conversation, she voluntarily waived her rights. The trial court denied Chicos’ motion to suppress her confession.

Subsequently, Chicos was tried before a jury for the offense of possession of controlled substances. At trial, the testimony of the arresting officers was substantially similar to their testimony stated above. However, Officer Redman testified that upon gaining entry to the apartment, he found two plastic bags containing green plants, six clear plastic bags containing white powder, 10 clear plastic bags containing blue pills, a triple beam scale, and women’s clothing and shoes. Additionally, Detective Kouchoukos testified that at the police station, he asked Chicos where she lived and she stated that she resided at 2344 West Grand Avenue. Officer Boyle also testified, stating that he was with Chicos continuously during the search, except for the two times that Detective Redman spoke with Chicos in the bedroom, and that he did not hear Chicos read Miranda rights nor did he hear Chicos make any statements regarding ownership.

Finally, the State called Linda Jenkins, a chemist for the Chicago police department, to identify the seized items. She testified that the blue pills contained diazepam; that the substance in the clear packets tested positive for cocaine, and that the packets containing a green leafy substance tested positive for cannabis.

After Jenkins testified, the State rested. Chicos did not testify on her own behalf. Subsequently, the jury found Chicos guilty of possession of controlled substances (Ill. Rev. Stat. 1985, ch. 56 1/2, pars. 1401(a)(2), 704(e), 1401(f)), and the trial court sentenced Chicos to four years in the Illinois Department of Corrections. For the reasons set forth below, we affirm Chicos’ conviction.

First, Chicos argues that the trial court erred in denying an evidentiary hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, because she made a substantial preliminary showing of falsity in the search warrant affidavit. We disagree. In Franks, the Supreme Court permitted a limited challenge to the veracity of a warrant affidavit when (i) there is a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and (ii) the allegedly false statement was necessary to the finding of probable cause. (Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) The Franks court provided the following guidelines to determine the sufficiency of a preliminary showing: the search warrant affidavit is presumed valid; any attack on the affidavit’s veracity must be more than conclusory and must be supported by more than a desire to cross-examine; allegations of deliberate falsehood or reckless disregard of the truth are necessary and they must be supported by an offer of proof; allegations of simple negligence are insufficient; those portions of the affidavit which are allegedly false must be specifically identified; affidavits or otherwise reliable statements of witnesses (or satisfactory explanations of their absence) must accompany any challenge; and only the veracity of governmental affiants may be challenged. Even when the foregoing criteria have been satisfied, an evidentiary hearing is required only under circumstances where, if the material “that is the subject of the alleged falsity or reckless disregard is set to one side, there remains [insufficient content in the warrant affidavit to support a finding of probable cause.” (Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.) In determining whether a “substantial preliminary showing” has been made, the trial court must carefully balance the affidavit’s averments versus those statements which support Chicos’ challenge to the warrant, and its judgment will not be disturbed provided its discretion was exercised within permissible limits. People v. Lucente (1987), 116 Ill. 2d 133,153, 506 N.E.2d 1269.

The trial court acted within the scope of its discretion in determining that Chicos failed to make a substantial preliminary showing that a false statement was made in the search warrant affidavit, notwithstanding her testimony that no one came to the apartment in the early morning hours of October 30, 1987, that she was in the bedroom most of the day on October 30, 1987, that “Torch” had red hair rather than light brown, and that “Torch” was out of the State. The trial court was in the best position to determine the veracity of her statements in view of the fact that she was an interested party {Peo ple v. Lucente (1987), 116 Ill. 2d 133, 154, 506 N.E.2d 1269), and to determine Chicos’ credibility. Moreover, the trial court could reasonably conclude that Chicos failed to make a sufficient showing that it was impossible for the informant to have access to the apartment and that it was impossible for Torch to have sold narcotic contraband in the early morning of October 30, 1987. Chicos failed to call Rhonda Shue to testify, or submit Rhonda Shue’s affidavit, or explain the absence thereof, when by Chicos’ own admission Rhonda Shue was at 2344 West Grand the night of October 29 and the day of October 30, 1987. Accordingly, the trial court was entitled to conclude that Chicos did not sufficiently refute the truthfulness of the allegations in the warrant affidavit.

Next, Chicos argues that the trial court erred in allowing her statements that she lived in the apartment and that the contraband was hers into evidence because her constitutional rights were violated under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, when the police continued their interrogation after she exercised her right to remain silent. We disagree. A defendant’s rights under Miranda are not violated by the admission of volunteered statements, i.e., “[a]ny statement given freely and voluntarily without any compelling influences.” (Miranda v. Arizona (1966), 384 U.S. 436, 478, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630, cited in People v. Winchel (1987), 159 Ill. App. 3d 892, 908, 512 N.E.2d 1298, appeal denied (1987), 117 Ill. 2d 552, 517 N.E.2d 1094.) Volunteered statements may be given even after a defendant has been placed under arrest. (People v. Lang (1982), 106 Ill. App. 3d 808, 816, 436 N.E.2d 260.) The determination whether a statement was voluntarily made depends upon the totality of the circumstances, and the test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he or she made the statement. (People v. Britz (1984), 128 Ill. App. 3d 29, 40, 470 N.E.2d 1059, aff’d (1986), 112 Ill. 2d 314, 493 N.E.2d 575; People v. Winchel (1987), 159 Ill. App. 3d 892, 908, 512 N.E.2d 1298, appeal denied (1987), 117 Ill. 2d 552, 517 N.E.2d 1094.) The determination should consider these factors: the defendant’s age, education, emotional characteristics and experience in criminal matters, the nature of the interrogation, the length of defendant’s detention preceding the statement, whether the defendant was deprived of the necessities of life or counsel, and whether defendant’s exercise of constitutional rights was restricted by deception. (People v. Britz (1984), 128 Ill. App. 3d 29, 40, 470 N.E.2d 1059, affd (1986), 112 Ill. 2d 314, 493 N.E.2d 575; People v. Winchel (1987), 159 Ill. App. 3d 892, 908, 512 N.E.2d 1298, appeal denied (1987), 117 Ill. 2d 552, 517 N.E.2d 1094.) The trial court’s determination that Chicos initiated conversation and voluntarily made the statements will not be disturbed because it is not contrary to the manifest weight of the evidence after considering Officer Redman and Lieutenant Maher’s testimony during the motion to suppress. Additionally, Chicos has not argued or presented any evidence that her will was overcome, that the statements were coerced, or that she was detained unreasonably long. Furthermore, the State is not required to show either that Miranda warnings were administered immediately preceding the statement, or that there was an effective waiver of those rights, because Chicos was already advised of her Miranda rights when she reinitiated conversation. (People v. Winchel (1987), 159 Ill. App. 3d 892, 911, 512 N.E.2d 1298, appeal denied (1987), 117 Ill. 2d 552, 517 N.E.2d 1094.) Therefore, Chicos’ statements were admissible.

Finally, Chicos argues that the State failed to prove her guilty beyond a reasonable doubt. We disagree. In order to sustain a conviction for possession of a controlled substance, the State must prove that Chi-cos knew of the presence of the substance and that the substance was in her immediate and exclusive control. (People v. Rentsch (1988), 167 Ill. App. 3d 368, 370, 521 N.E.2d 213.) Possession may be actual or constructive. (Rentsch, 167 Ill. App. 3d at 370.) Constructive possession exists without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion. (Rentsch, 167 Ill. App. 3d at 370.) This court will not reverse a conviction unless “after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, cert, denied (1990),_U.S__, 111 L. Ed. 2d 798, 110 S. Ct. 3290, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) We find that a rational trier of fact could have found Chicos guilty of possessing controlled substances when the evidence showed that Chicos had control over the apartment because she possessed a key to the apartment and that Chicos confessed to Detective Redman that she lived in the apartment and that the contraband was hers. Moreover, courts have held that there is an inference of knowledge and possession, which may be sufficient to sustain a conviction for unlawful possession of controlled substances, when controlled substances are found on premises under the control of a defendant. (People v. Rentsch (1988), 167 Ill. App. 3d 368, 371, 521 N.E.2d 213.) Accordingly, the jury’s determination that the State proved Chicos guilty of possessing contraband beyond a reasonable doubt will not be overturned. Based on the foregoing, Chicos’ conviction is affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.