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    THE VILLAGE OF FOX RIVER VALLEY GARDENS et al., Plaintiffs-Ap-pellees and Cross-Appellants, v. THE LAKE COUNTY FOREST PRESERVE DISTRICT, Defendant-Appellant and Cross-Appellee (The Lake County Forest Preserve District, Plaintiff-Appellant and Cross-Appellee; American National Bank & Trust Company of Chicago, as Trustee, et al., Defendants-Appellees and Cross-Appellants).
    Second District
    No. 2—91—0393
    Opinion filed January 31, 1992.

      Margaret M. Borcia, of Donald T. Morrison & Associates, P.C., of Waukegan (Joseph T. Morrison, of counsel), for appellant.
    Erin M. O’Connor, of Richards, Ralph, Eiden, Eckert & O’Donnell, Chartered, of Vernon Hills (Robert T. O’Donnell, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

This case involves an appeal and cross-appeal from an order disposing of two separate actions which were consolidated in the circuit court of Lake County. The order dismissed an eminent domain action brought by the Lake County Forest Preserve District (District) and entered judgment in favor of the Village of Fox River Valley Gardens (Village) and The Moorings on Fox River Limited Partnership (Partnership) in their action for declaratory judgment. The District appeals from the disposition of both actions, while the Village and Partnership cross-appeal from a number of adverse findings made by the trial court in reaching its decision.

The District seeks to condemn 225 acres of open land located entirely within the Village. Owned prior to August 1989 by the Cashmore family, the parcel (Cashmore property) lies along the north bank of the Fox River and consists in large part of wetlands and flood plain. Directly across the river, on the south bank, is Lyons Prairie, a 440-acre parcel of land owned by the McHenry County Conservation District. (See figure No. 1.) The southernmost boundary of the Cashmore property meets the northern boundary of Lyons Prairie at the center line of the Fox River.

The Village’s population, as reflected in the 1990 census, consisted of 665 persons. While it is not altogether clear which evidence was admitted by the trial court on the point, there is indication in the record that the residents relied solely on septic systems for sewage disposal since the Village did not have a municipal sanitary sewer system. There is also intimation in the record that problems had developed with at least some of those systems.

In January 1989 the Partnership entered into a contract for the purchase of the Cashmore property. Between January and June 1989 the Partnership conducted various activities necessary for the development of the parcel, such as environmental studies, surveys, and utilities investigations. The District began exploring the possibility of acquiring the Cashmore property in June 1989 by initiating an environmental assessment of the land.

On August 16, 1989, the Village annexed the Cashmore property pursuant to an annexation agreement between the Village and the Partnership. Under the terms of this agreement, the Village was bound to withhold its concurrence or consent to any condemnation proceedings affecting the property brought by any private association or governmental entity, including the District. The agreement also required the Partnership to install oversized sanitary sewer lines on the property, thus making sanitary sewer service available to the entire Village. Shortly following annexation the Partnership purchased the property for $4,700,000.

The following October, the District resolved to acquire the Cashmore property and ordered an appraisal of the parcel. In May 1990 the District informed the Village of its interest in the recently annexed Cashmore property. Later the same month the Village accepted, by oral resolution, a donation from the Partnership of a 20-foot-wide strip of land adjacent to and running along the entire southernmost boundary of the Cashmore property. Since that boundary is located at the center line of the Fox River, the 20-foot-wide strip begins in the middle of, and lies entirely within, the bed of the river. The conveyance was subject to a number of conditions, including agreement by the Village to reconvey the property to the Partnership upon request.

On June 18, 1990, after receiving and approving an appraisal of the property, the District offered to purchase the Cashmore parcel from the Partnership at the full amount of the appraisal. On June 20 the attorney for the District appeared at a Village Board meeting seeking the Village’s consent to the District’s purchase or condemnation of the Cashmore property. The requested consent was not given, and the following day the Partnership deeded the 20-foot strip to the Village.

On July 30, following the District’s adoption of a resolution authorizing both a final offer to the Partnership and, if necessary, an action in eminent domain, the Village and Partnership filed a complaint for declaratory judgment and injunctive relief. The complaint sought a judicial determination that the District did not have the statutory authority to acquire the Cashmore property. The District filed its complaint in eminent domain four days later. Both complaints cited to section 6 of “An Act to provide for the creation and management of forest preserve districts in counties having a population of less than 3,000,000” (Ill. Rev. Stat. 1989, ch. 96½, par. 6301 et seq.), now known as the Downstate Forest Preserve District Act (see Ill. Rev. Stat., 1990 Supp., ch. 96½, par. 6300) (hereinafter Act), for the parties’ respective positions as to the District’s authority to condemn the Cashmore property. Section 6 of the Act states, in pertinent part:

“Any such District shall have power to acquire lands and grounds for the aforesaid purposes by *** purchase or condemnation ***. No district with a population less than 600,000 shall have the power to purchase, condemn, lease or acquire an easement in property within a municipality without the concurrence of the governing body of the municipality, except where such district is acquiring land for a linear park or trail not to exceed 100 yards in width or is acquiring land contiguous to an existing park or forest preserve ***.” (Ill. Rev. Stat. 1989, ch. 96½, par. 6309.)

The parties do not dispute that the District has a population less than 600,000.

The District subsequently filed a motion to dismiss the declaratory judgment complaint, and the Village and Partnership (hereinafter collectively, Owners) filed a traverse and motion to dismiss the eminent domain action. In their motion the Owners alleged that the District did not have the authority to condemn the Cashmore property because (1) part of the property was owned by the Village, and the District could not condemn public property; and (2) the Village had not consented to the District’s condemnation, and the property sought did not fall within any of the statutory exceptions to the consent requirement. The District’s motion to dismiss was denied, and the hearing on the Owners’ traverse and motion to dismiss the eminent domain action was consolidated with the trial of the declaratory judgment action. At trial the District sought to show that the Cashmore property fell within the statutory exception for land contiguous to an existing park or forest preserve. The District argued that the property was contiguous to Lyons Prairie and that Lyons Prairie qualified as an existing park or forest preserve.

Following the trial the court entered an order which included numerous findings of fact and law. The court’s final conclusion, briefly summarized, was that, although the Cashmore property and Lyons Prairie were contiguous as a matter of law, Lyons Prairie was not a park or forest preserve as required by the statute. As a consequence, in the absence of municipal consent, the District did not have the statutory power to acquire the Cashmore property through condemnation. Accordingly, the court entered judgment in favor of the Owners in the declaratory judgment action and dismissed the complaint in the eminent domain action. This timely appeal and cross-appeal followed.

As a preliminary matter, we address two motions, and the objections thereto, which we ordered to be taken with the case. The District first moved to strike the statement of facts contained in the Owners’ brief. The District asserts that the statement of facts contains numerous recitals which are either not supported by, or inconsistent with, the record. We have extensively reviewed the record of this case and considered each point raised by the District, along with the Owners’ corresponding response. It is true the Owners included argumentative, conclusory and, occasionally, emotionally charged remarks in their statement of facts. However, we find the statement otherwise adequately supported by the record. Certainly, nothing in the statement is so misleading as to have interfered with or precluded our review. Under these circumstances the statement of facts need not be stricken. (See Koplin v. Hinsdale Hospital (1990), 207 Ill. App. 3d 219, 223-24.) We note, though, that we do find questionable a number of the Owners’ objections which claim the District admitted to the particular statement challenged by the motion to strike. The alleged admissions appear tenuous, at best. We remark also that the Owners rely in part on, as they put it, “reasonable and fair inferences drawn from the record on appeal.” We stress, as we did in Koplin (207 Ill. App. 3d at 224), that reasonable inferences, even though drawn from the record as a whole, are not facts and are inappropriate in a statement of facts. Nevertheless, the District’s motion to strike the Owners’ statement of facts is denied.

The District’s second motion is to strike the Owners’ argument that the Village acquired the 20-foot strip of land for the proper public purpose of providing sanitary sewer service to Village residents. The District insists that there was no evidence or testimony in the record to support this argument. The Owners respond by quoting remarks made by the court at trial which purportedly show evidence was admitted on the issue. We have carefully considered the cited remarks and have no doubt that the lower court admitted and considered evidence that the Village believed or had made a determination that it needed a sanitary sewer system and was attempting to secure such a system in conjunction with development of the Cashmore property. The court specifically referred to the annexation agreement between the partnership and the Village as evidence of this Village determination. While it also appears that the court found other evidence, i.e., evidence relating to the actual need for sanitary sewers, to be irrelevant, the evidence that was admitted supports the Owners’ argument, albeit in a somewhat roundabout way, that the 20-foot strips were conveyed for a proper public purpose. Thus, that argument need not be stricken.

We turn now to the substantive issues raised on appeal. The District first contends the trial court erred in finding that Lyons Prairie is not a “park or forest preserve” as that phrase is used in the statute. The court construed the statute to mean that land within a municipality sought to be acquired without the municipality's consent must be contiguous to existing park district or forest preserve district property.

Initially, the District argues that the term “park” in the statute is clear and unambiguous and the trial court, therefore, was not required to interpret the word in the first place. Alternatively, according to the District’s argument, the lower court gave the statute an erroneous interpretation when it determined that “park” referred to existing park district property. The Owners counter that the trial court reached the right conclusion but posit that the better interpretation is that “an existing park or forest preserve” refers only to parks or forest preserves already owned by the acquiring forest preserve district.

As often stated, the fundamental rule of statutory construction is to give effect to the intent of the legislature. (State v. Mikusch (1990), 138 Ill. 2d 242, 247.) In order to do so, a court looks first to the language of the statute, and, if the language is clear and unambiguous, the court should give it effect and not employ extrinsic aids to construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) We think the broad terminology in the Act, standing alone, does not convey in plain and certain fashion what the legislature meant by “park or forest preserve.” In particular, it is readily apparent that “park” is a general name for sites ranging all the way from national parks to local tot playgrounds. Where, as here, a statute is susceptible to more than one interpretation, it is appropriate to look beyond its language and examine other sources for evidence of legislative intent. (Logston, 103 Ill. 2d at 279; Mister v. A.R.K. Partnership (1990), 197 Ill. App. 3d 105, 119 (Reinhard, J., specially concurring).) When attempting to discover legislative intent, a court should consider statutes in their entirety, noting the subject addressed and the apparent objective of the legislature in enacting them. (Mikusch, 138 Ill. 2d at 247.) Application of these principles persuades us that, although section 6 of the Act places limits on a forest preserve district’s power to acquire property located within a municipality, the legislature did not intend so severe a restriction as either determined by the trial court or suggested by the Owners.

We note initially that the trial court referred, without explanation or clarification, to “park district or forest preserve district” property. We assume, as the parties appear to do also, that the references are to park districts as provided for in the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 1—1 et seq.) and forest preserve districts as provided for in the Act and related statutes. Such districts are specific and unique statutory entities. It would have been a simple matter for the legislature to indicate that acquisitions had to be contiguous to parcels owned by such entities. The legislature did not do so. Furthermore, park district and forest preserve district lands are far more limited than parks and forest preserves in general. So obvious an omission by the legislature of the limiting language imported by the trial court is not likely to have been a matter of oversight.

The limitation found by the trial court makes little sense in light of the many entities other than park districts and forest preserve districts which may hold land similar to that held by park districts and forest preserve districts. For example, it is common knowledge that national forests, national parks and State parks, and various conservation districts all maintain a variety of park lands and forests. Parks and/or forests may also be owned by counties (Ill. Rev. Stat. 1989, ch. 34, pars. 5—1005, 5—1049), townships (Ill. Rev. Stat. 1989, ch. 105, par. 319), and cities and villages (Ill. Rev. Stat. 1989, ch. 24, pars. 11—98—1, 11—99—1,11—100—1).

The legislature cannot have meant to allow a forest preserve district to acquire land adjacent to a park belonging to a park district, without municipal consent, and, at the same time, prohibit a forest preserve district from acquiring land adjacent to a very similar park, unless it secures municipal consent, merely because the park belongs to the township or the county. The same holds true for forest lands held by a forest preserve district as opposed to forests held by a county or the State or national park system. It is presumed the legislature did not intend its legislation to result in absurd or unreasonable consequences. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 363; Tersavich v. First National Bank & Trust Co. (1990), 194 Ill. App. 3d 972, 977-78.) We will not expand and twist the meaning of the words used by the legislature to support an unreasonable result. See Droste v. Kerner (1966), 34 Ill. 2d 495, 504.

Much of what we have just said is equally applicable to the Owners’ contention that the existing park or forest preserve called for by the statute must be owned by the forest preserve district seeking to acquire new property. Had the legislature intended such a limitation, it could easily have worded the statute accordingly. We think it apparent that the requirement for municipal consent reflects a legislative attempt to balance the rights of forest preserve districts to acquire land for forest preserve purposes against the rights of municipalities to determine the uses of land within the municipality. Although we have not found any relevant legislative debate, this balancing process, by its very nature, almost certainly engendered thoughtful and thorough reflection on the proper scope of the exceptions to the municipal consent requirement before the excepting language was adopted. Thus, it is likely the legislature considered and rejected the limitation urged by the Owners.

Too, the very fact the legislature used a balancing approach is persuasive that it did not intend to restrict unduly forest preserve district acquisitions. The requirement of municipal consent prevents the wholesale conversion into forest preserve uses of lands which might otherwise be put to residential, commercial, or any other use designated by the municipality. At the same time, the Act clearly contemplates the acquisition of land within the municipalities encompassed by a forest preserve district and thereby allows the orderly growth and development of forest preserve districts. If the only exception to municipal consent was for expansion of existing forest preserves and such expansion was not feasible in a given forest preserve district, that district — e.g., a district consisting entirely of nonconsenting municipalities — could be totally frustrated in the pursuit of its legislatively created goals. In our view, the legislature avoided this roadblock by providing at least one mechanism for acquiring forest lands, without municipal consent, in areas where a forest preserve district previously had no presence. We conclude that the legislature made careful word choices and did not intend to confine forest preserve district acquisitions to only those parcels adjacent to forest preserves already owned by the acquiring district.

It remains to be determined whether Lyons Prairie falls within the scope of “an existing park or forest preserve” as the phrase appears in the statute. Notably, the legislature used the word “existing” in conjunction with “park or forest preserve.” As we have indicated, we do not think this phraseology was meant to limit acquisitions to property adjacent to sites already owned by a forest preserve district. Rather, we believe it reasonable to conclude the legislators were referring to sites similar in character and/or use to the kind of land normally considered forest preserve and routinely held by forest preserve districts. After all, the statute is concerned exclusively with forest preserve districts, which are given the power to create forest preserves by acquiring land containing “natural forests or parts thereof.” Ill. Rev. Stat. 1989, ch. 96½, par. 6308.

In addition, the meaning we give to the ambiguous phrase is consistent with the statutory objectives discussed above. It allows a forest preserve district to acquire property within a municipality, but only in a location where similar property is already present and dedicated to forest preserve or similar uses. In effect, the new acquisition would result only in the expansion of an existing use in an area the municipality would be less likely to have designated for more intensive uses. Thus, the intrusion on the municipality would be minimized.

In sum, the “existing park or forest preserve” called for in the statutory exception must be similar in nature or, at the very least, similar in use to properties presently owned and utilized as forest preserves. Accordingly, we must determine whether Lyons Prairie is sufficiently similar to a forest preserve site, as such sites are envisioned by the statute, to find that it is an “existing park or forest preserve.”

A forest preserve district may be formed when, among other things, an area of contiguous territory contains one or more “natural forests or parks [sic] thereof” (Ill. Rev. Stat. 1989, ch. 96½, par. 6302). As noted above, forest preserve districts have the power to create “forest preserves” by acquiring lands containing one or more “natural forests or parts thereof.” (Ill. Rev. Stat. 1989, ch. 96½, par. 6308.) According to Webster’s Third New International Dictionary 890 (1986), a “forest” consists of “a dense growth of trees and underbrush covering a large tract of land.” We think this definition capsulizes the ordinary person’s concept of a forest, i.e., an extensive, and at least in part, densely wooded tract of land, unimproved and, for the most part, in its natural state.

In order to create a forest preserve, a forest preserve district may acquire not only forests but also land connecting forests and “lands capable of being forested, or capable of being restored to a natural condition.” (Ill. Rev. Stat. 1989, ch. 96½, par. 6308.) Such lands may be held “for the purpose of protecting and preserving the flora, fauna, and scenic beauties within such district, and to restore, restock, protect and preserve the natural forests and such lands together with their flora and fauna, as nearly as may be, in their natural state and condition, for the purpose of the education, pleasure, and recreation of the public.” Ill. Rev. Stat. 1989, ch. 96½, par. 6308.

While Lyons Prairie is not a forest preserve, it is similar in both nature and use to such a preserve. The property is owned by the McHenry County Conservation District. The principal purpose of a conservation district is to:

“[A]equire ***, preserve and maintain wildland, other open land, scenic roadways and pathways; hold such real property, with or without public access, for the education, pleasure and recreation of the public or for other open space values; preserve portions thereof in their natural condition and undertake development of other portions thereof; manage and use such real property in such manner and with such restrictions as will leave it unimpaired for the benefit of future generations; and otherwise promote the conservation of nature, flora and fauna, natural environment and natural resources of the district.” (Ill. Rev. Stat. 1989, ch. 96½, par. 7103.)

Further, “[e]very [conservation] district shall consider the preservation of natural conditions and protection of flora and fauna as part of its principal purpose and to that end shall set aside a substantial portion of its land to remain in an essentially undisturbed condition.” Ill. Rev. Stat. 1989, ch. 96½, par. 7111.

Testimony given at trial provided evidence of the particular character and usage of Lyons Prairie. According to Steven Weller, the planning and development manager for the McHenry County Conservation District, Lyons Prairie consists of approximately 440 acres. About 299 of those acres have been dedicated as an Illinois Nature Preserve and consist of wet prairie and a marsh. Other portions of the property are forested. Lyons Prairie, including the portion which lies in the Fox River, has been used for canoe trips, hiking, and public education programs. The Conservation District had made various improvements to the property, including roads, parking, trails, and toilet facilities, to allow additional public use of the Lyons Prairie.

As can readily be seen from the respective statutes, while there are differences between forest preserve districts and conservation districts, the two kinds of districts also have common purposes: conservation and protection of natural and scenic resources; preservation of such resources in their natural state; and maintenance of resources for the education, pleasure and recreation of the public. (See People ex rel. Vermilion County Conservation District v. Lenover (1969), 43 Ill. 2d 209, 218.) Additionally, the evidence showed that Lyons Prairie is a large and at least partially forested site and is being used for the pleasure and education of the public. Thus, Lyons Prairie is similar to a forest preserve parcel, not only in purpose but also in nature and use. Collectively, these circumstances convince us that Lyons Prairie is precisely the type of site the legislature had in mind when it required a contiguous “existing park or forest preserve” in order for a forest preserve district to acquire land located within a municipality without that municipality’s consent.

The Owners maintain that, even if Lyons Prairie is considered to be a park or forest preserve, the statutory exception to the municipal consent requirement does not apply because the Cashmore property and Lyons Prairie are not contiguous, as required by the Act. Visually, the Cashmore property and Lyons Prairie lie directly across the Fox River from each other. (See Fig. No. 1.) However, the title to each property extends to the center of the river bed. Thus, the properties meet in the middle of the Fox River. The Owners insist that the river constitutes an intervening use which destroys any contiguity which might otherwise exist. The trial court expressly found that, as a matter of law, the two pieces of property were contiguous, and the contiguity was not affected by the river. To the contrary, the court found that the river was part of the uses of both properties. We agree.

The word “contiguity” has been found to mean “ ‘in actual contact; touching or adjoining.’ ” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 352, quoting Webster’s New Collegiate Dictionary, at 180 (2d ed.).) While we have found no definition of “contiguity” specific to the statute controlling forest preserve districts, in other contexts contiguity has been said to exist where tracts of land touch or adjoin each other in a reasonably substantial physical sense (Western National Bank, 19 Ill. 2d at 352; In re Annexation to the Village of Downers Grove (1981), 92 Ill. App. 3d 682, 685), or where the parcels have a substantial common boundary or a common border of reasonable length or width (Frank v. Village of Barrington Hills (1982), 106 Ill. App. 3d 747, 755; Wescom, Inc. v. Woodridge Park District (1977), 49 Ill. App. 3d 903, 907). We see no reason to believe the legislature contemplated a different meaning for “contiguity” when it used the term to help delineate what land could be acquired by a forest preserve district under the exception to the municipal consent requirement.

The Owners recognize the general principle set forth above regarding contiguity but insist the Fox River prevents Lyons Prairie and the Cashmore property from touching in a reasonably substantial physical sense. There is no merit to this argument. The two tracts of land do, in fact, meet at the center line of the river and touch each other in a totally physical sense. They share an extensive common boundary as reflected in Figure No. 1. That they happen to meet at the center of the river does not detract from their physical meeting. This merely means that part of the river is on Lyons Prairie property and part is on the Cashmore property, and, as the trial court noted, the river constitutes part of the uses of both properties. In our view Lyons Prairie and the Cashmore property are contiguous in the sense that they adjoin physically along a decidedly substantial common boundary.

The Owners urge us to look beyond what they call the “technical” meeting or touching of the two properties and ask us to find that they are not contiguous because they lack unity of purpose and facilities. Such unity was said to form “the very basis for the requirement of contiguity” in People ex rel. Village of South Barrington v. Village of Hoffman Estates (1964), 30 Ill. 2d 385, 387. The Owners point out that the rights of the parties owning the two properties are subject to the right of the public to use the river and claim that the Lake County Forest Preserve District and the McHenry County Conservation District would not use their respective properties in the same manner or for the same purposes. They insist that the river frustrates the unity of purpose and facilities which should exist between properties if they are to be considered contiguous.

The Owners’ reliance on Village of Hoffman Estates is of no avail. The court there applied a “unity of purpose and facilities” test precisely because the territory to be annexed did not physically adjoin the village. However, the village was already providing significant municipal services to the annexed area, and a basis for contiguity, other than physical contact or a common boundary, was appropriate. In contrast, the Cashmore property is physically contiguous to Lyons Prairie, and the “unity of purpose and facilities” test urged by the Owners need not be invoked. We note too that, as we fully and effectively discussed in In re Annexation to Village of Downers Grove (92 Ill. App. 3d at 686), Village of Hoffman Estates has been narrowly interpreted by the appellate court. We perceive no reason to apply its principles here in order to find a lack of contiguity when physical contiguity is present. Moreover, as may be implied from our earlier discussion, we do not think the respective purposes and uses of forest preserves and conservation lands are nearly so dissimilar as the Owners would have us believe.

The Owners also attack the trial court’s conclusion regarding contiguity by claiming that the 20-foot strip of land donated to the Village by the Partnership separated the Cashmore property and Lyons Prairie and, thereby, precluded contiguity of the two parcels. The trial court made a number of findings relevant to this issue and determined essentially that the conveyance had been a sham and could not be used to frustrate the District’s right of eminent domain.

The Owners assert initially that the trial court erred in allowing a collateral attack on the conveyance. They insist the District did not have standing to mount such an attack. In addition, the Owners vigorously contest the court’s findings that (1) the sole purpose of the conveyance was to destroy contiguity between the Cashmore property and Lyons Prairie, and (2) that the agreement between the Village and the Partnership, which required the Village to re-convey the strip of land to the Partnership at their request, resulted in the Village acquiring only a bare deed of ownership but no actual rights to use the land.

With regard to the standing issue, the Owners cite Mills v. Forest Preserve District (1931), 345 Ill. 503, for the rule that, where a municipal corporation enjoys general authority to hold land, title to land acquired may not be questioned collaterally, on the ground that the municipal corporation lacked the power to acquire the land, by anyone other than the State. Mills is not supportive of the Owners’ position. In Mills a dissatisfied seller sought to rescind the sale of his land to the defendant forest preserve district. Relief was denied to the seller because he had received everything he contracted for, and it was no concern of his whether the defendant had acted beyond its power. The Mills court would not allow the defendant to get out of the bargain he had voluntarily made by focusing on the forest preserve district’s unauthorized conduct. (See Egidi v. Town of Libertyville (1991), 218 Ill. App. 3d 596, 604-05.) In contrast to Mills, in this case the District seeks only to exercise the power of eminent domain granted to it by statute. (See Ill. Rev. Stat. 1989, ch. 96½, par. 6309.) The District does not focus on the Village’s title to the land in order to extricate itself from an unsatisfactory bargain. We find the facts of Mills inapplicable here where the District is merely exercising a statutory power.

The District’s standing to challenge the conveyance of land to the Village is supported by the record. The 20-foot strip of land was donated to the Village by the Partnership after the District notified both the Village and the Partnership of its intent to acquire the Cashmore property. In fact, the District had offered to purchase the Cashmore property at the full amount of its appraisal prior to the conveyance. Since the District had given notice of its intent and was already attempting to negotiate the purchase of the property, as required by the eminent domain statute (see Ill. Rev. Stat. 1989, ch. 110, par. 7—102; Department of Transportation v. Walker (1980), 80 Ill. App. 3d 1039, 1040), we think the District’s interest in the strip of land which was conveyed to the Village was sufficient to support its standing to challenge that conveyance.

Moving on to the court’s finding regarding the purpose of the conveyance, the Owners insist that the land was conveyed to protect the Village’s land use decision regarding the Cashmore property and to insure provision of sanitary sewer services to Village residents. While we acknowledge the importance of these worthwhile Village goals, the record before us leaves no doubt that the 20-foot strip was conveyed to the Village for the immediate and specific purpose of blocking any attempt by the District to condemn the Cashmore property. In a letter written by the attorney for the Owners, and admitted into evidence, it is stated:

“The intent of the conveyances is to create an area of discon-tiguity between the Cashmore property and existing or proposed publicly owned parks, forest preserves or conservation areas. The conveyance of the strip of the bed of the river creates an area of discontiguity between the Cashmore property and a tract owned by the McHenry County Conservation District ***.”

At trial, in his opening statement, the attorney for the Owners said:

“Now, judge, we’re not here to tell you that the owners deeded the 20 foot strips to the village along the middle-through the middle of the Fox River, to make it a trail in the event the Fox River dried up. We’re here to tell you that the purpose for that deeded 20 foot strip is to protect the municipal boundary from being invaded by the Forest Preserve in the event they somehow sought to achieve contiguity ***.”

Finally, the mayor of the Village testified to essentially the same reason for the Village’s acceptance of the 20-foot strips. We conclude that the conveyance of the strips of land constituted a deliberate maneuver intended to bar the condemnation subsequently pursued by the District.

As correctly pointed out by the District, the Village, which is a non-home-rule municipality, may acquire and hold title to real property only for a legitimate corporate purpose. (Ill. Rev. Stat. 1989, ch. 24, par. 2—2—12; O’Fallon Development Co. v. City of O'Fallon (1976), 43 Ill. App. 3d 348, 352.) As a general rule, when land is acquired by a municipality, the land itself is put to use. Here, we can think of no way in which a 20-foot-wide strip of river bottom could serve a corporate purpose in the usual sense. It is true that it can simply act as a permanent divider between the Cashmore property and Lyons Prairie and, thus, frustrate the District’s objectives. This goal, however, is repugnant to the clear intent of the Act to allow a forest preserve district to acquire property when the statutory conditions are met. The statutory authorization for the Village to acquire and hold real estate for a proper corporate purpose may not be twisted into authority for creating an artificial barrier to the fulfillment of the purpose of another statute. We perceive the conveyance as a legal gimmick to do just that and, therefore, agree with the District that the 20-foot strip of land was not acquired by the Village for a valid public purpose.

Finally, the Owners attack the trial court’s reliance on the condition of the conveyance by which the Village agreed to reconvey the strip to the Partnership upon request. The Owners posit that this covenant did not affect the validity of the deed. We note that the trial court first found that under the terms of the conveyance the Village had acquired only a deed of ownership. In a separate, subsequent finding the court went on to state that the conveyances “under these circumstances” and for the purpose of destroying contiguity “[are] a sham, fundamentally unfair and against public policy, and cannot be used to prevent the exercise of the District’s right of eminent domain.” When viewed in context, the limitation on the conveyance appears to have been one of a number of considerations examined by the court. The judge evidently lumped that consideration together with the other factors before him and concluded that the conveyance should not be recognized for purposes of determining whether the property the District wished to condemn was contiguous to an existing park or forest preserve as required by the Act. We find that the trial court made a correct decision.

It is not disputed that a forest preserve district may not acquire property located in a municipality absent municipal consent, except under specified circumstances. However, it is clear from the statute that, when those circumstances are present, the forest preserve district’s power to acquire is to prevail over the desires of the municipality, and the acquisition may proceed without municipal consent. At the time the District notified the Partnership of its intent to acquire the Cashmore property, that property was located contiguous to Lyons Prairie which, as we have seen, was an existing park or forest preserve. Thus, the Cashmore property fell within circumstances which excepted it from the requirement of municipal consent.

After the District gave notice of intent to acquire and initiated negotiations with the Partnership, the land was donated to the Village. The donation was made to destroy contiguity and, thus, take the District’s proposed condemnation out of the statutory exception and subject it to the requirement of municipal consent — consent the Village refused to give. Moreover, the deed used to accomplish the donation was subject to what we perceive to be, at the very least, a questionable requirement for reconveyance at the Partnership’s request.

In our view the tactic employed by the Partnership and Village is directly opposed to the public policy embodied in the Act. Based on the circumstances existing when the District first attempted to acquire the land, that policy favored the District’s right to condemn without Village consent. The Owners attempted to alter those circumstances. In this regard we note the provision in the Act that “no municipality shall annex any land for the purpose of defeating a District acquisition once the District has given notice of intent to acquire a specified parcel of land.” (Ill. Rev. Stat. 1989, ch. 96½, par. 6309.) Similarly, we do not think a municipality should be permitted to take action which renders a property noncontiguous to other property for the purpose of defeating a forest preserve district acquisition once the district has given notice of intent to acquire a specific parcel. The action taken by the Owners here, while not in violation of the letter of the law, certainly is not in keeping with the spirit of the law.

In summary, the acquisition of the 20-foot strip by the Village was not made for an appropriate public purpose, was questionable as to its terms, and was distinctly contrary to public policy as set forth in the Act. We agree with the trial court that the conveyance was a sham which cannot be used to prevent the exercise of the District’s power of eminent domain and conclude that the deed conveying the land was invalid and void at the outset. Consequently, the 20-foot strip remains part of the Cashmore property, and the Cashmore property is contiguous to Lyons Prairie.

The trial court resolved, and the parties argue, other issues which arise from the assumption that the conveyance of the 20-foot strip was valid. Inasmuch as we have decided it was not valid, we need not address those further issues.

For all of the reasons set forth above, the order of the circuit court of Lake County granting judgment in favor of the Village and the Partnership in case No. 90 — CH—534 and dismissing the District’s complaint in case No. 90 — ED—36 is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DUNN and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN POTTS, Defendant-Appellant.
    Second District
    No. 2—90—0526
    Opinion filed February 10, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, Daniel D. Yuhas, of State Appellate Defender's Office, of Springfield, and Joseph Michael Williams, of St. Charles, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Steven Potts, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2)) in a jury trial. The trial court subsequently denied defendant’s post-trial motion and sentenced him to nine years’ imprisonment. This timely appeal followed.

Defendant raises six issues: (1) whether defendant was proved guilty beyond a reasonable doubt; (2) whether defendant was denied a fair trial due to juror misconduct; (3) whether the trial court correctly refused to tender defendant’s battery instructions; (4) whether the prosecutor’s closing argument denied defendant a fair trial; (5) whether the trial court properly allowed Dawn Davis to testify as to complainant’s spontaneous declaration; and (6) whether defendant’s sentence is excessive.

First, we address defendant’s argument that he was not proved guilty beyond a reasonable doubt. The following facts are relevant to this issue.

Complainant testified for the State that on February 25, 1986, she was 16 years old. At that time, she had known defendant “on and off” for over a year. They had had sex on two or three occasions. On the date in question, complainant picked up defendant at his Aurora home and drove to the home of David Williams in North Aurora. Williams was a friend of defendant. At various times in the evening, complainant asked defendant to give her the car keys so that she could leave. Defendant refused to do so. During the course of the evening, complainant and defendant drank an unspecified amount of alcoholic beverages.

At one point, complainant thought of going to a neighbor’s house and calling the police for assistance in getting the car keys. Eventually, complainant went outside, and defendant followed her. He told her to get back into the house. During this exchange, defendant pushed complainant against the car but did not hit her. She was afraid of defendant and, consequently, returned to the house.

About 20 minutes later, complainant drove defendant back to his house. Upon arriving, defendant took the keys from the ignition, so complainant had to follow him to the house. Defendant’s half brother, Chuck Feltman, let them into the house. Complainant followed defendant into the dining room, where defendant ignored her efforts to get the keys back. Complainant did not recall whether defendant forced her downstairs to his bedroom. Defendant told complainant that she had embarrassed him at the party and that he was going to “fuck her up.” Defendant hit her face several times. She was also bruised on her arm and scratched “all over [her] body.” Defendant told her to take off her clothing, which she did out of fear.

Defendant attempted vaginal sex with complainant, who was having her period. He next attempted anal intercourse unsuccessfully. Throughout this, complainant was crying hysterically. Finally, defendant forced complainant to engage in oral sex; he then ejaculated on her chest and clothing. Defendant allowed complainant to dress and leave his house.

Complainant drove away in a hysterical condition. She went to the home of a friend who was not home. She called another friend, Dawn Davis. Davis later took her to the police department.

On cross-examination, complainant did not recall if she had anything to drink at the party. She admitted getting into a fight with a Hispanic male named “Rick.” Complainant kicked Rick in the groin. She did not remember if Rick struck her. After this altercation, defendant angrily took her out of the house and pushed her up against the car. Further, when she was at defendant’s house, complainant did not ask Chuck Feltman’s help in retrieving the car keys. Complainant stated that defendant forced her “a little to go down into his bedroom.” She denied ever having been in defendant’s basement room before the alleged occurrence. Complainant further denied that her mother forced her into pressing charges against defendant.

On redirect examination, complainant did not recall what happened in her fight with Rick but did remember that he damaged some of her jewelry.

Dawn Davis testified that she was a friend of complainant. On February 25, 1986, at about 11 p.m., she received a call from complainant, who was crying hysterically. Complainant said on the phone that she had been raped. Davis told her to come to her house. Complainant arrived about 15 minutes later; she was still in a hysterical condition. Davis noticed two bruises on complainant’s face and a scratch on her chest. Davis said that she had been beaten up and raped by defendant at his house. Complainant told Davis that defendant’s brother and another man were at defendant’s house during the assault but did not help her. Davis accompanied complainant to the police station, where she later began to calm down.

Officer Robin Trettenero testified that at approximately 1:30 a.m. on February 26, 1986, he met with complainant at the Aurora police department. Complainant’s face was very swollen. She had contusions near her left and right eyes and scratches on her neck and chest. Complainant was emotionally distraught and crying. Officer Tret-tenero took complainant to Mercy Center Hospital for a standard rape assessment.

There was stipulated testimony from Officers Lawrence and Davis as to their taking complainant’s clothing and a rape kit to the Joliet crime lab in a sealed condition. There was also stipulated testimony of crime lab scientist, Judy Welsh, who would testify she received these items and detected seminal material on complainant’s clothing, but no seminal material was found in vaginal, anal or oral swabs taken from the rape kit. Due to the small amount of seminal material, there was no ability to compare it to a known source. Nor could she determine the time or date when the seminal material was deposited on the clothes.

Dr. Alberts and Linda Selvidge, Mercy Center Hospital emergency room physician and nurse, respectively, would testify that they saw complainant at Mercy Center Hospital emergency room on February 26, 1986. Both saw numerous bruises on her face and scratches on her chest and back. They could not estimate when or how the bruises occurred. Complainant told them that she had been raped.

John Potts, defendant’s brother, testified for defendant. He received a call from complainant in the summer of 1986. Pretending to be defendant, Potts asked her why she had said that he had raped her. Complainant said that her mother forced her to do so because of defendant’s beating. On cross-examination, Potts conceded that he did not promptly tell police about this call. Nor did he produce telephone records which could verify such a telephone call took place. On rebuttal, complainant denied ever making such a call.

Charles Feltman, a half brother of defendant, testified that he was sleeping on the living room floor of defendant’s house on the night of the subject incident. At between 1 a.m. and 3 a.m., he let defendant and complainant in the house’s front door. He had been asleep about an hour and a half. Complainant and defendant went into the dining room and had a discussion sitting at the table. He heard nothing unusual. After they went to the basement, Feltman heard no screams coming from the basement. He saw complainant leave the house; he did not hear defendant applying any force against complainant or threatening same. On cross-examination, Feltman explained that he was asleep when complainant left the house and was then awakened by a cold draft created when she opened the front door. Feltman saw her walking down the front steps as he closed the front door.

David Williams and Marsha Graves each testified that they attended the party at Williams’ house on February 25, 1986. With some minor inconsistencies, their testimonies were essentially the same. At some point, complainant got into an argument with the aforementioned Rick. A fight ensued in which complainant grabbed Rick’s throat and ripped off his gold chain. Further, complainant kicked Rick in the groin. Defendant pulled complainant away from Rick and took her outside. The witnesses saw the two fighting each other, with both throwing punches. Complainant fell to the ground, and Williams pulled defendant away from her. Williams saw that defendant’s face and neck were scratched.

Charlyn Wilson was also at the party. Her testimony was essentially the same as that of Williams and Graves, with the exception that she did not see defendant throwing punches at complainant when they had gone outside. Wilson saw defendant fend off the complainant who, at one point, fell against the car, hitting her head.

Defendant testified that he had known complainant since late 1984. From that time, he had seen complainant two or three times a week and at school as well. They had engaged in oral and vaginal sex on at least 20 occasions while dating, and he had had sex with complainant in his home a week prior to the subject incident.

On February 25, 1986, complainant drove to defendant’s house in her car and picked him up to go to David Williams’ residence. Defendant was 17 years old at the time. About six people were there. At some point during this evening, complainant and the above-mentioned Rick started quarreling in the kitchen. Complainant grabbed for Rick’s neck, and defendant tried to pull her off. Complainant kicked Rick in the groin. Complainant and defendant went outside, talking about complainant’s behavior toward Rick. Complainant said she was not comfortable at the party and wanted to leave. They returned about 10 minutes later. Complainant and defendant then drank more and ate some pizza. After going outside again, they began arguing about Rick. This time they started fighting. Defendant pushed the complainant, her back and head striking her car. Defendant then hit the right side of complainant’s head with a closed fist. He hit her two or three times. They were wrestling with each other when Williams broke up the fight.

Complainant, defendant and Rick left Williams’ residence in complainant’s car. After dropping off Rick, they went to defendant’s home. Defendant took complainant’s car keys because she was a bit intoxicated and the road conditions were not good. Complainant agreed to come into his house. Chuck Feltman let them in, and they talked for a while about what had happened earlier in the evening. After about 10 minutes, they went down to defendant’s basement bedroom. Defendant did not force complainant to go there. She had been in his bedroom three or four times before.

As they were sitting on his bed, defendant apologized for his behavior towards her at the party. They began to kiss. Defendant asked complainant about having sexual intercourse. She replied that she was having her period. He then asked her for oral sex, and she complied. They were in his bedroom for 30 or 40 minutes. Defendant then walked complainant to her car, and he again apologized for what had occurred earlier that night.

Five photographs taken of complainant’s face on the day following the incident were entered into evidence. These pictures are of varying quality and indicate the following: a bruise under her right eye, a reddish blotch on her left cheek and several scratches on her chest.

The parties initially argue as to the proper standard to be applied in reviewing the trial court’s judgment. Defendant argues that in an aggravated criminal sexual assault case, the complainant’s testimony must be clear and convincing or properly corroborated. (People v. Laughlin (1987), 163 Ill. App. 3d 115.) The State responds that the proper standard is now that an appellate court must view the evidence in a light most favorable to the prosecution, and, after doing so, if proof of the essential element of a crime supports a conviction, the court must affirm. (People v. Schott (1991), 145 Ill. 2d 188.) The State has the better of the argument, and we will review this cause in light of the standard set out in Schott.

Defendant points to the inconsistencies of complainant’s testimony and other elements of the record, while the State maintains that no inconsistencies are sufficient to overturn the jury’s verdict.

We admit to finding this record fraught with contradictions. On the one hand, complainant testifies that she was fearful of defendant in his bedroom and, thus, was forced to submit to a nonconsensual sexual act. On the other hand, the evidence of the witnesses, including complainant, depicts her as a person ready and willing to fight physically with those who cross her. Furthermore, the issue of when and where complainant received the scratches and bruises is obscured by the record. Defendant claims that he hit complainant two to three times in the face during a fight in Williams’ backyard. Witnesses from the party corroborated his story. Also, testimony of all witnesses, including complainant, indicates that she fought with a Hispanic male named Rick in Williams’ kitchen. Complainant admitted grabbing for Rick’s throat and kicking him in the groin. Several witnesses stated they saw Rick grab for her jewelry, and complainant testified that Rick damaged some of her jewelry.

Moreover, the pictures of complainant taken the day following the alleged incident do not portray a badly beaten person. Most of the pictures are of poor quality. The clearest photograph shows that the area around complainant’s right eye is bruised. Another picture of poorer quality indicates a possible bruise on complainant’s left cheek. Two scratches are also visible on the upper portion of her chest. These photographs do not support complainant’s assertions that she was badly beaten.

Furthermore, complainant’s testimony and her actions do not necessarily jibe. Complainant testified that at one point during the party she had an argument with defendant during which he pushed her against her car. Complainant stated that she was then scared of defendant. She nevertheless drove him home and proceeded into his house, despite her alleged fear of him, rather than finding some way to get away from defendant.

Our considerable doubts notwithstanding, under the above-cited standard by which we are to review such cases, we will not overturn the jury’s determination of defendant’s guilt.

Next, defendant argues that the trial court erred in denying his post-trial motion. Said motion argued that defendant was denied a fair trial because juror Mary Johnston failed to disclose relevant information during voir dire, namely, that her daughter had been murdered by the latter’s boyfriend and that she knew at least two of the people on defendant’s prospective witness list, Marsha Graves and Lola Brummel.

During Johnston’s voir dire, the following exchange took place:

“Q. Have you or a member of your family or close friend or relative ever been charged with or been the victim of a crime?

A. Someone broke into my house.”

She made no other response. Further, she denied knowing any of the prospective witnesses.

At the hearing on defendant’s post-trial motion, Marsha Graves testified that she had been a witness for the defense in the February 1990 trial. Graves recognized juror Johnston while she was testifying. Graves had known Johnston for about eight years. Lola Brummel, defendant’s mother, testified that she was on defendant’s witness list. Brummel testified that she had known Johnston for about 12 years and that they had attended barbecues and other “little get togeth-ers.”

Mary Johnston also testified at the post-trial motion hearing. She knew that Marsha Graves was the daughter of Judy Graves, one of her co-workers. She further stated that “I know [Marsha Graves] when I see her.” But Johnston stated that she did not realize that she knew Graves until a day after the trial concluded, when Judy Graves told Johnston that Graves’ daughter, Marsha, testified at trial. Johnston denied telling any of the other jurors that she knew Marsha Graves by sight.

Johnston also stated that she had been acquainted with Lola Brummel for about 10 years. She did not know that defendant was Brummel’s son. Johnston admitted telling other jurors that she knew who Lola Brummel was, but she denied that this disclosure affected the jury’s decision. Further, Johnston testified that her daughter had been murdered by the daughter’s fiance in 1981. She stated that this fact did not in any way affect her decision in this case.

In ruling on this issue, the trial court, relying on People v. Hunt (1983), 112 Ill. App. 3d 138, stated:

“It seems to me that she [Johnston] should have responded that she had a kid who was a victim of *** some type of murder. I don’t know whether it was a sexual offense or not. I assume it is. But based on the Hunt case, I can’t do anything about it. There was not any false testifying that I know of.”

While the accused’s right to trial by an impartial jury is basic, a juror’s failure to reveal potentially prejudicial information or giving false testimony during voir dire does not automatically entitle a defendant to a new trial. (People v. Hunt, 112 Ill. App. 3d at 141.) The standard to be applied is actual prejudice to defendant. 112 Ill. App. 3d at 141.

In Hunt, the defendant was a pimp who was charged with the murder of a 15-year-old prostitute. During the voir dire examination, the trial court asked the following question of a group of prospective jurors: “Do any of you have close relatives, a husband or wife, or a sister or a brother, or son or daughter that [sic] has been the victim of a crime? If so, please stand.” Eugene Johnson did not stand in response to this question. Johnson responded in the affirmative to the question: “Have any of you *** ever been a victim of a crime?” Johnson stated to the court that he had been the victim of an armed robbery and that no one had been charged for that crime.

During defendant’s motion for a new trial, Johnson testified that when he was seven years old, his sister had been beaten to death by a pimp. Johnson further testified that, despite what had happened to his sister, he was nonetheless able to render a fair and impartial verdict and that he had not discussed the matter with the jury. The Hunt court concluded that the trial judge’s determination as to the impartiality of the juror was not against the manifest weight of the evidence.

We find that the appeal at bar is factually distinguishable from Hunt. Here, juror Mary Johnston proved to be far less believable than the juror Eugene Johnson in Hunt. The trial court asked her directly whether a family member had been the victim of a crime. She did not state that her daughter had been murdered. It is highly improbable that she would forget such a tragic occurrence.

Furthermore, the trial court asked Johnston whether she knew anyone on the list of potential witnesses, which included Marsha Graves and Lola Brummel. She replied in the negative. At the post-trial hearing, Johnston testified that she would know Marsha Graves when she saw her. Yet she then testified that she did not recognize Graves during the latter’s trial testimony. Johnston further stated that during the jury’s deliberation on the case she still had not recognized Graves. This confusing testimony adds to our concerns about Johnston’s veracity.

Finally, Johnston’s testimony regarding Lola Brummel, defendant’s mother, seems improbable. At the post-trial hearing, she testified that she had known Brummel for about 10 years but she did not know her last name, thus explaining her failure to alert the trial court. Taken alone, this testimony would not have much impact, but, when added to the above-cited inconsistencies, it serves to increase our considerable doubts concerning the reliability of her testimony.

Given the discrepancies in Johnston’s testimony, we find that the trial court erred in denying defendant’s motion for a new trial. Said discrepancies rise to the level of actual prejudice to defendant’s right to a trial by a fair and impartial jury. Accordingly, we find that the trial court erred in failing to grant defendant’s motion for a new trial.

We next address the issues raised on appeal which may surface again upon retrial of defendant.

Defendant argues that the trial court improperly refused to tender defendant’s battery instruction to the jury. We find this court’s previous decision in People v. Leonard (1988), 171 Ill. App. 3d 380, to be dispositive of this issue. In Leonard, we found that in cases where defendant is charged with aggravated criminal sexual assault and not charged with battery, defendant is not entitled to a battery instruction. Moreover, the Leonard court found that, even if the battery can be isolated from the sexual assault, battery was not charged by the State; there is no support for a battery instruction. Furthermore, the Leonard court rejected defendant’s alternative argument that battery is a lesser included offense of aggravated criminal sexual assault. Accordingly, the Leonard defendant was not entitled to a lesser included offense instruction covering the crime of battery. (See also People v. Casey (1989), 179 Ill. App. 3d 737.) Based upon Leonard, we find the trial court properly refused to tender defendant’s battery instruction.

Defendant’s next argument is that the prosecutor’s closing argument denied defendant a fair trial. At trial, defense counsel failed to object to allegedly improper statements, and this argument was not raised in defendant’s post-trial motion. Generally, such a failure constitutes a waiver of the claimed error on appeal. (People v. Enoch (1988), 122 Ill. 2d 176; People v. McCall (1989), 190 Ill. App. 3d 483.) Nevertheless, we shall address this issue. Prior to jury trial in this cause, defendant made a motion in limine to bar any reference by the State to flight by the defendant. The trial court granted the motion, stating that “[i]t cannot be raised by the State. It may be inquired into on cross examination depending upon what Mr. Potts testifies to.”

The issue was not raised by defendant nor inquired into on cross-examination by the prosecution. However, in that portion of the prosecution’s closing argument which dealt with the alleged phone call between complainant and Jeff Potts, reference (emphasized below) was made to the fact defendant had not been apprehended for the subject offense. Specifically, the prosecution stated:

“And the ludicrous account of the supposed phone call from [complainant] which she thought was Steve Potts coming from that very, very nonbiased source, the defendant’s brother, Jeff Potts, who has this great information. Yet he doesn’t call the police. He doesn’t call the phone company to get records. He doesn’t do anything. Just four years later shows up in court and says this is what happened.
I suppose if one of you called one of your friends and said, hi, this is Ronald Reagan, that friend would say they talked to Ronald Reagan. You can’t take his word for that and you know you don’t. Because if it had happened he would have told somebody. He knew his brother was wanted at the time, but no, he comes into court and gives you this fairy tale when [complainant] tells you she never called him.” (Emphasis added.)

We find the reference to defendant’s being wanted at the time of the phone call implied that he had taken flight from prosecution. As such, it was an improper breach of the motion in limine granted by the trial court, and the prosecution is directed to make no such statements upon retrial.

Further, defendant maintains that during its closing argument the prosecution misstated the law applicable to aggravated criminal sexual assault, based upon bodily harm (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2)). Specifically, the prosecution argued, “So bodily harm existed here and all that was relevant is did it exist at the time of the sexual assault.” While not conceding that the prosecutor misstated the law, the State concedes that the language used by the prosecutor was imprecise. We agree. Upon retrial, any reference to the relevant statute should leave no doubt that for defendant to be convicted of aggravated criminal sexual assault it must be proved that the bodily harm was contemporaneous to the criminal sexual assault.

Next, defendant argues that the trial court improperly permitted portions of Dawn Davis’ testimony. At an in camera conference regarding the admissibility of Davis’ testimony, defense counsel did not object to allowing Davis to testify to the fact that complainant told her that she had been raped. Defense counsel objected to Davis’ testimony as it related to other statements made by complainant, namely, details of the party, the drive to defendant’s home and what allegedly occurred at defendant’s home. The trial court ruled that the disputed testimony was admissible as a spontaneous utterance.

Defendant argued before the trial court and argues before this court that the subject testimony is impermissible hearsay, not a spontaneous utterance. To constitute a spontaneous declaration, an utterance exception to the rule against hearsay, three factors must be present: (1) an occurrence which is sufficiently startling to produce a spontaneous unreflecting statement; (2) the absence of time to fabricate; and (3) the statement’s relationship must relate to the circumstances of the occurrence. (People v. Russell (1988), 177 Ill. App. 3d 40, 46.) The trial court has considerable discretion in determining whether a statement is admissible as a spontaneous declaration, and its decision will not be reversed absent an abuse of discretion. People v. Washington (1984), 127 Ill. App. 3d 365.

Defendant argues that the record demonstrates complainant had ample time to fabricate the statements she made to Davis. Complainant testified that after she left defendant’s house she drove for an indeterminate time on snow-covered roads. She was crying and hysterical. She first went to the home of a friend, who was not home. She then drove to a public telephone and phoned Davis, who testified that about 15 minutes elapsed between the phone call and complainant’s arrival at Davis’ home. Davis stated that complainant was hysterical upon arriving at her home.

Under this evidence, we find the absence of an opportunity to fabricate. The testimony indicates that complainant was emotionally distraught from the time she left defendant’s house to her arrival at Davis’ residence. This is sufficient evidence to support the trial court’s decision to permit Davis’ testimony under the spontaneous declaration exception.

We do not need to address the issues raised by defendant relating to his sentence.

For reasons stated above, we reverse the trial court’s judgment, and this cause of action is remanded for a new trial.

Reversed and remanded with directions.

McLaren and INGLIS, JJ., concur.


author: JUSTICE DUNN JUSTICE NICKELS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHRISTOPHER D. LAMB, Defendant-Appellee.
    Second District
    No. 2—89—1184
    Opinion filed February 6, 1992.
    NICKELS, J., dissenting.

      Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Christopher Lamb, was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—3(a)). Defendant contended in a post-trial motion that a portion of his grand jury testimony was erroneously admitted into evidence because he was not admonished during the grand jury proceedings about certain constitutional rights. The trial court vacated defendant’s conviction and granted him a new trial. The State now appeals and asserts that the trial court erred by ruling that defendant’s grand jury testimony should have been suppressed. We reverse and remand.

Defendant was arrested in June 1984 and charged by information with taking part in a residential burglary that had occurred a few weeks earlier. After his arrest defendant gave a statement to Sergeant Richard Wilkinson of the Ogle County sheriff’s department. Defendant was subsequently subpoenaed to testify before a grand jury investigating the burglary.

On June 28, 1984, defendant appeared before the grand jury. He was accompanied by counsel. The State’s Attorney asked defendant if his attorney had advised him of his rights in testifying before the grand jury. Defendant stated that his attorney had done so. After asking several questions about events that had transpired on the day of the burglary, the State’s Attorney asked if defendant had anything else to say. Defendant then read a prepared statement which said that he was at the scene of the burglary on the day it took place with other alleged perpetrators but had not participated in the offense. Defendant’s attorney had a copy of the statement introduced into evidence. The grand jury indicted defendant for the residential burglary.

On January 7, 1985, defendant was tried in absentia. The trial judge suppressed defendant’s statement to Sergeant Wilkinson but allowed the State to introduce into evidence portions of defendant’s grand jury testimony concerning the statement to Wilkinson. The jury found defendant guilty, and he was subsequently sentenced to a 15-year term of imprisonment.

Defendant argued in a prior appeal to this court that his grand jury testimony about the statement to Wilkinson should have been suppressed. This court agreed and granted defendant a new trial. (See People v. Lamb (1988), 176 Ill. App. 3d 203, 208.) The new trial, a bench trial, commenced on August 8,1989.

The State sought to introduce defendant’s prepared statement to the grand jury into evidence at the new trial. The trial judge stated that the testimony would only be admitted if the State could show as part of the foundation that defendant had been advised of his Miranda rights. The prosecuting attorney then read the portion of the grand jury testimony in which defendant acknowledged that his attorney had advised him of his rights. Defendant’s attorney at trial argued that this was not sufficient because it could not be determined from the transcript what rights defendant had been advised about by his attorney from the grand jury proceeding. The trial judge rejected this argument and allowed defendant’s prepared statement to the grand jury to be admitted into evidence.

The trial judge found defendant guilty. In his post-trial motion defendant contended that his aforementioned grand jury testimony should have been suppressed because he was not advised during the grand jury proceedings of certain rights as allegedly required under section 112 — 4(b) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b)). At the hearing on this motion, the State presented an affidavit from George Fischer, the attorney who represented defendant during the grand jury hearing. The affidavit states that Fischer twice advised defendant prior to his grand jury testimony that defendant had the right to refuse to testify in order to avoid self-incrimination and that anything he said to the grand jury could be used against him in court.

The trial judge granted the motion and ruled that defendant was entitled to a new trial. The trial judge ruled that defendant’s grand jury testimony should have been suppressed because a defendant who testifies before a grand jury is entitled to assert his or her fifth amendment right not to testify at trial. The State now appeals.

The reasoning employed by the trial court in granting defendant’s motion was not correct. A defendant who waives his or her privilege against self-incrimination may reassert the privilege and refuse to testify at a subsequent proceeding concerning the same matter. (People v. Ramirez (1983), 98 Ill. 2d 439, 448-49.) Defendant’s reassertion of the privilege does not render defendant’s testimony in the former proceeding inadmissible in the later proceeding, however. (Ramirez, 98 Ill. 2d at 465.) We must therefore determine whether the trial court’s ruling should be sustained upon a different basis.

The relevant portion of the statute at issue here, section 112 — 4(b) of the Code, states as follows:

“Any person subpoenaed who is already charged with an offense or against whom the State’s Attorney is seeking a Bill of Indictment shall have the right to be accompanied by counsel who shall advise him of his rights during the proceedings but may not participate in any other way. Before any testimony is given by such a person, he shall be informed that he has the right to refuse to answer any question that will tend to incriminate him, that anything he says may be used against him in a court of law, that he has the right to be accompanied and advised of his rights by counsel, and that he will have counsel appointed for him if he cannot afford one.” (Ill. Rev. Stat. 1989, ch. 38, par. 112-4(b).)

The official heading of section 112 — 4 is “Duties of Grand Jury and State’s Attorney.”

The State contends that the above requirements of section 112 — 4(b) were met in this case because defendant’s attorney twice advised him prior to his grand jury testimony that he had a right to refuse to testify and that anything he said to the grand jury could be used against him in court. Relying largely upon the official heading of the statute, defendant argues that the State’s Attorney must provide the necessary admonishments, and a review of the grand jury hearing transcript reveals that the State’s Attorney failed to do so.

The official heading or title of a statute can provide guidance in interpreting the provision if its meaning is unclear. (People v. Malone (1979), 71 Ill. App. 3d 231, 232.) We do not believe section 112 — 4(b) is unclear, however, with respect to the issue in question. Section 112— 4(b) merely states that a so-called target witness must be informed of certain rights before he or she gives any testimony at a grand jury proceeding. The provision does not specify who must inform the witness of those rights.

By contrast, in other portions of section 112 — 4 the legislature clearly specified that the State’s Attorney was required to perform certain duties. For example, section 112 — 4(d) states that if 12 grand jurors agree that the evidence presented constitutes probable cause that an individual committed a crime, “the State’s Attorney shall prepare a Bill of Indictment charging that person with such offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(d).) Additionally a portion of section 112 — 4(b) says that if the State’s Attorney is seeking an indictment against an individual previously charged by complaint or information and there was a finding of no probable cause at the preliminary hearing, “[t]he State’s Attorney shall file an affidavit as part of the Grand Jury record indicating whether the jurors were advised of such previous findings of no probable cause and of their rights based upon such previous finding.” Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b).

Therefore, in section 112 — 4, if the legislature intended to designate certain tasks as duties which were to be performed by the State’s Attorney it explicitly did so. As we have seen, however, section 112 — 4(b) only states that a target witness must be informed of the rights specified therein; it does not say that the State’s Attorney must perform this task. We thus conclude that the affidavit presented by the State which showed that George Fischer twice advised defendant prior to his grand jury testimony that defendant had a right to refuse to testify and that his grand jury testimony could be used against him at trial was sufficient to establish compliance with section 112 — 4(b). The fact that Fischer was present at the grand jury hearing shows that defendant was also aware of his right to have counsel present during his grand jury testimony.

We are not persuaded to the contrary by defendant’s contention that the purpose of the statutory requirement at issue is to ensure that defendants receive admonishments concerning their Miranda rights and that the court recognized in Miranda v. Arizona (1966), 384 U.S. 436, 469, 16 L. Ed. 2d 694, 720, 86 S. Ct. 1602, 1625, that such admonishments have greater impact when given by law enforcement officials. The court also recognized in Miranda that the presence of counsel during custodial interrogation is an adequate measure to protect the accused’s right to avoid self-incrimination. (See Miranda, 384 U.S. at 466, 16 L. Ed. 2d at 719, 86 S. Ct. at 1623-24.) Section 112 — 4(b) not only permits a target witness to have counsel present during his or her grand jury testimony, but also further provides that counsel will be appointed if the witness cannot afford one. The legislature apparently felt that while some admonishment requirement was necessary to assure that target witnesses were aware of their Miranda rights, there was no need to require that the admonishments be given by the State’s Attorney in order to lessen the coercive atmosphere of the proceeding when the provision concerning the presence and appointment of counsel was adequate to achieve that end.

The dissenting justice contends that section 112 — 4(b) admonishments must be given during the grand jury proceeding itself rendering the admonishments given by Fischer to defendant inadequate. The dissent relies upon a sentence from section 112 — 4(b) which states that a target witness who is testifying before a grand jury is entitled to be accompanied by counsel “who shall advise him of his rights during the proceedings but may not participate in any other way.” (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b).) The dissent interprets this sentence as requiring the attorney of a target witness to admonish the witness during the grand jury proceeding about the rights mentioned specifically in the next sentence of the provision including the right to avoid self-incrimination. We disagree with this interpretation.

The sentence relied upon in the dissent does not mention any specific rights concerning which the attorney for the target witness must advise the witness. This is in complete contrast to the next sentence in section 112 — 4(b) which, as we have seen, mentions the rights the witness must be informed about, including the right to avoid self-incrimination and the right to the presence of counsel. The fact that the legislature did not specify any rights in the initial sentence indicates that its intention was to provide that the role of the attorney for the target witness is to give the witness advice during his or her testimony whenever the witness has a question about any of his or her rights. The sentence does not require any specific admonishment as the next sentence does.

Accordingly, we conclude with regard to the issue presented here that section 112 — 4(b) of the Code only requires that a target witness be informed of the rights specified therein, including the right to refuse to answer incriminating questions prior to presenting any testimony. Because the record in this case reveals that defendant was informed of those rights prior to presenting his grand jury testimony, the circuit court erred by granting defendant’s post-trial motion, vacating his conviction, and ordering a new trial. Accordingly, we reverse the order of the circuit court of Ogle County granting the above relief, reinstate defendant’s conviction and remand the cause for further proceedings.

Reversed and remanded.

GEIGER, J., concurs.

JUSTICE NICKELS,

dissenting:

I respectfully dissent from the majority’s interpretation of section 112 — 4(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b)). Initially, I disagree with the majority’s conclusion that section 112 — 4(b) is not unclear. While the section directs that a target witness be informed of certain rights, it is not clear who has the duty to so admonish the witness or when such admonishments should be made.

The majority finds that the State’s Attorney is not required to apprise a target witness of the rights specified in the last sentence of section 112 — 4(b). The majority does not address who should provide such warnings since the target witness herein, defendant, had an attorney who advised him prior to his testimony. I am not fully persuaded that the State’s Attorney is not charged with the duty to inform a target witness of his or her rights. Although the United States Supreme Court has not conclusively determined that warnings are constitutionally required when a witness testifies before a grand jury (United States v. Mandujano (1976), 425 U.S. 564, 48 L. Ed. 2d 212, 96 S. Ct. 1768; United States v. Washington (1977), 431 U.S. 181, 52 L. Ed. 2d 238, 97 S. Ct. 1814), Illinois has long provided for such warnings (see, e.g., People v. Cochran (1924), 313 Ill. 508). The Illinois Supreme Court has recently overruled Boone v. State (1894), 148 Ill. 440, in People v. J.H. (1990), 136 Ill. 2d 1, based upon the remedy provided in that case (indictment was quashed in Boone because the prosecutor failed to advise the defendant of his constitutional rights before the grand jury), finding instead that suppression of the grand jury testimony would be a proper remedy. I do not read J.H. as providing that there was no violation of the defendant’s rights in Boone which would go unremedied today but only that the remedy in Boone is no longer applicable. I note that the target witness in J.H. had received warnings by the prosecutor. (See generally People v. Green (1988), 179 Ill. App. 3d 1; People v. Wurster (1980), 83 Ill. App. 3d 399.) From a practical standpoint, it would behoove a State’s Attorney to admonish a target witness rather than leave to chance that such rights will be given, as is the result under the majority’s opinion. It would also remove any problems due to the attorney-client privilege should it be necessary to determine whether a witness’ attorney advised the witness of his or her rights off the record. No issue regarding privilege was raised in the instant case.

In any event, the majority finds that the instant defendant’s attorney advised defendant of his rights. Under section 112 — 4(b), a target witness has the right to be accompanied by an attorney “who shall advise [the witness] of his rights during the proceedings.” (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b).) It is evident from the legislative history that this provision was intended to allow the witness’ attorney to be physically present in the grand jury room during the proceedings. The other justices find, however, that a target witness’ attorney is not required to provide the specific admonishments found in the last sentence of section 112 — 4(b) in advising the witness of his or her “rights.” They interpret the first sentence as merely providing that the role of the attorney for the target witness is to give the witness advice during his or her testimony whenever the witness has a question about his or her rights.

I do not disagree that a target witness’ attorney would be present to advise the witness of his or her rights during the proceedings. The attorney’s role in this respect is broader than merely advising the witness of the specific rights enumerated in the last sentence of section 112 — 4(b). However, such “rights” would obviously include the right to refuse to answer questions which may tend to incriminate the witness and that anything the witness says could be used against the witness in a court of law. I find that the last sentence specifies what those “rights” must include, at a minimum, when a witness’ attorney “shall advise him of his rights during the proceedings.” (Ill. Rev. Stat. 1989, ch. 38, par. 112—4(b).) Furthermore, the phrase “during the proceedings” indicates the time that such admonishments must be given. I base this interpretation on the fact that the purpose of the first sentence in section 112 — 4(b) is to ensure that the witness’ attorney is physically present during the proceedings to advise the witness of his or her rights. Also, prior case law in Illinois shows that such admonishments should be given at or during the proceedings. The close proximity of the warnings to a target witness’ testimony and the solemnity of the grand jury setting seem likely to increase their effectiveness as well. See Washington, 431 U.S. at 191, 52 L. Ed. 2d at 247, 97 S. Ct. at 1821.

While the majority’s opinion states that a target witness’ attorney is not required to give any specific admonishments under section 112 — 4(b), the effect of its decision has placed that duty on the witness’ attorney. It acknowledges that certain rights must be given to the target witness, but that there is no duty on the State’s Attorney to so advise the witness. By the majority’s reasoning, the duty to admonish the witness herein fell on the witness’ attorney in the absence of some other individual advising the witness. Thus, the “rights” the witness’ attorney was required to give the witness included the specific rights listed in section 112 — 4(b). The majority’s decision has placed the duty to provide specific admonishments on the witness’ attorney despite their conclusion that there is no such duty on the witness’ attorney.

Since the witness’ attorney gave the instant defendant certain admonishments prior to the proceedings, the majority concludes that the statute was met. I disagree. The rights must be given “during the proceedings.” The defendant’s attorney’s affidavit does not provide that the rights were given during the grand jury proceedings but “just prior to” the grand jury testimony. I believe requiring such advice during the proceedings largely removes any questions concerning how long “prior to” the testimony is too long to make the warnings effective. Therefore, I do not believe the statute has been complied with, and I would reverse.