author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRAVIS WHITFIELD, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0116
    Opinion filed May 3, 1991.
    Rehearing denied June 14, 1991.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

On November 6, 1989, Travis Whitfield was convicted of possession of a stolen motor vehicle and possession of burglary tools. On appeal he contends: (1) the trial court abused its discretion in permitting the State to reopen its case in chief in order to cure a deficiency in its evidence which defendant pointed out in his motion for a directed finding of not guilty, and (2) defendant’s waiver of jury after the State rested its case was not knowing and intelligent where, after the waiver, the trial court permitted the State to reopen its case and introduce highly damaging evidence against defendant which resulted in the court’s finding of guilty.

Defendant was arrested October 23, 1988, and charged with possession of a stolen vehicle and possession of burglary tools. Following a bench trial, he was found guilty of both charges and sentenced to 36 months’ probation. The following information was adduced at trial.

Illinois State Police Trooper Edward Gonzalez testified that he tried to pull over a black Nissan on Interstate 94 because the car was driving under the speed limit and the license plates on the car were registered to a different vehicle. Gonzalez testified that he pursued the driver and apprehended him after the driver fled the vehicle and a short chase followed. Gonzalez identified defendant as the driver and testified that after defendant was in custody, he recovered a black bag with wire cutters, screwdrivers, vise grips and rug cutter which he saw the defendant discard.

Gonzalez testified that the car was still running when he returned to the car. He testified that there was no key in the ignition but there was a hole in the steering column. Gonzalez testified that he radioed in to the station the vehicle identification number on the car and was told the registered owner, King Nissan in Niles, had reported it stolen.

Illinois State Police Trooper Anthony Richard testified that he inventoried a 1987 Nissan and black bag at the scene where defendant was arrested, noting damage done to the vehicle and items left inside the car. He testified that he found a tube of touch-up paint, two four-way wrenches, five pairs of wire cutters, two pairs of vice grips, a jack, a rug cutter and a screwdriver. He said he found no key at the scene, inside or outside the car.

On cross-examination Richard testified that if he had observed a hole in the steering column, he would have included that in his report. He acknowledged that his report made no mention of a hole in the steering column. On redirect examination Richard testified that he never looked for a hole in the steering column.

King Nissan general manager Graham Grimes testified that the defendant worked for King Nissan for about a year in 1986. He testified that a 1987 Nissan with a vehicle identification number of JN1CZ14S7HX153047 was stolen from his lot in June 1987. Grimes testified also that a 1985 black Nissan was stolen from King Nissan in July 1986 and that the defendant had been in that car when it was recovered.

On cross-examination Grimes acknowledged that the defendant had been working for the car dealership in 1986 at the time Grimes reported the 1985 Nissan as stolen. On redirect Grimes acknowledged that car porters such as defendant had access to the dealership’s key-making machine and that the 1985 Nissan was found with the key inside. On re-cross-examination he admitted that defendant would not have had access to keys or the key-making machine at anytime when the 1987 Nissan was on the dealership’s lot.

Illinois State Police Trooper Alex R. Szram testified as an expert witness in the field of auto theft investigation. He identified four ways to start a Nissan without the key, including using a screwdriver in the steering column. On cross-examination Szram testified that he had never seen the car involved in this investigation. On redirect examination he testified that Trooper Gonzalez phoned him the morning of defendant’s arrest to discuss ways a Nissan could be started without the key. He testified that a vice grip could be used to enter the car and wire cutters used to splice wires together to start a car. On re-cross-examination he testified that Gonzalez told him two other cars were stolen from King Nissan the same week and later recovered by police.

Chicago police officer Stephen Shoup testified that in December 1986 while investigating allegations that the defendant possessed a stolen 1985 black Nissan from King Nissan in Niles, he found the Nissan near defendant’s home with license plates on it registered to defendant’s 1987 Toyota. Shoup testified that he saw defendant exit his home, enter the car with a key and drive away. Shoup testified that he followed defendant and that defendant pulled over and stepped out of the car. Shoup testified that he asked defendant if they could speak together but defendant said “No, that’s OK” and ran away. Shoup testified that defendant was later arrested for possession of a stolen motor vehicle.

The parties stipulated that Grimes will testify “that the vehicle in question, specifically a 1987 black Nissan Datson [sic], vehicle identification number JN1CZ145HX153047 [sic], was owned by that company, Nissan Datson [sic] after it was reported stolen. He would testify that their insurance carrier was Traveler’s Insurance Company, and he would testify that on the 23rd of October at the time that the vehicle was recovered after the defendant, Travis Whitfield, was placed under arrest, the title had been transferred on that vehicle to Traveler’s Insurance.” The parties further stipulated that Traveler’s never gave defendant permission to use the vehicle and that the incident occurred in Chicago, Hlinois. No written stipulation was entered into evidence.

The State rested its case, and the court granted defendant’s waiver of his jury right over the State’s objection. The defense moved for a directed verdict on the ground that the State failed to prove beyond a reasonable doubt that the car defendant was apprehended with was the car stolen from King Nissan. The defense tendered a copy of People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795, to the court and argued that in that case the court directed a verdict for defendant after the State failed to establish that the car driven by the defendant was also the car reported stolen by the dealership involved.

The State argued that it had sufficiently connected the stolen car to the car found in defendant’s possession because Gonzalez testified that he ran the vehicle identification number on the car at the scene and found it registered to the Nissan dealership. In response the defense argued that the facts in Hope were very similar and the court still found the identification insufficient.

The court recalled and dismissed the jury and then took the directed verdict motion under advisement. When court reconvened, the court noted that the court reporter was not available to determine exactly what the parties had stipulated to with regard to the vehicle identification number of the car recovered. The State was allowed to reopen its case over defense objections, and Gonzalez returned to testify as to the actual vehicle identification number on the car recovered from defendant.

After Trooper Gonzalez testified to match the vehicle number on the 1987 Nissan found with defendant to the 1987 Nissan stolen from the King Nissan, the defense moved for a directed verdict on the charge of possession of burglary tools. The defense argued that the State had failed to show defendant had the intent to break into a vehicle or commit a felony or theft. The defense argued that no evidence or testimony was brought forth that would prove the tools were used to break into or start the car. The State responded that Gonzalez had testified he found a hole in the steering column and the car running despite the lack of a key.

The trial court denied motions for a directed verdict on both the possession of burglary tools and the possession of a stolen motor vehicle. The defense rested without presenting evidence and waived its closing argument. The State made closing argument, and the court then ruled, finding defendant guilty of both charges. Defendant was sentenced to 36 months’ probation on the two charges to be served concurrently with the first six months served in the Cook County Department of Corrections.

On appeal defendant contends that the State, in its case in chief, failed to prove him guilty beyond a reasonable doubt of both the possession of a stolen motor vehicle charge and possession of burglary tools.

First, defendant contends that the properly admitted evidence, i.e., the evidence admitted before the court permitted the State to reopen its case, failed to establish that the car defendant possessed was stolen. Defendant argues that the State’s evidence failed to give any information that would uniquely identify the car he possessed as the one stolen from King Nissan. Instead the arresting officer stated only that he observed the vehicle identification number, called the police station and learned the car was owned by King Nissan and had been reported stolen. Defendant contends that the stipulation entered into at trial was done to obviate the necessity of testimony of an insurance company representative, establishing only that the car title was transferred to the insurance company after it was stolen from King Nissan. Defendant concludes that testimony from an insurance agent or the general manager of the Nissan dealership would be hearsay because he would have no personal knowledge about the vehicle defendant was driving.

Defendant cites People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795, where Hope contended he was not proven guilty beyond a reasonable doubt on theft and possession of stolen motor vehicle charges because the State failed to prove the car he was driving at the time of his arrest was the same car reported stolen by Nortown Oldsmobile dealership. At Hope’s trial the arresting officer testified he had his partner run a check on the plates on defendant’s car and found they did not match. A check of the vehicle identification number showed the car was stolen and the officer testified that he was later “informed that the vehicle was owned by Nortown Oldsmobile.” An assistant general manager from the dealership testified that he checked the vehicle identification number on the car which was returned by police and discovered that it was indeed a car stolen from the dealership.

In reversing Hope’s conviction, the appellate court held that the State failed to prove defendant’s guilt beyond a reasonable doubt because it failed to establish that the automobile missing from Nortown was in fact the car found to be in defendant’s possession. The court noted that the State failed to admit evidence of the car’s vehicle identification number though it was available. It found the State had presented no testimony of the chain of custody of the car to indicate the car defendant was arrested in was the car later returned to the dealership. It found the State’s evidence lacked the vital link necessary to conclusively establish the automobile driven by defendant at the time of his arrest was owned by Nortown. Hope, 69 Ill. App. 3d at 380-81, 387 N.E.2d at 799.

Defendant cites People v. Stone (1979), 75 Ill. App. 3d 571, 394 N.E.2d 810, which reversed defendant’s conviction for theft over $150 because the State’s evidence failed to include evidence that the car defendant was found with had the same vehicle identification number as the car reported stolen by the complainant. The court found this evidence insufficient despite testimony by the owner of the car of the year, make, model and color of the stolen car and testimony by the officer of the color of the vehicle he recovered from defendant. Stone, 75 Ill. App. 3d 571, 394 N.E.2d 810.

Defendant cites People v. Fernandez (1990), 204 Ill. App. 3d 105, 109, 561 N.E.2d 1131, where the appellate court reversed a conviction for possession of a stolen automobile after the State “inadvertently omitted” proof that the car set forth in the indictment was the one in defendant’s possession. The court in Fernandez stated that the State need not prove specific ownership of the vehicle, but only that someone other than defendant had a superior interest in the property, whether established by fact or circumstantial evidence reasonably inferred. Fernandez, 204 Ill. App. 3d at 109.

The State contends that the evidence proved defendant guilty beyond a reasonable doubt because trial testimony showed defendant was in unauthorized possession of a car which the arresting officer identified as a stolen car and which defendant did not have permission to possess. The State argues that defendant’s criminal intent was shown through the officer’s testimony of defendant’s attempt to flee, his previous possession of a stolen car from the same dealership, testimony of the hole in the steering column and the fact that the vehicle was found running without a key.

Section 4—103 of the Illinois Vehicle Code provides that: “It is a violation of this Chapter for: (1) A person not entitled to the possession of a vehicle to *** possess *** it, knowing it to have been stolen or converted ***. It may be inferred *** that a person exercising exclusive unexplained possession over a stolen or converted vehicle *** has knowledge that such vehicle *** is stolen or converted ***.” Ill. Rev. Stat. 1987, ch. 95½, par. 4-103(a)(1).

Sufficient proof of intent to possess a stolen motor vehicle can be found in witness testimony that defendant drove a stolen vehicle down an alley, crashed it and then fled. (People v. Gentry (1989), 192 Ill. App. 3d 774, 778, 549 N.E.2d 609.) Defendant’s knowledge may be established by proof of circumstances that would cause a reasonable person to believe property had been stolen. (People v. Williams (1976), 44 Ill. App. 3d 143, 147, 358 N.E.2d 58.) Where possession has been shown, an inference of defendant’s knowledge can be drawn from the surrounding facts and circumstances. (People v. Johnson (1978), 64 Ill. App. 3d 1018, 1021, 382 N.E.2d 85, 87.) Evidence of flight may be considered to infer the defendant’s knowledge that the vehicle was stolen. People v. Tucker (1989), 186 Ill. App. 3d 683, 694, 542 N.E.2d 804, 812.

The State distinguishes Hope, noting that the court in Hope required proof of the vehicle identification number only because the State’s evidence did not include proof of ownership by the victim, chain of custody testimony or testimony to confirm if and when the victim’s car was returned by police. The State contends that here testimony by the car dealership general manager and the stipulation entered into adequately provided a chain of custody and proof of ownership.

The State distinguishes Stone, noting that in that case the officer testified that he ran a check on the license plate of the car involved and found that it was registered to someone named “Sasek” but the testimony did not specify “which Sasek, and from where.” The State argues that here, the true owner of the stolen automobile was identified both through the stipulation and testimony.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) A reviewing court must view the evidence in the light most favorable to the prosecution. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.) To prove defendant guilty of possession of a stolen motor vehicle, the State must prove beyond a reasonable doubt that defendant possessed a motor vehicle, that the vehicle was stolen and that defendant knew the vehicle was stolen. People v. Tucker (1989), 186 Ill. App. 3d 683, 694-95, 542 N.E.2d 804.

We believe the State’s evidence proved defendant guilty beyond a reasonable doubt. Gonzalez testified that he tried to stop defendant’s car when he observed that the license plate did not match the car but that defendant fled first in the car and then on foot. Evidence of defendant’s intent can also be inferred from his flight from police, his prior possession of a stolen motor vehicle and by his possession of the stolen motor vehicle with which Gonzalez found him. Evidence that the vehicle was stolen came from Gonzalez’ testimony that his check of the car’s vehicle identification number disclosed the car was stolen from King Nissan. The general manager of the dealership testified that the car was owned by and stolen from the dealership.

This case is distinguishable from Fernandez, Hope, and Stone. In Fernandez, the parties stipulated that if the owner of the car were to testify, she would testify that the car was stolen and that she had not given defendant permission to drive her 1984 red Mazda RX7 with a specific vehicle identification number. The only testimony presented in the Fernandez trial came from a woman who phoned police after she discovered that the person she was renting a space to in her garage was dismantling a red Mazda there. Fernandez, 204 Ill. App. 3d at 109.

In Hope, the State’s evidence failed to establish whether Nortown Oldsmobile recovered its stolen automobile before or after defendant’s arrest. The State’s evidence failed to establish a chain of custody for the car found in defendant’s possession which would prove it belonged to and was returned to Nortown. (Hope, 69 Ill. App. 3d at 380, 387 N.E.2d at 799.) In Stone, the police officer who arrested defendant testified only to the color of the car defendant was in possession of when arrested and to the name of the person who held the car’s title. Stone, 75 Ill. App. 3d at 573-74, 394 N.E.2d at 812.

In our case, Gonzalez testified that he checked the vehicle identification number on the car defendant was found in and discovered it was reported stolen by King Nissan. Gonzalez identified the make and model of the car and testified that the license plates on the car did not match the car defendant possessed. In addition, Gonzalez’ testimony provided chain of custody evidence from which a proper inference of identification could be drawn that defendant was in possession of a stolen motor vehicle. The stipulation entered into by the parties indicated the day the car was returned to King Nissan was subsequent to the day defendant was arrested. We find the evidence established defendant’s guilt beyond a reasonable doubt.

Defendant also contends that the trial court erred when it failed to direct a verdict in his favor on the charge of possession of burglary tools. Defendant contends that there was no evidence that the common tools were altered, adapted or used for criminal purposes. Defendant argues that the State presented no evidence of defendant’s intent to commit a felony or theft with the tools as required by State statute. Ill. Rev. Stat. 1987, ch. 38, par. 19—2(a).

The defendant’s intent is the controlling factor in a possession of burglary tools charge when the tools in question could be used for innocent purposes as well as illegal purposes. (People v. Spencer (1973), 10 Ill. App. 3d 229, 233, 294 N.E.2d 17, 19.) Defendant cites People v. Bibbs (1978), 60 Ill. App. 3d 878, 881, 377 N.E.2d 559, where the court reversed a conviction for possession of burglary tools when the defendant’s employment justified use of the tools and the State presented insufficient evidence of felonious intent.

The State contends that the evidence established defendant’s felonious intent through testimony about defendant’s previous possession of a stolen automobile, his flight from police and the fact that the defendant threw the bag of tools away while running. Defendant offered no defense at trial.

Defendant’s intent must be determined in light of the testimony before the trier of fact. Defendant presented no evidence of his intent; however, the State’s evidence included Gonzalez’ testimony of defendant’s flight from the scene with the bag of tools in hand and the hole found in the steering column of the car, which was found running without a key. The State’s expert witness Shoup testified that the tools defendant had with him could have been used to open and then start the stolen car without a key.

We find the State has met its burden of proof on the possession of the burglary tools charge.

Defendant also argues on appeal that the trial court committed a gross abuse of discretion when it permitted the State to reopen its case and recall Gonzalez. Defendant reasons that he had no duty to assist the State by alerting it to possible gaps in its evidence. Defendant argues that no competent defense attorney would ever move for a directed finding if he knew the State would then be permitted to present further evidence to cure the precise deficiency pointed out in the motion.

Defendant cites to State statute which provides: “When, at the close of the State’s evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.” Ill. Rev. Stat. 1989, ch. 38, par. 115—4(k).

Defendant cites People v. Robbins (1974), 21 Ill. App. 3d 317, 320, 315 N.E.2d 198, 201, which found no error when the State was permitted to reopen its case to admit exhibits into evidence. The court stated that admitting exhibits was a formal matter and such a move could not have taken the defendant by surprise. (Robbins, 21 Ill. App. 3d at 320; see People v. Cross (1968), 40 Ill. 2d 85, 237 N.E.2d 437 (trial court properly permitted State to reopen its case to admit evidence of building ownership at a burglary trial).) Defendant cites to People v. Woolsey (1990), 139 Ill. 2d 157, where the supreme court found the trial court erred in entering nolle prosequi on the State’s motion before it ruled on defendant’s motion to dismiss for speedy trial grounds.

Defendant cites State v. Allen (1987), 205 Conn. 370, 533 A.2d 559, which held that the trial court abused its discretion when it permitted the State to reopen its case against defendant, who was charged with carrying a weapon in a motor vehicle. Evidence introduced after the State was allowed to reopen its case established the length of the barrel of the gun, which was required to establish that defendant was carrying a “weapon.” The court held: “when the State has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal, it is an abuse of the trial court’s discretion to permit a reopening of the case to supply the missing evidence.” State v. Allen, 205 Conn. at 385, 533 A.2d at 566.

Defendant also cites State v. Collier (La. Ct. App. 1983), 438 So. 2d 652, which held the trial court erred when it permitted the State to reopen its case against defendant who was charged with letting his dog "run at large” in a dedicated or recorded subdivision with 20 units in a V2-mile radius. The court held that the State failed to present any evidence that defendant in fact lived in a dedicated or recorded subdivision.

Defendant cites California and New York cases with similar holdings. People v. Belton (1979), 23 Cal. 3d 516, 591 P.2d 485, 153 Cal. Rptr. 195 (trial court erred in permitting the State to reopen its case to permit required corroborating evidence of accomplice testimony); People v. Creazzo (1963), 39 Misc. 2d 1069, 242 N.Y.S.2d 530 (trial court erred in permitting State to reopen its case when it failed to state on the record “good reason” for reopening as required by statute).

The State counters that trial court did not err in reopening the State’s case where the additional evidence merely verified and repeated evidence already offered. The State argues that the court can permit the State to reopen its case where it has inadvertently omitted certain mere formalities of proof. The State argues that the initial testimony showed adequate proof of ownership based on Gonzalez’ testimony that the license plate did not match the car and that the vehicle identification number on the car matched the number on a stolen car, Grimes’ testimony that the dealership reported a car stolen with the same vehicle identification number and the stipulation entered into which specified the date of recovery of the automobile as the day of defendant’s arrest.

The State cites People v. Faulkner (1978), 64 Ill. App. 3d 453, 457, 381 N.E.2d 321, 324, where the court held that there is no per se rule prohibiting a court from permitting the State to reopen its case once the defendant has moved for a directed verdict. The State cites People v. Price (1972), 8 Ill. App. 3d 158, 160, 289 N.E.2d 280, 282, where the trial court properly permitted the State to reopen its case in chief after the defense argued on a motion for a directed verdict that State evidence failed to establish the three elements necessary for an obscenity conviction.

The State cites People v. Rose (1970), 124 Ill. App. 2d 447, 452, 259 N.E.2d 393, 396, where the trial court properly permitted the State to reopen its rebuttal evidence to introduce authenticated copies of the defendant’s three prior convictions. The State cites In re J.B. (1983), 120 Ill. App. 3d 155, 158, 457 N.E.2d 983, 985, where the trial court properly permitted the State to reopen its case after it pointed out that the State had failed to prove the victim had died and that the respondent was the one who confessed to the crime. On appeal the court stated that a court, in its discretion, may allow the State to reopen its case not only for the purpose of proving formalities but also to establish the very facts necessary for conviction. In re J.B., 120 Ill. App. 3d at 160.

The State cites People v. Davis (1969), 118 Ill. App. 2d 93, 98, 254 N.E.2d 610, 612, where the court found no error when a trial court permitted the State to reopen its case and establish as a “formality” the ownership of a grocery partnership from which defendant allegedly stole items and money. The State cites People v. Baer (1974), 19 Ill. App. 3d 346, 349, 311 N.E.2d 418, 421, where the court found no abuse when the trial court permitted the State to reopen its case to introduce evidence that Jewel Companies, Inc., owned the grocery where defendant had allegedly committed a theft. The court held that defendant could not have been surprised or unfairly prejudiced by reopening the case and introducing this evidence. Baer, 19 Ill. App. 3d at 349.

Here, Gonzalez’ testimony reciting the vehicle identification number was a mere formality in the presentation of the State’s case. During the State’s case in chief the jury heard evidence from Grimes of the vehicle identification number of the car stolen from King Nissan. The stipulation entered into at the end of the State’s case included the vehicle identification number of the “subject car.” We find that the trial court acted within its discretion in permitting the State to reopen its case.

Finally, the defendant contends that his jury waiver was not knowing and intelligent since it was tendered before the State was permitted to reopen its case. Defendant argues that his jury waiver was not knowingly given because it was premised on the State having rested its case. He argues that his waiver was based on the quantum of proof before the court at that time and that he could not have foreseen, in response to his motion for a directed finding, that the court would allow the State to reopen its case.

We have found that the evidence before the court prior to the motion and the reopening for additional proof was sufficient to support a finding of defendant’s guilt on both charges. For that reason the defendant’s contention with respect to whether or not his jury waiver was a knowing and intelligent relinquishment of a right does not alter our result here.

Defendant cites People v. Norris (1978), 62 Ill. App. 3d 228, 379 N.E.2d 80, where, after opening statements, the trial court permitted the State to add five additional witnesses to its witness list, including previous unknown witnesses to the crime. (Norris, 62 Ill. App. 3d at 229.) The appellate court found that defendant’s jury waiver was not knowing and intelligent because at the time defendant waived his right to a jury trial, he was unaware of the most damaging evidence against him: eyewitnesses to the shooting. Norris, 62 Ill. App. 3d at 232.

The State distinguishes Norris on its facts, saying that in that case, new witnesses were brought forth who could testify they saw defendant pull a gun and shoot the victim. The State argues that here the State presented no new evidence, witnesses or issues but only testimony which corroborated testimony and evidence already admitted. The State argues that defendant unambiguously chose a bench trial after being fully advised of his rights.

The State argues that the defendant cannot waive a jury based on a contention that he was unaware a State witness intended to testify about particular facts. (People v. Guest (1986), 115 Ill. 2d 72, 89-90, 503 N.E.2d 255, 262-63.) The right to a jury trial is a constitutional right of the highest importance. (People v. Pruitte (1984), 125 Ill. App. 3d 580, 586, 466 N.E.2d 341, 346.) The trial court bears the responsibility for ensuring that any waiver of this right is expressly and knowingly made and is not perfunctorily discharged. People v. Sebag (1982), 110 Ill. App. 3d 821, 828, 443 N.E.2d 25, 30.

A valid jury waiver must be “knowingly and understandingly made” and based on the facts of each case. (People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197.) A waiver will not be found invalid where defendant unambiguously chooses a bench trial unless some prejudice is alleged and proven. People v. Crespo (1983), 118 Ill. App. 3d 815, 819-20, 455 N.E.2d 854, 858.

Here defense strategy was to place the issue before the trial court and seek a ruling as a matter of law. Defendant had no guarantee of success in such a ruling and reliance on erroneous trial strategy does not invalidate a knowing and intelligent jury waiver. People v. Houston (1986), 151 Ill. App. 3d 102, 114, 502 N.E.2d 1111, 1119.

Here the additional evidence provided by Gonzalez’ testimony cannot be compared to the eyewitnesses to a murder who were added as new witnesses in Norris. The information Gonzalez testified to after the State’s case was reopened was also included in his police report which was used to refresh his recollection in the State’s case in chief. We find the defendant knowingly and intelligently waived his right to a jury trial.

For the foregoing reasons, we affirm the defendant’s conviction for possession of a stolen motor vehicle and possession of burglary tools.

Judgment affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCARIANO

license: Public Domain

text:
    CENTRAL IMPORTS, INC., Plaintiff-Appellee, v. DORTMUNDER ACTIEN-BRAUEREI AG, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—3050
    Opinion filed May 7, 1991.
    Rehearing denied June 18, 1991.
    Stephen C. Carlson and John A. Heller, both of Sidley & Austin, of Chicago, for appellant.
    Eugene E. Gozdecki and Howard A. Voeks, both of Gozdecki & Zido, of Chicago, for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff, Central Imports, a beer distributor, brought an action for wrongful termination of its distributorship, basing it on common law contract theories and the Illinois Beer Industry Fair Dealing Act (Ill. Rev. Stat. 1987, ch. 43, par. 301 et seq.) (the Act). After plaintiff was granted a preliminary injunction enjoining defendant Dortmunder Actien-Brauerei AG (DAB or brewery) from terminating plaintiff as a distributor, DAB took an interlocutory appeal.

DAB is a German brewery which manufactures DAB brand beer. Beginning in the early 1950’s, it distributed beer in Illinois and surrounding States through a succession of wholesale companies owned and operated by Joseph Gies. In 1978, Gies, along with Arnold Holán, formed a wholesale company called Charter Imports, Inc., which continued to market the DAB brand in a nine-State Midwest region.

In 1985, the Heileman Brewery succeeded Charter Imports as distributor of Hacker Pschorr beer, leaving Charter Imports with DAB beer as its only major brand. Gies and Holán thereupon decided that it was no longer economically feasible for them to remain in the market because, in their opinion, a company with only one import brand would find it very difficult to survive.

In the summer of 1986, Gies and Holán approached another beer distributor, then known as Central Chicago Distributing Company and now known as Central Distributing, Inc., regarding the possible sale to it of Charter Imports. An agreement was reached to sell certain assets of Charter Imports to Central Distributing, including the right to distribute DAB beer, but the transferring of the right was conditioned upon the approval of the brewery.

Gies and Holán sent a letter to the brewery on September 5, 1986, advising it that Charter Imports would cease doing business on October 30, 1986. On September 14, 1986, as a result of that letter, a meeting took place between Gies and Holán, three representatives of Central Distributing, and representatives of the brewery. DAB and Central Distributing determined, at this time, to establish a separate company, Central Imports, Inc., to handle the DAB brand. The brewery thereafter sent a letter dated October 22, 1986, to Central Imports, appointing it as the new distributor for DAB beer for a trial period running from November 1, 1986, through December 31, 1987, with a provision for future negotiation of a “final agreement.”

Although the contemplated “final agreement” never materialized, on November 18, 1988, DAB shipped $63,210.75 worth of beer to Central Imports under invoices which stated that payment was due on January 18, 1989. On January 6, 1989, Tarlock Chhokar, who did Central Imports’ bookkeeping, prepared a check made payable to DAB for the full amount due and had it signed by Bruce Ruzgis, the president of Central Imports and one of its owners, and Kenneth Hartmann, who was the president of Central Chicago Distributing and one of the principals of Central Imports. However, before it was mailed, the check was voided on the instruction of Donna Spagnolla, Central Imports’ controller, because, as she testified, “Central Imports was waiting for some receivable money to come in.”

On January 24, 1989, Frederick Hess, Jr., the president of DAB, called Chhokar and told him that the brewery was “upset” that it had not received payment when it was due. Hess Jr. continued to call Chhokar through the remainder of January and into February of 1989 regarding payment, but without any favorable result. Chhokar acknowledged that in February 1989, “one of the Fred Hesses” called him and stated that “payments were overdue, and they want their money.”

On March 8, 1989, Hess Jr. called Chhokar again regarding payment and was told that the check had been made out and that he would look into its progress. Hess Jr. made a contemporaneous note of this phone call on a “faxed” communication he had received from the brewery. On March 13, 1989, Hess Jr. again called Chhokar regarding payment and Chhokar informed him that the check was in the mail, but the check was never received.

On March 17, 1989, Hartmann called Frederick Hess III, the secretary-treasurer of DAB, and told him that DAB should stop dealing with Chhokar regarding the past-due invoices and to deal instead with Timothy Mirkiewicz, the general manager of Central Imports. Hess III testified that when, on March 20, 1989, he called Mirkiewicz and told him that $63,210.76 was “well overdue,” Mirkewicz stated that he “didn’t have a good knowledge of the complete situation” and asked if he could call “back the next day to respond to that.” The next day, Mirkewicz called Hess III and, after telling him that he understood that the payment was “long overdue,” informed him that Central Imports’ controller had suggested paying the bill in four equal installments over the following four weeks. Hess III testified that he informed Mirkiewicz during this conversation that stretching out the payments in the manner suggested was “totally unacceptable” and that he demanded full payment. Mirkiewicz, however, testified that Hess III stated in response to the suggestion of an extended payment schedule, “If that’s what you have to do, that’s what you have to do. Any payment is better than no payment.” Mirkiewicz also stated that he took part in several other conversations with the Hesses regarding the $63,210.75.

On March 23, 1989, Hess III again called Mirkiewicz and was told that not even a partial payment had been sent but that such a payment would be mailed the next day. Although Central Imports alleges in its brief that it sent its first payment of slightly more than $15,000 by check on March 27, 1989, the record shows that when Hess called Mirkiewicz on March .28 and told him that no check had been received, Mirkiewicz stated that no check had been sent out, but that Central Imports would send it immediately.

Mirkiewicz testified that in these conversations, Hess III merely “inquired” about the status of the payment for the outstanding invoice. Ruzgis stated that he had had several conversations with the Hesses during the period from January 1989 through April 2, 1989, but that in none of those conversations did the Hesses ever indicate that Central Imports was late in its payments, nor did they ever request payment from him.

On March 28, 1989, the brewery informed Hess Jr. that it had decided to terminate Central Imports as a distributor and sent him a draft of a proposed letter addressed to Central Imports informing it of its decision. Hess Jr. returned the letter to the brewery and advised it that it should use March 28, 1989, as the date of the letter, since that was the date it had made the decision to terminate. Hess Jr. also recommended that the brewery send the letter to Central Imports by way of regular mail, the slowest route, in order to give Hess Jr. and his son additional time in which to try to collect payment. Hess Jr. had surmised that Central Imports would refuse to pay once it learned that it had been terminated.

On April 3, 1989, Hess III made a trip to Central Imports’ office in Chicago to try to collect the $63,210.75. Mirkiewicz met Hess III at the airport and gave him a check for $15,800 and informed him that another partial payment had been sent to his office. Hess III called his office, learned that a check for $15,800 had arrived on March 31, 1989, and later met with Ruzgis and Hartmann at Central Imports’ office. Ruzgis testified that he and Hartmann learned for the first time at this meeting that payment was past due, and arranged for Hess III to receive two more checks, which paid the balance of the account in full. The next day, Hartmann replaced these two checks, which were post-dated April 10 and April 17, 1989, with a single check dated April 4, 1989. On April 7, 1989, Central Imports received the termination letter from the brewery.

Central Imports filed its complaint on May 4, 1989, naming the brewery, the chairman of its board of directors, DAB Importers, which coordinates the importation of DAB beer into the United States, and one of Central Imports’ subdistributors as defendants. On May 9, 1989, a temporary restraining order (TRO) was issued on plaintiff’s motion, and was extended several times. A hearing on plaintiff’s motion for preliminary injunction against DAB Importers began on June 29, 1989, and although that motion was denied, the TRO was kept in place against the brewery.

In August 1989, plaintiff filed its first amended complaint, which named the brewery, the chairman of its board of directors, DAB Importers and the Hesses as defendants. Beginning on October 5, the circuit court conducted a hearing on Central Imports’ request for a preliminary injunction against the brewery, and on October 20, 1989, the court entered an order enjoining it from terminating plaintiff as its exclusive importer and master distributor for a nine-State Midwest region and from providing DAB products to anyone other than plaintiff for distribution in the Midwest region. The brewery filed this interlocutory appeal on October 31, 1989.

The brewery appeals the trial court’s order granting a preliminary injunction, alleging that there was good cause to terminate Central Imports as a distributor. It is well established in Illinois that a preliminary injunction is an extraordinary remedy which should be granted only with the utmost care. (Hannan v. Watt (1986), 147 Ill. App. 3d 456, 461.) Classically, the decision to grant or deny preliminary injunctive relief lies within the sound discretion of the trial court, and a reviewing court’s role is therefore limited to determining only whether the trial court abused its discretion. (Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1005; Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 672.) In reviewing the discretion exercised by the trial court, an appellate court may decide only whether the petitioner has established the following four elements: (1) the existence of a protectible right; (2) irreparable harm should the court not issue the injunction; (3) the lack of an adequate remedy at law; and (4) a likelihood of success on the merits. Hopf v. Topcorp, Inc. (1988), 170 Ill. App. 3d 85, 90.

For the purposes of our review, it is necessary to determine only whether Central Imports was likely to succeed on the merits of its case, and this would depend upon whether the Beer Industry Fair Dealing Act (Act) (Ill. Rev. Stat. 1987, ch. 43, par. 303(3)(A)) provides adequate grounds for its termination of Central Imports’ distributorship. Section 3 provides in pertinent part:

“§3. Termination and Notice of Cancellation.
(1) Except as provided in subsection (3) of this Section, and except as agreed upon by the parties, no brewer or beer wholesaler may cancel, fail to renew, or otherwise terminate an agreement unless the brewer or wholesaler furnishes prior notification to the affected party in accordance with subsection (2).
(2) The notification required *** shall be in writing and sent to the affected party by certified mail not less than 60 days before the date on which the agreement will be can-celled, not renewed, or otherwise terminated. Such notification shall contain (a) a statement of intention to cancel, failure to renew, or otherwise terminate an agreement, (b) a statement of reasons therefore, and (c) the date on which such action shall take effect.
(3) A brewer may cancel, fail to renew, or otherwise terminate an agreement without furnishing any prior notification for any of the following reasons:
(A) Wholesaler’s failure to pay any account when due and upon demand by the brewer for such payment, in accordance with agreed payment terms.” (Ill. Rev. Stat. 1987, ch. 43, par. 303.)

The trial judge found that “there were several demands” made on Central Imports and “that the payment performance was poor and late payments have been made.” The judge went on to conclude, however, that although the brewery had made several demands, the Act provides that proper notice of the manufacturer’s intention to terminate the distributor must be in writing and that the manufacturer must provide the distributor with “a reasonable opportunity to pay” after receiving such notice. Applying this interpretation of the statute, the court determined that the brewery did not make a demand for payment until it sent the termination letter to Central Imports, which did not have an opportunity to respond to the letter before being terminated.

DAB complains that the trial court’s interpretation that the statute requires written notice is inconsistent with the plain meaning of the statute and that it made several demands, beginning on January 24, 1989, when Hess Jr. called Chhokar and requested payment. Accordingly, it argues that Central Imports’ April 4, 1989, payment was not payment upon demand. Central Imports responds that the legislative intent of the statute recognizes commercial reasonableness and good faith, that the requirement of written notice of termination is reasonable, and that it would be unfair to terminate a distributorship in which $2 million of purchases had been made because the distributor is late in making a $63,000 payment. This overlooks, however, the trial judge’s specific findings that several demands for payment had been made on Central Imports, that its “payment performance was poor,” and that it had been guilty of late payments.

Neither Central Imports nor the trial court has pointed to anything in the legislative history of the Act indicating that the legislature considered it unfair for a brewery to terminate a distributor when it ignores oral requests for payment for over two months. On the contrary, as noted above, the statute clearly and unmistakably provides that a brewer or wholesaler need not previously notify “the affected party” in any way of a cancellation or failure to renew an agreement in cases where the distributor fails “to pay any account when due and upon demand by the brewer for such payment, in accordance with agreed payment terms.” We conclude, therefore, that the Beer Industry Fair Dealing Act does not require written notice or any warning that termination will result from a failure to make payment on demand. Accordingly, we hold that the Act allowed the brewery to terminate Central Imports without prior notice thereof for failure to pay for the November 8, 1988, shipment when it was due and upon demand being made therefor.

Plaintiff Central Imports also contends that Chhokar was not its bookkeeper, but was Central Distributing’s bookkeeper, who also wrote checks for it, and DAB should have contacted a principal of Central Imports, instead of Chhokar. However, the evidence is undisputed that Hartmann told Hess III and Hess Jr. that they should direct all problems of payment to Chhokar. Because there is no support in the record for Central Imports’ allegations, we hold that the trial court erred in issuing a preliminary injunction against DAB. Accordingly, the judgment of the circuit court is hereby reversed.

Reversed.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE LINN

text:
    THE YALE CLUB OF CHICAGO, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (4th Division)
    No. 1—90—1893
    Opinion filed May 9, 1991.
    Rehearing denied June 19, 1991.

      Metzger & Associates, Ltd., of Chicago (Donald L. Metzger, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

In this action for administrative review, plaintiff, the Yale Club of Chicago (YCC), appeals from an adverse decision by the Illinois Department of Revenue (Department), regarding the YCC’s status as an educational or charitable organization entitled to a purchaser’s sales tax exemption under Illinois law. Ill. Rev. Stat. 1987, ch. 120, par. 441(b).

The trial court entered judgment confirming the Department’s denial of the sales tax exemption. On appeal, YCC contends that the decision of the Department is contrary to the law and the manifest weight of the evidence.

We affirm.

Background

The YCC is an Illinois not-for-profit organization incorporated to promote the welfare of Yale University (University) in Connecticut by assisting in the recruitment of Chicago-area students; raising funds for scholarships; and sponsoring programs in the Chicago area designed to foster continuing support for Yale on the part of its alumni. The organization has no capital, capital stock, or shareholders, and its control and management are vested in an uncompensated board of directors.

The articles of incorporation of the YCC include a statement that the general purposes of the organization shall be exclusively charitable and educational within the meaning of section 501(c)(3) of the Internal Revenue Code. (26 U.S.C. §501(c)(3) (1988).) The bylaws state the principles and objectives of the YCC:

“The Club is dedicated to the promotion of the welfare of Yale University, the preservation of its traditions of excellence in education and service, and the advancement of its influence and stature in the metropolitan area of Chicago, Illinois. The Club subscribes to the belief that an active and vigorous local alumni association is a primary vehicle to advance such principles.”

Philip Moriarty was the only witness to testify during the administrative hearing on the YCC’s status as an educational or charitable organization. He has been with the YCC since its incorporation in 1978, serving at different times as president, director, and chairman of the alumni schools committee. According to his testimony, the YCC’s operations fall into three categories: (1) activities of the alumni schools committee; (2) Yale-related events; and (3) fund raising for the Yale Club of Chicago Foundation.

One of the main purposes of the YCC is to interview and evaluate applicants to Yale. The alumni schools committee is set up to cover the greater Chicago area and uses 80 volunteer members, who are Yale alumni, to present information about Yale to high school students and parents at area high schools. Although Yale has a staff member from its admissions office assigned to cover Chicago, the University itself does not actively recruit or interview applicants. That function is filled by the YCC volunteers who conduct the interviews. The YCC does not make the decision whether a student will be accepted to attend Yale. While it does use guidelines prepared by the University for evaluating prospective students, the YCC does not act under the control and supervision of Yale.

Membership in the YCC is limited to Yale alumni or parents of the alumni, and current students. Members pay dues. The YCC sponsors events, such as lectures, concerts, and theatrical performances featuring Yale faculty, students, or other Yale-affiliated persons. Only YCC members are invited to these events, and they are charged a fee to cover costs of the event.

The membership dues and proceeds from the sponsored events pay for administrative expenses first. Any excess or operating profit is divided so that 20% goes to printing and postage for mailings to members. The balance goes to the Yale Club of Chicago Foundation, an organization with the sole purpose of raising funds for scholarships awarded to Chicago-area students of Yale.

On November 14, 1986, the YCC made a written request to the Department for a purchaser’s sales tax exemption. On February 2, 1987, the YCC sent additional information in support of its request. On May 8, 1987, the Department responded in writing, stating that alumni associations generally do not qualify as tax-exempt purchasers. The Department also informed the YCC that it would consider any other additional information about its activities that the YCC might regard as pertinent.

The YCC appealed from the denial of its request for tax exemption. An administrative law judge presided over an evidentiary hearing. At the conclusion of the hearing, the administrative law judge recommended the denial of the YCC’s petition, stating:

“The taxpayer offered testimony that one of the organization’s primary functions was to interview prospective students from the greater Chicago area.
After reviewing the testimony of the Taxpayer and reviewing the exhibits offered by the Taxpayer, the Administrative Law Judge is of the opinion the organization exists primarily for the benefit of its members and fails to meet the definition of exclusively charitable or educational as defined by Illinois courts.”

The Department adopted the recommendation. The YCC filed suit for administrative review in the circuit court of Cook County. That court confirmed the Department’s decision.

Opinion

The governing statute that allows certain organizations to purchase goods free of the State sales tax provides in relevant part as follows:

“A tax is imposed upon persons engaged in the business of selling tangible personal property at retail at the rate of 5% of the gross receipts from such sales of tangible personal property made in the course of such business, excluding, however, from those gross receipts *** (b) *** the proceeds of such sales to any governmental body, or to any corporation, society, association, foundation, or institution organized and operated exclusively for charitable, religious or educational purposes ***.” Ill. Rev. Stat. 1987, ch. 120, par. 441.

The burden is on the party seeking tax exemption, and all debatable questions are resolved in favor of taxation. (E.g., Board of Certified Safety Professionals of the Americas, Inc. v. Johnson (1986), 112 Ill. 2d 542, 547, 494 N.E.2d 485.) Where, as here, the relevant facts are uncontradicted, the issue is one of law and we need not consider whether the decision is contrary to the manifest weight of the evidence. (Cook County Masonic Temple Association v. Department of Revenue (1982), 104 Ill. App. 3d 658, 660, 432 N.E.2d 1240.) Therefore, the issue in the pending case is whether the YCC has established its entitlement to the exemption of subsection (b), under the law, as a corporation “organized and operated exclusively for charitable, religious or educational purposes.”

The YCC asserts that it satisfies the statutory requirement under both the educational and charitable standards. In its challenge to the Department’s findings, the YCC argues that any social benefits accruing to its members are incidental and since the evidence does not support a finding of a “primarily social purpose,” the decision should be reversed.

We do not agree that the failure of an organization to qualify for tax exemption necessarily means that it is primarily a social club, although a purely social club obviously would not qualify. By focusing on the dichotomy between “social” and “educational or charitable” purposes, the YCC distorts the issue. The administrative law judge did state that the YCC existed primarily for the benefits of its members but did not label those benefits as being social. The judge went on to hold that the YCC failed to meet the “definition of exclusively charitable or educational as defined by Illinois courts.” As the courts have held when considering tax-exempt status for real property, the statutory term “exclusively used” refers to primary purpose rather than secondary or incidental purpose. E.g., People ex rel. Nordlund v. Association of the Winnebago Home for the Aged (1968), 40 Ill. 2d 91, 101, 237 N.E.2d 533.

THE EDUCATIONAL EXEMPTION

To support its position that it qualifies for the purchaser’s sales tax exemption based on its educational activities, the YCC cites several cases involving property tax exemptions. For example, in Association of American Medical Colleges v. Lorenz (1959), 17 Ill. 2d 125, 160 N.E.2d 763, the court held that an organization need not be a “school” itself to qualify for the educational purposes exemption and found a “real and substantial connection” between the activities of the Association of American Medical Colleges and the intent of the tax exemption for educational purposes. The association’s activities included the accrediting of medical schools, giving admissions tests for medical schools, performing placement functions and evaluating curricula at medical schools, and compiling student information for use in developing programs of instruction. The court found that these functions were identical to those which would afford exemption if performed by each individual member of the association.

The YCC asserts that its activities, like those of the association in the above-cited case, served Yale University in ways that have a real and substantial connection with the educational purposes of Yale and would afford tax exemption if Yale performed them itself.

We do not believe that the recruiting and fund-raising activities of the YCC on behalf of one out-of-State private school are truly comparable to the activities of the American Association of Medical Colleges on behalf of member schools throughout the nation. The association’s efforts to set and maintain a standard of academic excellence for medical schools fit within the purpose of the tax exemption by improving educational standards and thus conferred a substantial benefit on the public. While the YCC’s efforts to encourage top-quality students to attend Yale may maintain the educational standards of Yale, they do little to benefit the tax-paying public comprised of Illinois citizens.

This “public benefit” aspect of tax exemption has been long recognized in Illinois law. In the context of educational exemptions, the courts have used a two-part test to determine whether a particular private organization may be classified as a “school” and therefore claim exemption from taxes. (See Illinois College of Optometry v. Lorenz (1961), 21 Ill. 2d 219, 221, 171 N.E.2d 620 (holding that Illinois College of Optometry qualified for exemption under this test: (1) the institution must offer a course of study which fits into the general scheme of education established by the State, and (2) the course of instruction must lessen the tax burden of the public by providing an education which would otherwise have to be furnished by the State).) Not all educational-type not-for-profit organizations have been granted property tax exemptions based on this test. See American College of Chest Physicians v. Department of Revenue (1990), 202 Ill. App. 3d 59, 559 N.E.2d 774, appeal denied (1990), 135 Ill. 2d 553, 564 N.E.2d 834 (private institution providing services primarily to member doctors who specialized in diseases of the chest did not qualify for property tax exemption as a school even though it offered some courses of continuing medical education; organization did not lessen burden on the State to provide such education, since Illinois does not require continuing medical education); Winona School of Professional Photography v. Illinois Department of Revenue (1991), 211 Ill. App. 3d 565, (not-for-profit private photography school did not meet the test to qualify for the real estate tax exemption accorded to Illinois schools).

The YCC does not, of course, contend that it is a school but rather urges us to find that because Yale University is a school to which the exemption would apply, and the YCC is performing the same functions that Yale could, the exemption should apply to those activities performed on behalf of furthering Yale’s educational objectives.

Such a functional analysis is not without appeal. Nevertheless, if we look only at the nature of the activity in the abstract and not whether the organization performing the activity can be characterized as a “school” within Illinois taxing law we may unwittingly expand the group of organizations who were intended to be given an exemption from taxation. (See American College Testing Program, Inc. v. Forst (Iowa 1970), 182 N.W.2d 826.) In that case, the Iowa Supreme Court denied an application by the American College Testing Program, Inc. (ACT Program), to be exempted from paying Iowa sales tax under a provision of law that exempted “educational institutions” from the tax. The court recognized that the ACT Program was a not-for-profit organization having the primary purpose of assisting college-bound high school students and its member colleges from 33 States to achieve the best possible match between a student’s potential and a particular college. The court noted that the testing of college-bound high school students benefitted educational institutions, but nonetheless construed the tax exemption narrowly. (Iowa case law apparently defines “educational institution” in a way similar to the Illinois case definition of what is a “school”.) See, e.g., Illinois College of Optometry v. Lorenz (1961), 21 Ill. 2d 219, 171 N.E.2d 620.

Significantly, the Iowa court also rejected the ACT Program’s attempt to fit within the rationale of Iowa cases that have allowed certain groups that are not charities themselves (such as cooperative hospital laundry services) to claim the tax exemption based on the fact that such associations consist of individually exempt organizations, acting in concert. Hence, the Iowa court followed reasoning similar to that of the Illinois court in Association of American Medical Colleges and recognized that a group of exempt organizations is entitled to the same exemptions as the individual members could claim. The Iowa court concluded, however, that the ACT Program did not qualify under this rationale. The program was founded by two educators as an independent organization. However advantageous the testing service was to the schools using it in lieu of creating their own tests, the court did not believe that the ACT Program constituted a “cooperative function of a group of exempt [organizations] acting in concert.” (American College Testing Program, Inc., 182 N.W.2d at 828.) The court concluded that since tax exemptions were to be strictly construed, all doubts were to be resolved in favor of taxation.

The YCC, unlike the Association of American Medical Colleges or a cooperative hospital laundry service, is not a group of exempt organizations acting in furtherance of educational or charitable goals. The YCC only represents one tax-exempt organization, Yale University. Moreover, whatever it hopes to achieve on behalf of Yale does not ease the tax burden of Illinois citizens.

The YCC is not a school itself, offering a course of study that lessens the tax burden by providing an education which would otherwise have to be furnished by the State. As the case of American Col lege of Chest Physicians suggests, it is not solely the characterization of the group’s activities or its use of the real estate that determines tax-exempt status; rather, the preliminary question is whether the organization seeking the exemption is a “school” as commonly understood or within the rationale of Association of American Medical Colleges.

We conclude, therefore, that the YCC’s status must be considered apart from that of Yale University. As noted, the YCC is not itself an exempt school under case interpretation. The YCC is not a recognized part of the University. Its members are not part of the staff that the University maintains in its admissions department. YCC members who interview applicants rate them and forward the information to the school but do not make the admissions decision, which is reserved to Yale.

Even if we were to assume that the YCC need not be a school itself to claim the exemption, the fact remains that the standard by which the particular educational activity is judged is whether it is “exclusively” for school purposes, as that phrase has been defined in the real property exemption cases. (For purposes of this appeal we make no distinction based on the fact that the tax exemption in issue is the sales tax and not the real property tax.) The “exclusive use” concept was explained in MacMurray College v. Wright (1967), 38 Ill. 2d 272, 230 N.E.2d 846. As the court held, an exclusive use for school purposes does not require a showing that the use is “absolutely indispensable for carrying out the work of the institution. *** Exemption will be sustained if it is established that the property is primarily used for purposes which are reasonably necessary for the accomplishment and fulfillment of the educational objectives, or efficient administration, of the particular institution.” (Emphasis added.) 38 Ill. 2d at 278, 230 N.E.2d at 850 (holding that college staff housing facilities are not exempt from property taxation where the primary use is residential and there is no showing that residence in the facilities is required for staff to perform its professional duties).

While the YCC’s activities undoubtedly assist Yale’s efforts to recruit Chicago-area students, there is no evidence that Yale University could not attract students without the efforts of the YCC or that the actions of the YCC are “reasonably necessary” for Yale to fulfill its educational objectives or operate the school efficiently.

Nor do we find persuasive the YCC’s reliance upon Northwestern Memorial Foundation v. Johnson (1986), 141 Ill. App. 3d 309, 490 N.E.2d 161, where the court permitted a not-for-profit organization that was not itself a charity to claim a charitable exemption based on the use of property. In Northwestern, the court granted a tax exemption to the organization that operated a parking lot for an affiliated, tax-exempt, charitable organization, a hospital. The court took judicial notice of the location of the hospital complex, in a densely populated urban area, and concluded that the availability of parking was reasonably necessary to accomplish the efficient administration of the hospital.

The Northwestern case is distinguishable because there the availability of parking (and thus access to the hospital) was directly related to the hospital’s ability to function as a hospital in the congested urban area. In contrast, regardless of how important a school’s admissions goals may be to the school, we do not believe that a Chicago-based alumni association’s recruitment activities on behalf of Yale in Connecticut are reasonably necessary to the administration of that school under the pertinent Illinois case law. We do not mean to minimize the value to Yale of the YCC’s recruiting and fund raising. We conclude, however, that the YCC’s activities are not so clearly related to the educational goals or administrative needs of Yale as to require this court to reverse the Department’s denial of the purchaser’s sales tax exemption.

THE CHARITABLE EXEMPTION

The YCC’s alternative argument that it qualifies as a charity or performs exclusively charitable functions must also be rejected. While the YCC is engaged in raising funds to contribute to the Yale Foundation for helping fund scholarships to Yale, we do not believe this activity may be characterized as charitable within the meaning of the applicable tax law.

The pertinent criteria for determining whether a particular organization’s use of property is entitled to a property tax exemption are these: (1) the benefits derived are for an indefinite number of persons, persuading them to an educational or religious conviction, for their general welfare or in some way reducing the burdens on the government; (2) the organization has no indices of for-profit structure such as capital, stock, or shareholders, and earns no profit, but rather (3) derives its funds mainly from private and public charity and the funds are held in trust for the objects and purposes expressed in the charter; (4) the charity is dispensed to all who need and apply for it and does not provide gain or profit in a private sense to any person connected with it; (5) no obstacles are placed in the way of those seeking the benefits; and (6) the exclusive use of the real property is for charitable purposes. E.g., Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 156-57, 233 N.E.2d 537; American College of Chest Physicians, 202 Ill. App. 3d 59, 559 N.E.2d 774.

The YCC argues that it “is organized and operated to benefit the public by the influence of education” and that it accomplishes this public benefit by “identifying and evaluating applicants to Yale, stimulating interest in Yale among alumni and the public at large, and maintaining a Yale presence in Chicago.” An organization designed to benefit Yale exclusively does not appear to dispense its benefits to an indefinite number of people or all those who need and apply for it. The State of Illinois and its taxpayers receive no apparent relief from any economic burden by the YCC’s activities. Accordingly, we find it hyperbolic to claim as a “charitable purpose” the benefits reserved exclusively to Yale alumni and students.

For the reasons set forth, we affirm the denial of the YCC’s application for a purchaser’s sales tax exemption.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE HARTMAN JUSTICE DiVITO,

text:
    ALVIN D. WELCH et al., Plaintiffs-Appellants, v. DAVID N. JOHNSON et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—91—0909
    Opinion filed May 14, 1991.

      DiVITO, J., dissenting.
    Nathaniel R. Howse, Jr., of Chicago, for appellants.
    Richard E Friedman and Ernesto D. Borges, Jr., both of Chicago, for appellee David N. Johnson.
    James D. Montgomery & Associates, Ltd., of Chicago (Jean M. Temple-ton, of counsel), for appellee Harvey Municipal Officers Electoral Board.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs appeal the circuit court’s grant of summary judgment in favor of defendant, David N. Johnson (Johnson), finding that his statement of economic interests, as amended, met all statutory requirements. The appeal raises as issues whether (1) the original omissions on Johnson’s statement of economic interests must result in ineligibility for, or forfeiture of, the mayoralty of the City of Harvey, (2) Johnson’s amended statement of economic interests relates back to the date on which he filed his original statement, and (3) evidence was improperly submitted and considered at the March 15, 1991, hearing. In the interests of timeliness, we have already ruled upon the issues presented in this appeal. As indicated in our order of reversal issued on April 19, 1991, our reasons were to be set forth in an opinion, which now follows.

The City of Harvey mayoral election was to take place on April 2, 1991. Johnson, the incumbent mayor, sought inclusion on the 1991 mayoral ballot. Damon Rockett, a plaintiff in this case, was one of the other five candidates for mayor of Harvey. Alvin Welch, also a plaintiff, is a resident and legal voter in that city.

On January 22, 1991, Johnson timely filed his statement of economic interests in the office of the Cook County clerk, as required by the Elinois Election Code. (See Ill. Rev. Stat. 1989, ch. 46, par. 10—6 (Election Code).) Item number seven on the statement required a candidate to list the name of any unit of government by which he was employed during the preceding year, other than the unit of government related to his candidacy. Johnson wrote “none” in response to that item. Johnson also wrote “none” in response to question number eight, which sought disclosure of any honoraria in excess of $500 received during the preceding year.

On February 1, 1991, plaintiffs filed a verified complaint for a declaratory judgment and injunctive relief, requesting that Johnson’s nominating papers be declared void and that his name not appear on the 1991 mayoral ballot. Plaintiffs claimed that Johnson failed to indicate on his statement of economic interests that he was employed by Community College District 510 (District 510), an independent unit of government. His statement, therefore, was allegedly false and incomplete. Johnson thereafter filed an amended statement of economic interests with the Cook County clerk on February 5, 1991, which listed his employment with District 510 and also disclosed that he had received an honorarium during the previous year in excess of $500.

Plaintiffs filed a petition for a temporary restraining order and preliminary injunction seeking to enjoin placement of Johnson’s name on the mayoral ballot. Johnson in turn filed his objections to plaintiffs’ petition, in which he averred that he inadvertently entered “none” in response to question seven on the statement of economic interests. He indicated that the correct response should have been “Board of Trustees of Community College District No. 510,” which body had employed Johnson as a tenured professor at South Suburban College for the past 18 years. Concurrent with his objections, Johnson filed a motion to strike and dismiss plaintiffs’ complaint.

At the hearing on March 15, 1991, the circuit court denied Johnson’s motion to dismiss plaintiffs’ complaint. Johnson then immediately tendered an answer to the complaint. Plaintiffs moved for judgment on the pleadings, or alternatively, summary judgment. Following further argument, the court granted plaintiffs’ motion for judgment on the pleadings. Johnson was then allowed to make an offer of proof as to his state of mind in completing the statement of economic interests. Through the testimony of Johnson and Frank Piekarski, a City of Harvey commissioner, it was adduced that Johnson’s employment with South Suburban College was known throughout the community. He lectured extensively before organizations in Harvey and elsewhere, and his position with the college had been noted in the press. Further, his campaign literature disclosed his employment and activities with District 510. Following the offer of proof, the court took the matter under advisement.

On March 19, 1991, the circuit court entered a written judgment summarizing the proceedings to date, ruling on all pending motions, and denying plaintiffs’ motion for a temporary restraining order and preliminary injunction. The court found that, in light of the offer of proof, Johnson did not intend to falsify his statement of economic interests or mislead voters regarding his employment by District 510. The statement filed on January 22, 1991, together with the amended statement, satisfied the requirements of the Election Code. Plaintiffs’ motion for judgment on the pleadings, which previously had been granted, was denied by the court in a modification of its prior ruling. Summary judgment, instead, was granted in favor of Johnson.

Plaintiffs filed their motion for reconsideration on March 21, 1991. At the hearing, they provided affidavits of 93 voters registered in the City of Harvey who had been unaware of Johnson’s employment with South Suburban College. The court denied the motion, and this appeal followed.

The mayoral election was held as scheduled on April 2, 1991, with Johnson emerging as the winner by 12 votes. Plaintiffs had appealed on March 21, 1991, and moved for expedited consideration, which was granted.

I

Plaintiffs first argue that Johnson’s name should have been removed from the mayoral ballot because he provided inaccurate information on his statement of economic interests.

The Election Code requires a political candidate’s petition for nomination to include a statement of economic interests, to be filed with the county clerk, as prescribed by the Illinois Governmental Ethics Act (Ethics Act) (Ill. Rev. Stat. 1989, ch. 127, par. 601—101 et seq.). Failure to file such statement results in the invalidity of the candidate’s nomination papers. (Ill. Rev. Stat. 1989, ch. 46, par. 10—5(3).) The Ethics Act states in relevant part: ■

“Any person required to file a statement of economic interests under this Article who willfully files a false or incomplete statement shall be guilty of a Class A misdemeanor.
Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office or position of employment, as the case may be ***.” (Ill. Rev. Stat. 1989, ch. 127, par. 604A-107.)

The starting point in ascertaining legislative intent is in the language of the statute itself. (Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 259, 509 N.E.2d 509.) The statute, on its face, makes clear that willful misstatements or omissions violate the Act. Further, a complete failure to file the statement makes the candidate ineligible for office. The statute, however, is silent on the question of whether an inadvertent omission on an economic disclosure statement requires ineligibility for, or forfeiture of, office.

In Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 446 N.E.2d 256, plaintiff filed a statement of economic interests in connection with his candidacy for alderman of Chicago’s third ward. On the statement, however, plaintiff wrote “3rd Ward” next to his name and did not make any other reference to the office which he was seeking. The court said that candidates were required to comply with section 4A—104 of the Ethics Act (Ill. Rev. Stat. 1989, ch. 127, par. 604A—104), which, when read together with section 10—5 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 10—5(3)), made mandatory the inclusion of the office sought. The designation made by plaintiff did not describe the office of alderman for the third ward, and his name was struck from the ballot. Jones, 112 Ill. App. 3d at 929-30.

In Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, candidates for the board of Homewood-Flossmoor School District 233 filed their statements of economic interests with the secretary of the school board rather than with the county clerk. The candidates also failed to include certain information on the circulator’s affidavit contained in their nominating petitions. The court strictly construed the provisions of the Election Code and held that the candidates violated a mandatory statutory provision. Although these deficiencies appeared to be “technical violations,” the reviewing court held that the laws had been designed to protect the integrity of the electoral process rather than a bureaucratic interest. The names of the candidates, therefore, were removed from the ballot. Havens, 102 Ill. App. 3d at 567-69.

Other cases have also provided instances where candidates were removed from office or struck from the ballot based on omissions, misstatements, or inaccuracies on their statements of economic interests and on other documents in connection with their candidacy. See Bolger v. Electoral Board (1991), 210 Ill. App. 3d 958; Serwinski, 156 Ill. App. 3d 257; Miceli v. Lavelle (1983), 114 Ill. App. 3d 311, 448 N.E.2d 989.

Provisions imposing disqualification of candidates must be construed strictly in favor of eligibility. (Bryant v. Cook County Electoral Board (1990), 195 Ill. App. 3d 556, 558, 553 N.E.2d 25.) The State, however, has been held to have a compelling interest in preserving the integrity of the electoral process and in regulating the number of candidates on the ballot. Richards v. Lavelle (1980), 620 F.2d 144, 147; Havens, 102 Ill. App. 3d at 571.

In this case, it is undisputed that Johnson’s responses to questions seven and eight on his original statement of economic interests were incorrect. Although it may be inferred from the evidence that he did not willfully make the misstatements, the statute provides only that he is not subject to criminal liability in such a case. Johnson, nevertheless, has failed to comply with requirements prescribed by Illinois statute, and his name should not have appeared on the mayoral ballot.

The dissent states that “there is no statutory provision for inadvertent omissions or misstatements.” (Emphasis in original.) (214 Ill. App. 3d at 487.) The Election Code, however, explicitly provides that a candidate’s nomination papers are not valid if he “fails to file a statement of economic interests as required by the Illinois Governmental Ethics Act.” (Ill. Rev. Stat. 1989, ch. 46, par. 10—5(3).) The Ethics Act, in turn, requires a verified disclosure statement which is “true, correct, and complete.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 127, par. 604A—104; see Troutman v. Keys (1987), 156 Ill. App. 3d 247, 252, 509 N.E.2d 453; Havens, 102 Ill. App. 3d at 568.) Although section 4A—107 of the statute provides simply that “[fjailure to file a statement within the time prescribed” (Ill. Rev. Stat. 1989, ch. 127, par. 604A—107) will result in the appropriate sanction, this language implies that the candidate’s statement be free of omissions and misstatements. If this were not the case, disclosure provisions would serve no purpose and the statement of economic interests would be of no use to the public. Further, Johnson’s preelection publicity, campaign literature, and general reputation throughout the community cannot serve as substitutes for truthful and accurate disclosures on the statutorily required statement of economic interests. (See Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 126, 317 N.E.2d 534.) Johnson’s initial filing, therefore, is akin to a failure to file the requisite statement.

Johnson argues that his misstatement should be ignored because the document “was prepared in haste and was not thoroughly read.” Were we to accept his argument, we might encourage others in the future to be less than candid in completing the statement. Johnson signed the verification on the statement, attesting that it had “been examined by [him] and to the best of [his] knowledge and belief is a true, correct and complete statement of [his] economic interests.” (Ill. Rev. Stat. 1989, ch. 127, par. 604A—104.) That statement is not a mere formality and cannot be treated as such. A candidate’s statement of economic interests is important because “[t]he public has a right to know of any financial dealings, however indirect, between a candidate and the unit of government in which he seeks office [and] *** the Election Code [is] designed to facilitate that right.” (Jones, 112 Ill. App. 3d at 930.) The sanction imposed here is in furtherance of the State’s legitimate interest in protecting the integrity of the electoral process by requiring candidates to comply strictly with the election laws. See Havens, 102 Ill. App. 3d at 571.

II

Johnson’s amended statement, which was filed 14 days after the deadline, did not serve to cure the defect in his original filing. The Election Code does not provide for an amended statement of economic interests, and Johnson has provided no authority to support his argument that the amended filing relates back to the date of the original filing. Johnson, in effect, asks this court to hold that a candidate for public office may amend his statement of economic interests and refile after the applicable deadline. Such a ruling, however, would be tantamount to legislation. Although courts ascertain the meaning of and give effect to every valid act of the legislature, they cannot add language, supply omissions, or remedy defects in matters committed to the legislature, however practical, desirable, or beneficial the outcome. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 402, 515 N.E.2d 1222; Alexander v. Human Rights Comm'n (1988), 166 Ill. App. 3d 515, 518, 519 N.E.2d 1092.) The legislature has provided for amended filing of documents even after lapse of the statutory limitations period in situations where it has seen fit to do so. (See, e.g., Ill. Rev. Stat. 1989, ch. 110, par. 2—616 (amended pleadings).) Johnson’s amended statement, therefore, did not satisfy the prevailing statutory filing requirements.

III

Plaintiffs also challenge Johnson’s offer of proof made at the March 15, 1991, hearing. At that hearing, Johnson tendered his answer to plaintiffs’ complaint, and plaintiffs immediately moved for judgment on the pleadings or summary judgment. The court granted plaintiffs’ motion for judgment on the pleadings. Johnson’s attorney thereafter made an offer of proof as to Johnson’s intentions in filling out the statement. Johnson and a City of Harvey commissioner testified. At the close of the evidence, which established that Johnson’s employment with District 510 was known throughout Harvey, the court indicated that the original order favoring plaintiffs was entered, but that the case was taken under advisement with regard to the offer of proof. In the March 19, 1991, order, the court vacated the prior order and granted summary judgment in favor of Johnson.

A motion for judgment on the pleadings tests the legal sufficiency of the complaint. (Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 378 N.E.2d 558.) An offer of proof in connection with such a motion, therefore, is improper. The pleadings raise only a question of law, and the evidence which Johnson submitted in his offer of proof was improper for a disposition on the pleadings alone.

Johnson argues that the offer of proof constituted a' motion to vacate judgment pursuant to section 2—1203 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203(a).) No such motion, however, was filed by Johnson.

Because Johnson violated a provision of the Election Code, the circuit court erred when it granted summary judgment in his favor. Accordingly, we entered the order in this case which reversed the March 19, 1991, judgment order, voided the Harvey mayoral election, and remanded the matter to the circuit court with instructions to direct the county clerk to order a special election.

Reversed.

COCCIA, J., concurs.

JUSTICE DiVITO,

dissenting:

I respectfully dissent. There is no question that the filing of a statement of economic interests is a statutory requirement for candidacy for public office in Illinois. Ill. Rev. Stat. 1989, ch. 46, par. 10—5(3).

Where the majority and I differ is in interpreting the only statutory provision — a total of two sentences — which provides the only sanctions for doing something or doing nothing in connection with statements of economic interests:

“Any person required to file a statement of economic interests under this Article who willfully files a false or incomplete statement shall be guilty of a Class A misdemeanor.
Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office or position of employment, as the case may be ***.” Ill. Rev. Stat. 1989, ch. 127, par. 604A—107.

These provisions plainly provide two sanctions relating to statements of economic interests; one is penal, the other is disqualification from office. The willful filing of a false or incomplete statement subjects a person to a Class A misdemeanor charge; failure to file a statement in a timely fashion results in “ineligibility for, or forfeiture of, office.” Period.

The majority states that the provision requiring timely filing “implies that the candidate’s statement be free of omissions and misstatements.” (214 Ill. App. 3d at 484.) On the contrary, not only is that implicit requirement absent, there is no statutory provision for inadvertent omissions or misstatements. The only provision which addresses false or incomplete statements explicitly refers to willful conduct — and provides a penal sanction for its violation. In ascertaining legislative intent through the language of the statute itself, which, as the majority points out, is the correct starting point, the appropriate conclusion is that the General Assembly intended exactly what it provided: a criminal sanction for a willfully false or incomplete statement and disqualification for no statement or an untimely one.

In my opinion, in its holding that a candidate is ineligible for office for filing a statement containing inadvertent errors, the majority disregards clear and unambiguous statutory provisions which leave no room for interpretation. Though the General Assembly and the citizens of this State have a right to expect candidates to file truthful statements of economic interest, the General Assembly has not provided for office ineligibility or forfeiture for omissions or misstatements. If, as the majority states, the sanction imposed “is in furtherance of the State’s legitimate interest in protecting the integrity of the electoral process by requiring candidates to comply strictly with the election laws,” the General Assembly could have specifically provided for it.

The majority correctly points out that provisions imposing disqualification of candidates must be construed strictly in favor of eligibility. I suggest that this court should not create a disqualification where the General Assembly has not done so. I would affirm the judgment of the circuit court.