text:
    GREGORY WILLIAMSON, Plaintiff-Appellee, v. THE POLICE BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—88—3544
    Opinion filed April 18, 1989.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellant.
    Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy and Thomas J. Pleines, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant appeals from an order reversing a Chicago police board decision discharging plaintiff from the police department, arguing that the trial court abused its discretion in finding that defendant had failed to establish a sufficient chain of custody.

On February 6, 1986, Luana Gooden, plaintiff’s girlfriend, called the Chicago police department and reported that plaintiff smoked marijuana both on and off duty. The next day, after talking with plaintiff, she attempted to withdraw her complaint. On February 13, 1986, after speaking with plaintiff again and under his direction, she spoke with Sergeant Hovland at Internal Affairs and told him that she laced plaintiff’s tea with marijuana. Upon being told that she could be charged with aggravated battery, Gooden recanted her account regarding the tea. On February 19, 1986, Gooden returned to Internal Affairs and told Hovland that on February 14 plaintiff had come to her home and threatened her with a gun in an attempt to get her to sign a letter retracting her complaint against him. She also claimed that on February 18 plaintiff had come to her home and that while she sat outside in his car with him, he had tried to choke her for her refusal to sign an affidavit saying that she put marijuana in his tea. On cross-examination, she admitted that she had lied when she said that plaintiff had threatened her with a gun.

Internal Affairs investigated Gooden’s allegation of drug abuse, and on February 11, 1986, police agent Wallace contacted plaintiff at his district. Plaintiff, Wallace and Hovland reported to the medical service section, where plaintiff was given a “Notification of Charges/ Allegations” form. Officer Victor Miktal, who was sitting behind a desk in the laboratory, took a plastic cup from a sleeve of plastic cups, marked it with the next available drug screen number, gave it to plaintiff and directed him to the washroom. Hovland and Wallace watched as plaintiff urinated into the cup. Plaintiff then carried the cup to Miktal’s desk and, while plaintiff sat in a chair adjacent to the desk, Miktal poured the contents of the cup into a prenumbered, la-belled bottle, which he sealed with red evidence tape.

Plaintiff then completed part I of a drug screen specimen affidavit, in which he swore that on February 11, 1986, at 11:36, he urinated into a cup with the number 1159 written on its side; that he gave the cup to Miktal; that he watched Miktal pour the contents of the cup into a bottle with the number DS861159 printed on its side, close the top with a cap numbered 1159, and seal the bottle across the cap and down both sides with red evidence tape. Miktal, Hovland and Wallace all swore to witnessing the same thing. Later, at the police board hearing plaintiff denied watching Miktal seal the bottle.

Miktal placed the sealed bottle in the medical services section refrigerator, to which only two officers and their supervisor had access. Miktal then completed part II of the drug screen specimen affidavit, swearing that he placed specimen number DS861159 in the refrigerator at 11:40. At' 1 p.m., Miktal watched Sergeant Laffey take plaintiff’s specimen from the refrigerator. Part III of the drug screen specimen affidavit bears the signature “T. Laffey,” attesting to the fact that he removed specimen number DS861159 to the American Institute of Drug Detection (hereinafter AIDD).

Vicky Zarazinski, who is responsible for keeping records of incoming drug test requisitions at AIDD, testified regarding the drug test requisition form for specimen number DS861159. The purpose of the form is to record when a specimen bottle is received, its condition and whether there were any irregularities with the incoming specimen. It also provides a matching accession number, which is used to identify the specimen. Specimen number DS861159 was given accession number DD-26345. There were no irregularities recorded on the requisition form. Zarazinski placed the requisition form in a locked filing cabinet, the keys to which only she, the president of AIDD and the laboratory supervisor had.

James Walsh testified that he took the specimen out of a locked refrigerator at AIDD and checked to ensure that the seal was intact. He then broke the seal, and when he ran an EMIT test on the urine for the presence of drugs, the sample tested positive for THC, the active component of marijuana. He marked the lid with the accession number and noted on the bottle that the sample was presumptively positive, and then put the specimen into a box which would be put into a locked refrigerator for later confirmation of the positive result. On cross-examination, he stated that he did not know who sealed the specimen or who originally put the specimen in the refrigerator. He also stated that there had been occasions when the test equipment reported false positives.

Joyce Mah, the only other person to have access to the refrigerator, performed a gas chromatography mass spectrometry which confirmed that the specimen was positive for marijuana. She then placed the sample in a locked, frozen storage, when she took the specimen from the refrigerator the bottle was not sealed and she did not know if anyone had tampered with it; however, she testified that there was “very limited access” to the refrigerator and she did not see anyone tamper with the specimen.

Police Superintendent LeRoy Martin filed charges against plaintiff with the Chicago police board for violating the following rules:

Rule 1 — Violation of any law or ordinance.

Rule 2 — Any action or conduct which impedes the department’s efforts to achieve its policy and goals, or brings discredit upon the department.

Rule 6 — Disobedience of an order or directive, whether written or oral.

Rule 8 — Disrespect to or maltreatment of any person, while on duty or off.

Rule 9 — Engaging in any unjustified verbal or physical altercation with any person, while on or off duty.

Rule 14 — Making false report, written or oral.

Rule 38 — Unlawful or unnecessary use or display of a weapon.

On March 11, and April 7, 1988, a hearing was conducted before a hearing officer of the Chicago police board, and plaintiff was found not guilty of attempting to bribe, threaten, mistreat, or physically, verbally, or with a handgun assault Gooden. He was found guilty of Rules 1, 2 and 6 for submitting a urine specimen which evidenced use of marijuana. Plaintiff was discharged from the police department on May 23,1988.

On June 27, 1988, plaintiff filed a complaint in administrative review in the circuit court, and on November 3, 1988, the trial court found that the chain of custody was insufficient, stating:

“Reversed, contrary to the manifest weight of the evidence, contrary to the law. I am astounded that the champion of civil rights of the Corporation Counsel would permit this kind of testimony to be used in this fashion to destroy the career of a distinguished police officer. There is an accommodation of a commendations contained in the record [sic].
The objection that the Court has is the objection that was pointed out. There is no question that Officer Williamson’s urine sample was placed in a secure ice box, if you will, in the evidence recovered property section of the police department. There is equally no question that a bottle bearing the same identification number was taken from a secured ice box in the testing laboratory, and that this test result was positive, but the means or method by which the bottle was transported some distance from the police evidence and recovered property department to the testing laboratory is totally unexplained except with hearsay evidence.
Officer Laffey whose duty apparently it was to transport these items was not present, did not testify, nor was his absence satisfactorily explained so that bottle A within the police department and a bottle labeled A arrived in the testing lab. No one knows how. That kind of evidence would not be sufficient to convict in a criminal case, and in this particular case, while I recognize the burden of proof is different, I do not believe that type of evidence should be used to destroy a hither to an [sic] unblemished record and career of a police officer.”

On December 13, 1988, the trial court ordered that plaintiff be reinstated with back pay and benefits. Defendant now appeals.

Opinion

Defendant argues that the trial court erred in reversing the police board’s decision, maintaining that it sufficiently established a chain of custody of plaintiff’s urine. Plaintiff contends the chain is incomplete because Officer Laffey, the individual who transported the specimen to AIDD, did not testify, and therefore, there was no evidence that the seal was not tampered with during the time period that Laffey had control over it. He emphasizes that Walsh did not know who had sealed the specimen or put it in the AIDD refrigerator. Plaintiff also questions how Laffey was able to take the specimen out of the medical service section refrigerator if, as Miktal testified, only a few people have access to it; however, since plaintiff did not question Miktal on this point during the hearing, this court is not the proper forum in which to raise a new fact question.

Plaintiff also contends that there is confusion as to what number the specimen was identified by at AIDD. The requisition form indicates that the specimen was given accession number 26345 and it is listed under that number in the report of test results, but at the hearing the bottle had the number 26355 imprinted on it. This discrepancy was not investigated by defense counsel at the hearing, and, although plaintiff made a general objection to the chain of custody, he did not bring to the hearing officer’s attention the fact that the specimen had apparently been given two different numbers, nor did he argue that the chain of custody was insufficient as a result; therefore, plaintiff has waived this issue for review. We note, however, that at the hearing Officer Miktal identified the bottle as that in which he poured defendant’s urine at the medical service section; thus, there is no question but that the defendant’s specimen was given the number under which the test results appear. Therefore, although there are two numbers, it is clear to us that defendant’s specimen was correctly identified throughout the testing process.

It is necessary to establish a chain of custody where an object sought to be admitted has no distinguishing characteristics. (People v. Stevenson (1980), 90 Ill. App. 3d 903, 908, 413 N.E.2d 1339.) The chain of custody must be of sufficient completeness “to render it improbable that the item has either been exchanged with another or contaminated or tampered with” (People v. Winters (1981), 97 Ill. App. 3d 288, 290, 422 N.E.2d 972, cert. denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282), and a trial court’s ruling on the sufficiency of a chain of custody is subject to reversal only for an abuse of discretion (Winters, 97 Ill. App. 3d at 290). A sufficient chain of custody does not require that every person involved in the chain testify at trial, nor is the State required to exclude all possibility that the article may have been tampered with (Winters, 97 Ill. App. 3d at 294-96), and in the absence of any tangible suggestion of tampering, alteration or substitution, it is sufficient to prove a reasonable probability that the article has not been changed in any important respect. (People v. Madden (1978), 57 Ill. App. 3d 107, 111, 372 N.E.2d 851; see also People v. Tribett (1981), 98 Ill. App. 3d 663, 674, 424 N.E.2d 688.) In brief, the State must show that reasonable protective measures were taken to ensure that the substance taken from defendant was the same substance tested in the laboratory (People v. Ryan (1984), 129 Ill. App. 3d 915, 919, 473 N.E.2d 461), and mere speculation that the article has been altered is not enough to undermine the adequacy of the chain of custody. People v. Rhoades (1979), 74 Ill. App. 3d 247, 253, 392 N.E.2d 923; see also People v. Ryan, 129 Ill. App. 3d at 919.

In Tribett, defendant argued that the State had failed to establish a continuous chain of possession between the substance seized by the arresting officers and the substance analyzed by the police department chemist. At trial, Officer Fraser testified that he watched Officer O’Grady place a packet containing brown powder in an evidence envelope, sign the envelope and place tape over his signature.

“O’Grady then left the room to give the evidence to the desk sergeant who, as a matter of procedure, would place the evidence into the safe until it could be transported to the crime lab. Although O’Grady was deceased at the time of trial and therefore unable to testify that he had given the evidence envelope to the desk sergeant, Fraser identified O’Grady’s signature as the signature on the evidence envelope and noted that the scotch tape was still intact. Fraser also identified the brown substance which defendant dropped on the night of June 21, 1977. Additionally, the police chemist testified that she received the evidence envelope on June 29, 1977, for analysis. She also testified the she received the envelope in the same sealed condition ***. ***
Defendant *** argues that because the State failed to account for the period between the time O’Grady left Fraser’s sight with the sealed envelope on June 21, 1977, and June 29, 1977, when the police department chemist testified that she first saw the envelope, that it failed to prove beyond a reasonable doubt that the substance seized was the substance analyzed by the chemist. However, Woessner [People v. Woessner (1971), 132 Ill. App. 2d 58, 268 N.E.2d 508) is distinguishable. There the police testified that the contraband was kept unsealed for five days and that he did not initial, seal or secure the contraband in the vault which was available. Here, the officers placed the packet in question into an evidence bag, sealed it, signed it, and placed tape over the signature. The chemist testified that she received the evidence in that same condition.” (Tribett, 98 Ill. App. 3d at 674.)

The court held that since there was no suggestion that the substance was altered, substituted or tampered with, the State had sufficiently established a proper foundation for its introduction into evidence. 98 Ill. App. 3d at 675.

In People v. Anthony (1963), 28 Ill. 2d 65, 190 N.E.2d 837, the court upheld the chain of custody, stating:

“The defendant contends that because there was no direct testimony from the man in the crime laboratory who actually received the sealed envelope from [0]fficer Parker and placed it into a locked cabinet that the chain of possession was broken and the State’s foundation insufficient. *** The record here discloses that the narcotics were taken from the defendant, placed in a sealed envelope and brought by Parker to the crime laboratory. Before delivering the envelope Parker wrote his name on the back flap of the envelope and covered the same with cellophane tape. The chemist who examined the narcotics found the envelope in the same sealed condition with no suggestion of tampering, alteration or substitution. In our opinion the techniques employed were sufficient to make admissible the testimony as to the result of the chemical analysis.” 28 Ill. 2d at 68-69.

The court also upheld the chain of custody in Ritenour v. Police Board (1977), 53 Ill. App. 3d 877, 369 N.E.2d 135, stating:

“After the particles fell from the alley lamp, they were picked up by the two men from the Bureau of Electricity, who handed them to Sergeant Dorff. He then took them to the police crime lab. There, Dorff placed them in a brown envelope, which he sealed and then initialled and dated the envelope flap — following which he placed cellophane tape over the flap. He then gave the sealed envelope to Officer Charnow, a lab technician, who gave him an investory [sic] receipt. Sergeant Smith stated he was given the sealed envelope the next day by Charnow and placed it in an evidence retention drawer, where it remained until opened by him to conduct his analysis, at which time Smith said it showed no signs of tampering.
Plaintiff argues that because there was no direct testimony from Officer Charnow, who accepted the fragments from Dorff, the chain of possession was broken ***. He cites no supporting authority, and we find that case law is to the contrary.” 53 Ill. App. 3d at 880-81.

Illinois courts have held the chain of custody insufficient when a specimen was not inventoried, sealed or put in a secure place. People v. Slaughter (1986), 149 Ill. App. 3d 183, 500 N.E.2d 662; People v. Winters (1981), 97 Ill. App. 3d 288, 422 N.E.2d 972, cert. denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282; People v. Brown (1972), 3 Ill. App. 3d 879, 279 N.E.2d 382.

Here, Miktal, Hovland and Wallace all testified that the specimen bottle was sealed and put into a locked refrigerator at the police laboratory, and Walsh testified that the bottle was sealed when he removed it from the AIDD refrigerator. Moreover, there is no indication on the requisition form that there were any irregularities with the sample, such as a broken seal, when it was received at AIDD. As noted above, defendant is not required to call all those who came into contact with the specimen to testify (People v. Winters, 97 Ill. App. 3d 288, 422 N.E.2d 972); thus Laffey’s absence did not break the chain of custody. Plaintiff only speculates that the specimen was somehow tampered with, but, in the absence of a tangible suggestion of alteration, it is sufficient for defendant to demonstrate, as it has done here, that it took reasonable steps to ensure that the specimen was not changed in any important respect. People v. Rhoades (1979), 74 Ill. App. 3d 247, 392 N.E.2d 923.

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

Reversed.

BILANDIC, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL ROBERTS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2188
    Opinion filed April 19, 1989.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, of Chicago (Stacy J. Krebs, of Chapman & Cutler, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant Karl Roberts was found guilty of aggravated criminal sexual assault and criminal sexual assault. The trial court entered judgment on the aggravated criminal sexual assault count and sentenced defendant to an extended term of 60 years’ imrisonment. Defendant appeals, contending that the jury was not instructed that the State must prove the element of nonconsent beyond a reasonable doubt; that the State failed to establish the element of bodily harm; that the trial court improperly admitted statements regarding defendant’s recent release from prison; and that the extended term sentence is improper.

The victim testified that on June 28, 1985, she left her home at about 8:30 p.m. with two girl friends, Lucille Walker and Janell Fletcher. In the early morning hours, the victim and Lucille met defendant and Tina Hicks outside of a tavern. Lucille and Tina knew defendant, but the victim did not know him. The victim left the tavern to walk home alone. The victim and Lucille testified that defendant followed the victim. Lucille testified that when the victim left the tavern she had no facial swelling, no arm injuries, and was fully dressed.

The victim, who is four feet nine inches tall and weighs 108 pounds, testified that defendant approached her from behind, demanded sex, put one hand over her mouth and the other hand around her waist, and dragged her into an alley. When the victim screamed, defendant threatened to kill her. The victim testified that defendant said he wanted sex because “he had just got out of the penitentiary, and I was going to give him some.”

The victim testified that defendant struck her on the left side of her face with his fist, and threw her down to the cement, where she scraped her right elbow. Defendant ripped off some of her clothes. Defendant forced vaginal intercourse and then fellatio upon the victim. When the victim resisted again, defendant threw her back down onto her hands and knees and again raped her vaginally.

The police responded to a telephone call reporting the victim’s screams and drove into the alley at 3:30 a.m. Officer Ivan Jefferson observed defendant jump up, pull on his pants, and run. The victim emerged from the garage area wearing shoes and a shirt, and crying hysterically. The victim told Jefferson she had just been raped, and she described defendant. The victim was treated at the hospital and returned home at about 5:45 a.m. on June 29. Later that day, she noticed her face was swollen. That afternoon, Tina gave defendant’s name to the victim, which she in turn gave to the police. On June 30, she identified defendant in a photo array.

Upon learning that defendant had just been released from the penitentiary, Officer Kenneth White was able to obtain a last known address, which was several doors away from where the rape occurred. The Illinois Department of Corrections parole division gave the police a current address, and defendant was arrested. On July 1, the victim identified defendant in a lineup.

Lena Guiterrez, an emergency room nurse, testified as to the victim’s care after she was brought to the hospital. She told Guiterrez she had been raped and hit in the face. The victim’s right elbow was bandaged, and she received a tetanus shot. Officer Rick Roberts testified that the vaginal smears tested positive for the presence of spermatozoa.

At trial, defendant testified that he and the victim walked away from the tavern arm in arm and he agreed to pay her $10 to have sex with him. They had sex in a stranger’s backyard, but the'victim then demanded more money. She threatened that he would pay one way or another. Defendant denied that he ejaculated. When they had finished, they both dressed and left in different directions. Defendant did not tell this to the police because he did not have proper counsel. He denied telling the victim he had just been released from prison; however, defendant stated he had been released on March 22,1985.

In rebuttal, an assistant State’s Attorney testified that he interviewed defendant on July 1, 1985. Defendant stated that he did not have sex with the victim and that they parted company when they reached the alley.

Defendant initially contends that the jury instructions were inadequate as a matter of law because they required defendant to prove consent beyond a reasonable doubt. The jury was instructed, without objection, as follows:

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon [the victim]; and
Second: That the act was committed by the use of force or threat of force; and
Third: That the defendant caused bodily harm to [the victim].
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.
It is a defense to the offense of criminal sexual assault and aggravated criminal sexual assault that [the victim] consented.
The word ‘consent’ means a freely given agreement to the act of sexual penetration in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the defendant shall not constitute consent.”

In order to preserve an issue for review, there must be a specific trial objection and inclusion in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant made no objection here and thus has waived the issue for review. Defendant maintains, however, that the issue of consent is an affirmative defense and thus it is plain error not to include it in an instruction covering the elements of the crime.

The court has the burden of seeing that the jury is instructed on all elements of the crime charged, the burden of proof, and the presumption of innocence. The failure to do so results in the denial of due process. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Williams (1983), 120 Ill. App. 3d 900, 458 N.E.2d 1312.) We hold that an overall review of the entire set of jury instructions reveals that the trial court here met its duty. No plain error occurred.

In the present case, we believe the State’s evidence sufficiently established “nonconsent” beyond a reasonable doubt. Consent is the very antithesis of force. Where the State proves defendant used force, it necessarily proves the victim did not consent. Strong support for our holding that nonconsent is properly proved by inference when the State proves the “force or threat of force” element is found in a recent decision of our supreme court.

In People v. Haywood (1987), 118 Ill. 2d 263, 268, 515 N.E.2d 45, defendant argued that “force or threat of force” was unconstitutionally vague. The court stated in dicta that nonconsent should be proved beyond a reasonable doubt. Significantly, the court found nonconsent to be the equivalent of use of force.

“In common understanding, if it is said that one was forced to perform an act, it follows that the person’s act was nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly that person has not been forced. Thus, although the prosecution is not required to prove nonconsent formally, it is obvious that if the prosecution shows that there was an act of sexual penetration by force, that evidence demonstrates that the act was nonconsensual. To prove the element of force is implicitly to show nonconsent. Too, if force is established it would be redundant to require a separate showing of nonconsent as part of the prosecution’s case in chief. Thus, consent is made a defense to be raised by the accused to rebut evidence of force presented by the State.” (People v. Haywood, 118 Ill. 2d at 274.)

Similarly, our supreme court held in People v. Springs (1972), 51 Ill. 2d 418, 424, 283 N.E.2d 225, that it was not plain error to give an instruction on the element of “by force and against her will” while refusing to instruct the jury further defining the term “consent.” The court held that the use of “voluntary” and “consent” together was somewhat redundant, but found no error. Cf. People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573 (error to refuse consent instruction where proper objection made to trial court’s refusal, and State bears burden of proving want of consent beyond a reasonable doubt).

In People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251, this court stated that, “[i]n a sense, consent is an issue in every rape case tried in Illinois. The State is obliged to prove beyond a reasonable doubt that the act was ‘against her will.’ *** This is the equivalent to proof of absence of consent.” Burgin, 74 Ill. App. 3d at 69-70, 392 N.E.2d at 259. See also People v. Hayn (1976), 34 Ill. App. 3d 1029, 341 N.E.2d 182; People v. Browry (1972), 8 Ill. App. 3d 599, 290 N.E.2d 650; People v. Hanserd (1970), 125 Ill. App. 2d 465, 261 N.E.2d 317.

We believe that no plain error occurred here. The instructions, to which defendant offered no objection, adequately stated the law of consent. Defendant was not required to prove consent, and the jury was allowed to weigh “force” evidence against “consent” evidence to determine whether force or threat of force was present.

We also note that under the former Illinois tape statute, one element was that the act occur against the victim’s will. (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 1 (repealed 1984).) In 1983, the legislature rewrote the statute and eliminated nonconsent as an element of the offense. (See Inman & Lewis, H.B. 606: New Problems of Policy and Enforcement, 72 Ill. B.J. 404 (1984).) Significantly, a preliminary draft stated, “ ‘If the accused raises consent as a defense *** it shall be an affirmative defense ***.’ ” (72 Ill. B.J. at 406.) The enacted version deleted the word “affirmative”:

“It shall be a defense to any offense *** where force or threat of force is an element of the offense that the victim consented.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 17(a).)

The legislature clearly did not intend consent to be an affirmative defense, or to include it as an element of the crime.

We disagree with the holding in People v. Coleman (1988), 166 Ill. App. 3d 242, 520 N.E.2d 55, appeal denied (1988), 121 Ill. 2d 574. In Coleman, the court stated that it was plain error to omit an instruction on consent, notwithstanding defendant’s failure to object. The Cole man court reasoned that the instruction was vital because the State was obligated to prove nonconsent. Its only relevant support cited was Illinois Pattern' Jury Instructions, Criminal, No. 11.34, Committee Notes (2d ed. Supp. 1987).

We do not decide the debate as to whether consent is an “element” of the offense of aggravated criminal sexual assault which requires an instruction to that effect in every case. We do not decide, therefore, whether consent is an “affirmative defense” which shifts the burden of proof as opposed to a mere “defense.” We are faced only with the question of whether plain error occurred under the facts presented here.

Notwithstanding our finding that no plain error occurred, we hold further that even if it were error to omit the consent instruction, it was harmless error beyond a reasonable doubt. The trial court instructed the jury on the elements of aggravated criminal sexual assault, and on the defense of consent, the presumption of innocence, and the State’s burden. Overall, the instructions fully and fairly defined the applicable law. See People v. Bunting (1982), 104 Ill. App. 3d 291, 432 N.E.2d 950.

Moreover, any error was harmless beyond a reasonable doubt because the result of the trial would not have differed if the proper instruction had been given. See People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972; People v. Bailey (1986), 141 Ill. App. 3d 1090, 490 N.E.2d 1334.

In the present case, the evidence proved beyond a reasonable doubt that the victim did not consent to sexual intercourse with defendant. The victim testified that defendant, whom she had met, abducted her from behind; dragged her into an alley; threatened to kill her; struck her face; threw her to the ground; and forced intercourse twice and fellatio once. She screamed, causing someone to telephone the police department. As a result, police found the victim in the alley, half-naked and hysterical. She consistently reported to the police and hospital personnel that she had been raped. The physical evidence supported these statements. In addition, other evidence showed that the victim was uninjured, and was fully clothed, when she left the tavern alone, with defendant following her.

In his statement following arrest, defendant stated he never had sexual intercourse with the victim, and he later denied ejaculating. At trial, defendant testified he had sex with her for money. If the jury had believed defendant that the consensual sex occurred, it would have found him not guilty. Thus, even if the trial court had instructed the jury as to consent, the result of the trial would not have differed.

Defendant next contends that he was not proved guilty of aggravated criminal sexual assault beyond a reasonable doubt because there was insufficient evidence of bodily harm to prove more than mere criminal sexual assault. (See Ill. Rev. Stat. 1987, ch. 38, par. 12— 14(a).) Bodily harm, although difficult to pinpoint, involves some sort of physical pain or damage to the body, such as lacerations, bruises or abrasions, whether temporary or permanent. (People v. Haywood, 118 Ill. 2d at 276, quoting People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633.) Defendant twice punched the victim in the face and threw her to the concrete ground. The victim’s face was swollen on the day following the attack. According to the emergency room nurse, her right elbow abrasion was treated at the hospital. The evidence sufficiently established the requisite element of bodily harm.

Defendant also contends that certain statements regarding his recent release from prison were prejudicial and irrelevant. Defendant’s failure to object waived the issue on appeal. (See People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) No plain error occurred because the evidence was not closely balanced and any error was not of such a magnitude that it resulted in the denial of a fair trial. (See People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.) Moreover, no error occurred where the references were probative of defendant’s actions in committing the crime and were relevant to his intent and identity. See People v. Smith (1972), 6 Ill. App. 3d 259, 285 N.E.2d 460.

Defendant finally contends that the trial court abused its discretion in sentencing him to an extended term of 60 years.

Aggravated criminal sexual assault, a Class X felony, is punishable by 6 to 30 years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 12— 13, 1005 — 8—1(3).) The term may be extended to 30 to 60 years where defendant has been convicted of another Class X felony within 10 years prior to the present conviction. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 5—3.2(b)(1), 1005 — 8—2(a)(2).) Defendant argues before this court that his “criminal record is minimal.” Defendant was previously convicted of raping a woman in 1982. He pleaded guilty to rape and aggravated kidnapping and was sentenced to six and four years concurrently. Thus, defendant was eligible for an extended-term sentence. The issue, then, is whether the court abused its discretion in imposing such a sentence. People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.

The primary factor considered by the trial court at the sentencing hearing was that this was defendant’s second conviction for the same offense. Defendant was released on March 22, 1985. He raped the victim here just three months later. At the sentencing hearing, the first rape victim testified that defendant approached her in approximately the same area where the victim in the present case was raped. Similar to the facts in this case, the prior rape victim testified that defendant grabbed her from behind, held her throat, forced her into an alley, and tore her clothes. Defendant struck her on the head with his fists, breaking her nose, cutting her mouth, and causing her to faint. He took her to a garage, removed her clothes, and forced her to have sexual intercourse. When the police arrived, defendant fled. The victim was treated at the hospital for physical injuries and received extensive psychological counseling as a result of the severe trauma.

Defendant complains that the trial court considered the victim’s psychological harm when she offered no testimony about this. In contrast, he also states generally that he would not “mak[e] light of the trauma experienced by a victim of sexual assault.” We think the psychological harm resulting from the brutal rape graphically depicted here by the victim is obvious. (See People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802.) We have already found that there was sufficient evidence of physical harm.

Moreover, contrary to defendant’s argument, there was no double enhancement where “bodily harm” was an element of the offense (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(2)), since the aggravating factor for sentencing purposes required “serious harm” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(1)). (See People v. Kim (1986), 148 Ill. App. 3d 191, 498 N.E.2d 831 (defendant’s use of force was beyond that required to establish rape, and thus use of knife could be used as aggravating factor for sentencing purposes).) In addition, the record shows the court did consider the mitigating factors urged by defendant, including that his “criminal record is minimal,” that he received his GED in prison, reported regularly to his parole officer, had a job, and was “supported wholeheartedly by his family.” Notwithstanding these factors, we find no abuse of discretion in sentencing defendant to an extended term where, three months after his release from prison for a rape conviction, he returned to the same neighborhood and brutally raped a second woman.

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

Judgment affirmed.

FREEMAN, P.J., and RIZZI, J., concur.

       Justice McNamara participated in this opinion prior to his transfer to the sixth division.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS ex rel. RICHARD M. DALEY, State’s Attorney, Plaintiff-Appellant, v. 1986 HONDA, VIN JHMBB7230GC040153, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—1265
    Opinion filed April 19, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Catharine M. Forest, Assistant State’s Attorneys, of counsel), for the People.
    Joseph A. Macaluso, of Chicago (Robert J. Shelist, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, the State’s Attorney of Cook County, brought this action for a declaration of forfeiture as to the subject 1986 Honda pursuant to the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56V2, par. 1505). The trial court denied the requested relief, and the State appeals.

Illinois State police officer Thomas Hoffman testified that on April 8, 1987, he was in an unmarked car and stopped at a red light when he observed a 1986 Honda stopped next to his car. The driver and owner, claimant Joanne Rovario, held a one-inch hand-rolled cigarette between her thumb and forefinger nails, and puffed quickly several times. Hoffman ordered Rovario to pull over. When he approached, he smelled cannabis and removed the marijuana cigarette from the open ashtray. Following the seizure of the car, Hoffman conducted a search. In the locked glove box he found marijuana in a clear plastic bag. In Rovario’s purse were matchboxes containing cocaine, a razor, a small thin straw, amphetemines and Valium.

In the underlying criminal action, Rovario pled guilty to possession of less than 15 grams of a substance containing cocaine. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b).) The parties stipulated that Rovario possessed less than one gram of cocaine. The trial court sentenced Rovario to 30 months’ probation.

In these forfeiture proceedings, the trial court relied on a holding of this court. (People v. One 1946 Buick (1987), 164 Ill. App. 3d 963, 518 N.E.2d 397.) That decision was recently reversed in supreme court case No. 66468 (127 Ill. 2d 374). The trial court here found the vehicle was not subject to forfeiture because the cocaine was concealed in Rovario’s purse and thus the vehicle did not facilitate the concealment or possession of the drug.

The Illinois forfeiture statute subjects to forfeiture all vehicles “which are used, or intended to use, to transport, or in any manner to facilitate any violation of this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 56½, par. 1505(a)(3).) Our supreme court found the language of section 505(a)(3) to be clear and unambiguous. People v. 1946 Buick, 164 Ill. App. 3d 963, 518 N.E.2d 397.

The State must show, by a preponderance of the evidence, probable cause that the vehicle was used in the commission of an offense. Probable cause can be shown if reasonable grounds exist for the belief of guilt, supported by less than prima facie proof but more than a mere suspicion. (In re Twenty-Seven Thousand Four Hundred Forty Dollars (1987), 164 Ill. App. 3d 44, 517 N.E.2d 704; People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) Probable cause may be shown by circumstantial evidence. United States v. One 1984 Mercedes Benz (D. Haw. 1987), 673 F. Supp. 387.

Courts must strictly enforce statutory forfeiture provisions and there is little, if any, discretion in forfeiture cases. (United States v. One 1977 Chevrolet Pickup (D. Colo. 1980), 503 F. Supp. 1027, citing United States v. One 1973 Dodge Van (E.D. Mich. 1976), 416 F. Supp. 43.) The words of the statute must be read in a reasonable, commonsense manner. (1957 Chevrolet v. Division of Narcotic Control of the Department of Public Safety (1963), 27 Ill. 2d 429, 189 N.E.2d 347.) Under the plain language of the forfeiture statute, Rovario used her car “to transport, or in any manner to facilitate,” possession of the cocaine, and then pled guilty to this “violation of [the] Act.” Ill. Rev. Stat. 1987, ch. 56½, par. 1505(a)(3).

The term “facilitate” in section 505(a)(3) means to use the vehide “in any manner to make possession of the controlled substance easier or less difficult.” (People v. 1946 Buick, 127 Ill. 2d at 377.) We find that the vehicle here was used to make possession of the cocaine easier. We note that the court in People v. 1946 Buick declined to address the issue of a vehicle occupant’s mere possession of drugs on his person, because in 1946 Buick the driver used the car to hide the cocaine from the police by emptying the packet of cocaine onto the car floor when stopped for a traffic violation. Similarly, Rovario just as deliberately, and unsuccessfully, sought to intentionally conceal the drugs, not on her person, but within the car.

We, of course, follow the holding of People v. 1946 Buick. We also adhere to the holding of this court in People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592. In the Miller case, forfeiture was ordered even where .08 grams of cocaine dropped accidentally from the driver’s pocket as he stepped out of a car stopped for failing to heed a stop sign.

Having concluded that the trial court erred as a matter of law in holding that a vehicle cannot facilitate possession alone, and thereby serve as a basis for forfeiture, we proceed to determine whether the State and the claimant met their respective burdens of proof.

We find the State has met its burden. Rovario used the car with knowledge that she was transporting controlled substances. (See People v. 1946 Buick, 127 Ill. 2d 374 (a vehicle is subject to forfeiture where, with knowledge and consent of owner, it is used in any manner to make possession easier).) Rovario’s admitted guilt of possession of the cocaine transported in the car is sufficient to prove “more than mere ownership of the ‘guilty’ vehicle.” (1957 Chevrolet v. Division of Narcotic Control of the Department of Public Safety, 27 Ill. 2d 429, 189 N.E.2d 347.) The plain meaning of “transport” is simply to carry from one place to another. (United States v. One Clipper Bow Ketch Nisku (1st Cir. 1977), 548 F.2d 8.) Rovario was transporting the cocaine from her point of origin to her destination. A sufficient bond existed between the use of the car and the criminal offense. She smoked marijuana as she drove, carrying the cocaine in her purse and more marijuana in the glove compartment. Rovario apparently believed the car provided her with a dimension of privacy which would permit her to use, possess and transport controlled substances on the public streets. The car was not so far removed from the crime charged to be unaffected by the illegal possession. See United States v. One 1973 Dodge Van (E.D. Mich. 1976), 416 F. Supp. 43.

A person carrying drugs may use a car to be more elusive, move about at will, travel further, and escape observation, detection and capture. (United States v. One 1974 Cadillac Eldorado Sedan (2d Cir. 1977), 548 F.2d 421, quoting United States v. One 1972 Datsun (D.N.H. 1974), 378 F. Supp. 1200.) A car facilitates the transportation of even small quantities of controlled substances to a great degree when compared to the dangers faced when riding on public transportation or walking. One can arrive and depart quickly, and can make capture more difficult where, e.g., the police have received a tip that the individual would be carrying illegal drugs. See United States v. 1966 Beechcraft Aircraft Model King Air (4th Cir. 1985), 777 F.2d 947.

Once the government has established probable cause, the burden shifts to the party claiming an interest in the vehicle to show by a preponderance of the evidence that the vehicle was not used in violation of the Act. (United States v. One 1982 Buick Regal (N.D. Ill. 1987), 670 F. Supp. 808; United States v. One 1981 Cadillac Eldorado (N.D. Ill. 1982), 535 F. Supp. 65; United States v. One.1977 Chevrolet Pickup (D. Colo. 1980), 503 F. Supp. 1027.) Claimant here has failed to establish by a preponderance of the evidence that the vehicle was not subject to forfeiture. In view of the overwhelming weight of authority, we are unpersuaded by claimant’s defenses that the forfeiture statute is applicable because the quantity of cocaine found was small and because the cocaine was for personal use and not for resale. The facilitation requirement has been met.

Finally, Rovario argues on appeal that forfeiture is improper because the initial stop of her car was illegal and that her sentence of probation was not a final order. We agree with the trial court that Rovario waived these issues when she entered a plea of guilty and was collaterally estopped to deny facts admitted in the criminal case. (See People v. Del Vecchio (1985), 105 Ill. 2d 414, 475 N.E.2d 840; People v. Hart (1972), 52 Ill. 2d 235, 287 N.E.2d 697.) At the forfeiture hearing, the trial court properly denied Rovario’s motion to suppress the evidence from the criminal trial. See also United States v. One 1975 Chevrolet K-5 Blazer (W.D. Mich. 1980), 495 F. Supp. 737 (collateral estoppel applies; government can rely on facts adjudication in criminal trial to establish probable cause necessary for forfeiture).

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded with directions to enter an order of forfeiture.

Reversed and remanded with directions.

FREEMAN, P.J., and RIZZI, J., concur.

       Justice McNamara participated in this opinion prior to his transfer to the sixth division.


author: JUSTICE McLAREN

text:
    JOHN PETKUS et al., Plaintiffs-Appellants, v. ST. CHARLES SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    Second District
    No. 2—88—0858
    Opinion filed May 3, 1989.

      Raymond F. Agrella, of Shearer, Blood, Agrella & Boose, of St. Charles, for appellants.
    Gerald M. Sheridan, Jr., and Gregory A. Rode, both of Sheridan & Associates, of Wheaton, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, John and Anne Petkus (the Petkuses), brought an action for damages arising from a dispute over a mortgage debt. Defendant, St. Charles Savings and Loan Association (the Association), counterclaimed for attorney fees. Following a bench trial in the circuit court of Kane County, judgment was entered against plaintiffs on their complaint and in favor of defendant on the counterclaim for attorney fees. Plaintiffs appeal the judgment for attorney fees contending that the attorney-fees provision of the mortgage agreement was extinguished when the mortgage was released, or, alternatively, that the attorney-fees provision does not apply to a breach of contract and fraud action such as this. We affirm.

On May 26, 1972, the Association loaned $300,000 to John and Anne Petkus. The loan was secured by a mortgage on real estate located in Kane County. As of March 2, 1984, the balance due on the debt was $212,415.81. On that date, William Gust, president of the Association, orally agreed to an $11,000 discount on the payoff amount if the Petkuses would pay the loan off by March 15, 1984. According to Gust, the discount was given on the condition that the payoff be funded by the Petkuses’ own personal funds and not from a sale of the secured property.

On March 15, 1984, the Petkuses advised the Association that they had sold the secured property, and they tendered a check for the discounted balance of the loan, $201,415.81, to the Association in full payment of the loan. The Association advised the Petkuses that the discount had been given on the condition that the building would not be sold, and, since the building had been sold, the discount was no longer available. The mortgage would not be released unless an additional $11,000 was paid. The sale of the secured property could not be completed unless the mortgage was released, so the Petkuses wrote the Association a second check for the $11,000 difference. Thereafter, the Association issued a release of the mortgage and cancelled the note. The Petkuses subsequently stopped payment on the $11,000 check. When the Association’s written demand for payment was not answered, the Association filed a lawsuit against the Petkuses to collect the $11,000.

Meanwhile, the Petkuses had a certificate of deposit account with the Association in the amount of $30,000. WThen the CD matured, the Association exercised its right of setoff and withheld $11,000 from the CD account. It then apparently considered the Petkuses loan paid in full and voluntarily dismissed the lawsuit.

The Petkuses then filed suit against the Association. Their four-count complaint alleged breach of oral contract, breach of certificate-of-deposit contract, violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.), and common-law fraud. The Petkuses alleged that there were no conditions on the oral discount agreement concerning the source of the payoff funds and that the Association had intentionally breached the discount agreement. The Association counterclaimed for attorney fees pursuant to a clause in the “Mortgagor’s Supplemental Agreement” which made the mortgagors responsible for all attorney fees incurred by the Association in connection with any dispute as to the debt.

A bench trial was held, and judgment was entered against plaintiffs on all four counts of their complaint. Judgment was entered in favor of defendant on the counterclaim for attorney fees in the amount of $8,217.20. The Petkuses filed a timely notice of appeal. The appeal is limited to the judgment entered in favor of the Association for attorney fees.

The Petkuses contend that because the Association released the mortgage lien and cancelled the note, or alternatively when the setoff occurred and the debt was fully paid, all contract rights under the mortgage agreement were extinguished including the Association’s right to attorney fees. Alternatively, the Petkuses argue that the attorney-fees provision of the mortgage agreement was intended to apply to attorney fees resulting from a loan default and not to fees resulting from defense of a breach of contract or fraud action such as this.

At the time that the parties entered into the loan agreement, they executed a promissory note, a mortgage, and a document entitled “Mortgagor’s Supplemental Agreement.” Paragraph G of the supplemental agreement provides:

“That the Mortgagee may employ counsel for advice or other legal service at the Mortgagee’s discretion in connection with any dispute as to the debt hereby secured or the lien of this Instrument, or any litigation to which the Mortgagee may be made a party on account of this lien or which may affect the title to the property securing the indebtedness hereby secured or which may affect said debt or lien and any reasonable attorney’s fees so incurred shall be added to and be a part of the debt hereby secured. Any costs and expenses reasonably incurred in the foreclosure of this mortgage and sale of the property securing the same and in connection with any other dispute, or litigation affecting said debt or lien, including reasonably estimated amounts to conclude the transaction, shall be added to and be a part of the debt hereby secured. All such amounts shall be payable by the Mortgagor to the Mortgagee on demand, and if not paid shall be included in any decree or judgment as a part of said mortgage debt and shall include interest at the highest contract rate, or if no such contract rate then at the legal rate.” .

The defendants contend that when the Association released the mortgage, it also released all claims it may have acquired by virtue of the mortgage agreement, including the right to attorney fees. We disagree.

A mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt. (Black’s Law Dictionary 911 (5th ed. 1979).) When a mortgagee has received full satisfaction and payment of all sums due to him from the mortgagor, the mortgagee is required to execute a release of the mortgage. (Ill. Rev. Stat. 1987, ch. 95, par. 52.) The release of a mortgage extinguishes the lien of the mortgage and bars an action for foreclosure. (59 C.J.S. Mortgages §475(c) (1949).) Therefore, when the Association executed the mortgage release, what it released was its interest in or lien on the secured property. The release of the lien did not necessarily mean that the parties’ other rights under the agreement were extinguished also.

As between the immediate parties the mortgage instrument is merely a contract. (Affronti v. Bodine (1987), 155 Ill. App. 3d 755, 758.) Although the contract between the parties created a lien in favor of the Association, it created other rights as well. Specifically, the “Mortgagor’s Supplemental Agreement” provided that attorney fees incurred by the Association “in connection with any dispute as to the debt” would be paid by the Petkuses. There is nothing in the Agreement that limits the Association’s right to fees to a particular period of time pre- or post-satisfaction of the debt. The fact that attorney fees here were incurred subsequent to the release of the lien is irrelevant in terms of whether the Association has a right to recover its costs from the Petkuses.

When the Petkuses were informed that the Association would not release the mortgage until an additional $11,000 was paid, the Petkuses could have sued to enforce their version of the contract and to compel release of the lien. If they were unsuccessful in the suit, however, the Association would certainly have had a right to recover its attorney fees under the terms of the supplemental agreement.

That is essentially what they have done in this litigation. They have sought to enforce their version of the agreement. The only difference is that now the lien has been released. That difference is not material, however. We conclude that, under the terms of the “Mortgagor’s Supplemental Agreement,” the mortgage release did not affect the Association’s right to attorney fees.

Plaintiffs argue, in the alternative, that the attorney-fees provision in the supplemental agreement was intended only to apply to fees incurred in the event of default on the loan, and not to fees incurred in defense of a breach of contract and fraud case such as this. The general rule applicable to the grant of attorney fees in Illinois is that, in the absence of a statute or an agreement, the successful litigant in a civil action may not recover attorney fees from his adversary for the ordinary expenses of litigation. (Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 274.) Provisions in contracts for awards of attorney fees are an exception to the rule. (Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 411-12.) Although contract provisions regarding attorney fees will be strictly construed, those provisions are to be enforced in the discretion of the trial court. (Ferrara v. Collins (1983), 119 Ill. App. 3d 819, 825.) Where attorney fees are authorized by contract, a court may properly award them according to the specific language of the contract. Ferrara, 119 Ill. App. 3d at 825.

The attorney-fees provision in the “Mortgagor’s Supplemental Agreement” states that the mortgagees are to pay any attorney fees that the Association incurs “in connection with any dispute as to the debt.” The language of the provision is very broad. It does not limit recovery of attorney fees to default situations, as plaintiffs suggest. The underlying litigation concerned how much the Petkuses owed the Association at the time that the mortgage was released. It was certainly a “dispute as to the debt.” The Petkuses contended that they owed $201,415.81, and the Association contended that they owed $212,415.81. If, at the time that the Petkuses stopped payment on the $11,000 check, the Association had successfully sued to collect that amount from the Petkuses, it would unquestionably have had a right to attorney fees from the Petkuses because the litigation was an attempt to collect money due under the mortgage agreement. By a fortuitous chance, the Association was able to obtain the $11,000 through a setoff. When the Petkuses sued to get the $11,000 back, the Association incurred fees to retain the money. There is little or no difference in incurring attorney fees to collect a debt or, as here, to retain the satisfaction of a debt in dispute. We determine, therefore, that there was no abuse of discretion in the trial court’s award of attorney fees to defendant.

In conclusion, we note that plaintiffs have not challenged the reasonableness of the amount of the judgment for attorney fees.

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

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE REINHARD

text:
    MARY VOILAND, Plaintiff-Appellee, v. SAMUEL N. WARSAWSKY, Defendant-Appellant.
    Second District
    No. 2—88—0792
    Opinion filed May 3, 1989.

      Michael D. Fabing, of Warsawsky, McNeal, Fabing & Associates, of Chicago, for appellant.
    Joseph R. Voiland, of Law Offices of Joseph R. Voiland, of Aurora, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Samuel N. Warsawsky, appeals an order of the circuit court of Kane County denying his motion for an award of attorney fees pursuant to section 2 — 107 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 107) based on allegations that plaintiff, Mary Voiland, fixed venue in this cause in Kane County in bad faith and without probable cause.

The only issue raised on appeal is whether the circuit court erred in failing to find bad faith and to award attorney fees to defendant.

Plaintiff filed her complaint in the small claims division of the circuit court of Kane County on April 2, 1985, seeking recovery of a $500 security deposit allegedly held by defendant under an apartment lease agreement. The summons served on defendant required his appearance on April 18, 1985. Defendant did not appear, but on plaintiff’s motion, the circuit court continued the matter and granted defendant 28 days within which to file an appearance. On May 16, defendant entered what he denominated a “special and limited appearance” and filed a motion to transfer the cause to the circuit court of Cook County on the basis that venue in Kane County was improper. Defendant’s motion further sought an award of attorney fees and costs incurred in securing the transfer to a proper venue, alleging that plaintiff had fixed venue in bad faith without probable cause. Following a hearing, the circuit court denied defendant’s motion on the ground that it was not timely filed. Defendant filed a petition for leave to appeal to this court pursuant to Supreme Court Rule 306(a)(1)(iv) (107 Ill. 2d R. 306(a)(1)(iv)) which was denied.

The case proceeded to trial on plaintiff’s amended small claims complaint which sought $525. The circuit court entered judgment in favor of plaintiff for $300 and costs. Defendant then appealed, contending that the ruling of the circuit court that his motion to transfer was untimely was erroneous. This court reversed and remanded for consideration of the factual allegations in defendant’s motion. Voiland v. Warsawsky (2d Dist., May 28, 1987), No. 2 — 86—1018 (unpublished order under Supreme Court Rule 23).

Upon remand, following a hearing on defendant’s motion to transfer venue, the circuit court found that venue was properly in Cook County, but that plaintiff had not fixed venue in Kane County in bad faith in violation of section 2 — 107. This section allows the court granting the transfer to order a plaintiff to pay the reasonable expenses, including attorney fees, of the defendant in attending and obtaining a transfer to a proper venue, where the court finds that venue was fixed by the plaintiff in bad faith. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 107.) The circuit court transferred the cause to Cook County and taxed the costs of transfer against plaintiff but denied attorney fees. Defendant appeals the denial of his attorney fees incurred in obtaining the transfer.

Although neither party has raised the issue of our jurisdiction, we have a duty to consider jurisdiction and to dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539, 470 N.E.2d 290.) In connection with this inquiry, we note that defendant has failed to comply with our supreme court rules in that his appellate brief contains no statement of jurisdiction as required by Supreme Court Rule 341(e)(4)(ii) (113 Ill. 2d R. 341(e)(4)(ii)). Defendant has thereby deprived us of the ability to consider whatever theory he may have as to the appealability of the order he now appeals.

Subject to certain exceptions specified in our supreme court rules for appeals from interlocutory orders, which exceptions are inapplicable in this case, this court is without jurisdiction to review judgments or orders which are not final. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480.) A judgment is final if it decides the controversy between the parties on the merits and fixes their rights so that if the judgment is affirmed nothing remains for the trial court to do but to proceed with its execution. In re J.N. (1982), 91 Ill. 2d 122, 127, 435 N.E.2d 473.

The order appealed from, transferring the cause to Cook County and denying attorney fees, is not a final judgment appealable as of right pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301). The order does not terminate the litigation, as the merits of the dispute over plaintiff’s security deposit remain to be resolved in the circuit court of Cook County. While appeal of an order granting or denying a motion for a transfer of venue may be allowed by the appellate court on petition (107 Ill. 2d R. 306(a)(1)(iv)), this appeal is not sought on this basis, nor is an appeal on the attorney fee issue alone authorized. Further, even were we to assume that the award of attorney fees is a separate claim and is appealable pursuant to Supreme Court Rule 304(a), the circuit court did not make the required finding that there was no just reason for delaying enforcement or appeal to make such order appealable. See Schlessinger v. Olsen (1984), 102 Ill. 2d 497, 504, 468 N.E.2d 1158.

For the foregoing reasons, we are without jurisdiction to hear this appeal, and the appeal is dismissed.

Appeal dismissed.

UNVERZAGT, P.J., and LINDBERG, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE JORGENSEN, Defendant-Appellant.
    Second District
    Nos. 2—87—0756, 2—87—0766 cons.
    Opinion filed May 3, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Theodore A. Gottfried, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Steve Jorgensen, along with several codefendants, was indicted by grand jury in case No. 87 — CF—73 with home invasion, armed violence, attempted murder, conspiracy, residential burglary, and aggravated battery, and, in case No. 87 — CF—97, with two counts of armed robbery. Pursuant to a plea agreement, defendant pleaded guilty to home invasion in No. 87 — CF—73 and one count of armed robbery in No. 87 — CF—97, and the other charges were dismissed. He was sentenced to concurrent prison terms of 20 years’ imprisonment for home invasion and 22 years’ imprisonment for armed robbery.

On appeal defendant raises three issues: (1) whether the State violated the plea agreement by presenting evidence going to a dismissed charge; (2) whether the trial court erred in considering in aggravation that defendant’s conduct threatened serious harm and was brutal and heinous, and in considering that on a dismissed charge the victim’s age was over 60; and (3) whether defendant’s sentence was excessive. For the reasons stated below, we affirm.

The following evidence was introduced at the sentencing hearing. On May 3, 1985, defendant, along with August Zilisch and Troy Pencak, decided to rob the Scharlau home. Pencak, in his statement to police, said that all three had weapons, but Jorgensen denied having a weapon. Pencak stated that Jorgensen threw a rock through the bedroom window. Zilisch said in his statement that he threw the rock. Pencak and Zilisch climbed through the window while defendant stood watch. Mr. Scharlau arose from his bed and approached Pencak. A gunshot fired by Pencak hit Scharlau in the index finger and left cheek. Pencak and Zilisch then bound Mrs. Scharlau’s hands and feet and looked around the house for a short time and left.

On March 17, 1986, defendant, Pencak, and Zilisch broke into the Hagopians’ house while no one was home. All three were armed with sawed-off shotguns. Later, at about 8 p.m. when Mrs. Hagopian returned home, the three repeatedly beat her, asking her where she kept the money in the house. She was tied up and put in the basement, where she was covered with a mattress. Defendant kept watch over her in the basement. At about 11 p.m. Mr. Hagopian arrived home. He was hit and tied up and told that his wife would be shot unless he told them where he kept his money. The three left a short while later after taking the money in Mr. Hagopian’s wallet.

In a statement to police, defendant admitted to committing at least 35 other burglaries.

In mitigation, defendant’s wife testified. She stated that she had a two-year-old daughter from a previous relationship and that defendant treated her and her child extremely well. She felt that defendant had changed since he married her. A presentence investigation and a memorandum submitted by a private counseling group were also presented to the court. These documents revealed that defendant was 24, had no prior criminal record, had a stable employment record and strong family support. The presentence report also indicated defendant may have abused cannabis and alcohol during the time he committed the offenses.

Defendant first contends the State violated its plea agreement by presenting evidence at sentencing relating solely to facts underlying a dismissed charge. Under the plea agreement, defendant pleaded guilty to armed robbery against Mrs. Hagopian, 57, and the armed robbery charge against Mr. Hagopian, 64, was dismissed. At sentencing, the prosecutor presented evidence that detailed the armed robbery against Mr. Hagopian. Defendant contends this evidence violated the agreement because it was implicit in the agreement that the dismissed charge would be completely withdrawn from the proceedings. Defendant argues that it would make little sense for defendant to plead guilty to some charges in exchange for dismissal of others if the latter could be freely used by the State against him at sentencing.

It is well settled that where a guilty plea rests to any significant degree on the promise of a prosecutor, so that the promise is a component for the inducement of the plea, the promise must be fulfilled. (People v. Davis (1981), 94 Ill. App. 3d 809, 811; Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499.) In this case, however, the record fails to support defendant’s contention that the plea agreement was based on the State presenting no evidence of the dismissed charges at sentencing. In return for his plea the State made the following promises: (1) defendant would be sentenced to concurrent terms only; (2) the remaining charges, which included armed violence, conspiracy, residential burglary, attempted murder and aggravated battery, would be dismissed; and (3) no charges would be brought for any other burglaries of which the State had knowledge connecting defendant. There is no mention that the State agreed not to present evidence at sentencing concerning the dismissed charges. Furthermore, if this were a case where the defendant was under the belief that the prosecutor would not present evidence concerning the dismissed charges, it would seem that the defendant’s surprise would be reflected in the record by timely objections to the presentation of this evidence. Yet, at no point did defense counsel object to this evidence.

The cases relied on by defendant are easily distinguished. In People v. Cangelosi (1979), 68 Ill. App. 3d 489, the prosecutor promised defendant that his plea of guilty would not be used against him to find him in violation of probation. Subsequently, he was found in violation of probation not by the guilty plea but by the evidence relating to that plea. The appellate court held defendant’s plea was not voluntary. The court found that the subtle distinction between using the guilty plea itself or the evidence going to the plea mattered little to the defendant, who was induced to plead guilty by the obvious understanding that he would not be found in violation of probation. (Cangelosi, 68 Ill. App. 3d at 498.) In People v. Davis (1981), 94 Ill. App. 3d 809, 811, the court found that the prosecutor breached his promise when he promised not to make a sentencing recommendation and then asked the court not to sentence defendant to probation. The case at bar, unlike Cangelosi and Davis, does not present a situation where defendant’s obvious understanding of an agreement was broken. Here, the basis of the agreement, that- the prosecutor would dismiss the other charges and that defendant would not be sentenced to serve consecutive sentences, was performed.

We do not agree with defendant’s contention that it was implicit in the plea agreement that the State would not present evidence of the dismissed charges. Instead, we agree with People v. Glass (1986), 144 Ill. App. 3d 296, 301-02, which held that presenting evidence of a dismissed charge does not violate a plea agreement. In Glass, the court noted and rejected the California Supreme Court case, People v. Harvey (1979), 25 Cal. 3d 754, 602 P.2d 396, 159 Cal. Rptr. 696, which enunciated the theory that evidence at sentencing pertaining to dismissed charges violates a plea bargain. (Glass, 144 Ill. App. 3d at 302.) In rejecting Harvey, the court noted that the vast majority of the jurisdictions to consider the question have ruled contrary to Harvey. More importantly, the court pointed out that the Illinois Supreme Court has held that a sentencing court has wide latitude to conduct a broad inquiry into facts which may tend to mitigate or aggravate the offense and that a court may consider proof of criminal conduct which did not result in a conviction. Glass, 144 Ill. App. 3d at 304; People v. La Pointe (1981), 88 Ill. 2d 482, 498-99.

Next, defendant argues that the trial court improperly considered Mr. Hagopian’s age, 64, as an aggravating factor since the charge for defendant’s conduct against Mr. Hagopian was dismissed. The legislature has provided that a relevant factor in aggravation is whether defendant committed the offense against a person 60 years or older (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(8)). The trial court stated that it believed he could consider Mr. Hagopian’s age as an aggravating factor even though that charge had been dismissed.

Defendant contends that a careful reading of the statutory language shows that the only time the victim’s age may be considered as an aggravating factor is when the defendant has been convicted of a crime against that victim. Defendant points out that the statute specifically states that an aggravating factor is present if “defendant committed the offense against a person 60 years of age or older.” (Emphasis added by defendant.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(8).) Defendant compares this provision with another aggravating factor provision, which states; “the defendant’s conduct caused or threatened serious harm” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(1)), and argues that the use of the word “conduct” in this provision shows that the legislature intended that all of defendant’s conduct would be considered in determining whether there was serious harm, irrespective of the offense charged, whereas the use of the specific word “offense” in the age provision shows that the legislature intended that only the victim of an offense that resulted in conviction could be considered for purposes of this aggravating factor.

Defendant’s reasoning is flawed. First, the plain meaning of the provision does not limit consideration to just the victim of the offense which resulted in conviction. The statute simply does not say this. It states that defendant must have committed the offense against a person 60 years or older. It does not state that it must be an offense which resulted in conviction. It merely has to be an offense. More importantly, it is clear that a court may consider evidence of criminal conduct that did not result in conviction when sentencing a defendant. (La Pointe, 88 Ill. 2d at 498-99.) It seems equally clear that a court may consider as an aggravating factor that this criminal conduct was against a person 60 years of age or older. It would make little sense to find that a court could consider other criminal conduct but must ignore that it was committed against someone over 60 years of age. The supreme court has provided that a sentencing court may make a broad investigation in searching for mitigating and aggravating factors.

“ ‘[T]he court is not confined to the evidence showing guilt, for that issue has been settled by the plea. The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the [crime], and it may search anywhere, within reasonable bounds, for other facts which tend to aggravate or mitigate the offense. ***’ People v. McWilliams, 348 Ill. 333 at 336.” (Emphasis added.) People v. Adkins (1968), 41 Ill. 2d 297, 300-01.

See also La Pointe, 88 Ill. 2d at 495.

Defendant next contends the trial court erred by considering the threat of serious harm as an aggravating factor where such a threat is inherent in the offenses of conviction: armed robbery and home invasion. To the extent an aggravating factor is inherent in an offense, it may not be used to enhance the sentence imposed. (People v. Conover (1981), 84 Ill. 2d 400, 404.) Contrary to defendant’s contention, the threat of serious harm is not inherent in the offense of home invasion charged against defendant. Defendant was charged with home invasion in that he intentionally caused any injury to a person within the dwelling (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a)(2)). Since any injury will suffice for a conviction under this statute, it cannot be said that serious harm is inherent in this offense. A home dweller could suffer an injury by a home invader without being threatened with serious harm. As for the armed robbery conviction, it is evident that the threat of serious harm is inherent in that offense. While the court did remark that defendant’s conduct caused a threat of serious harm, it is doubtful that this was a factor relied upon by the court to increase defendant’s sentence. In discussing defendant’s convictions, the court made the following statement:

“But, their conduct did cause serious physical harm to others. They had to contemplate that their criminal conduct could cause physical harm to another, and certainly would threaten serious physical harm with the very nature of the offenses.”

This statement does not appear to reflect an improper consideration by the trial court. The trial judge did not remark that he was considering these facts in aggravation. It appears the judge was merely stating the nature of the offense committed by defendant. In any case, the judge also noted that defendant’s conduct actually caused serious harm. Serious harm, as opposed to the threat of serious harm, is not inherent in armed robbery or home invasion since either could occur without serious harm resulting. Thus, the trial court properly considered serious harm as an aggravating factor. Given the presence of actual serious harm in this case, we are not persuaded that defendant’s sentence was improperly enhanced by the consideration that defendant’s conduct threatened serious harm.

Defendant also contends the trial court erred when it found defendant’s conduct exhibited heinous and brutal behavior indicative of wanton cruelty. Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections provides that a trial court may consider as a reason to impose an extended-term sentence that an offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2).) Defendant, relying on the fourth district case People v. Killen (1982), 106 Ill. App. 3d 65, argues that since the trial court did not impose an extended sentence it could not consider the brutal and heinous nature of defendant’s conduct. Killen held that the factors listed in section 5 — 5— 3.2(b)(2) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)) may be considered only to impose an extended sentence. (Killen, 106 Ill. App. 3d at 67.) Killen was expressly rejected by the fifth district in People v. Butts (1985), 135 Ill. App. 3d 132, 135, which stated:

“[Njothing in the sentencing code explicitly prohibits the court from assessing the brutal character of an offender’s conduct *** when evaluating a nonextended term. Rather, the statutory scheme permits extended terms only when certain specified aggravating factors are found, one of which is exceptionally heinous behavior. It does not follow that a consideration of brutal or heinous conduct is disallowed when determining an appropriate nonextended term.” (Emphasis in original.) Butts, 135 Ill. App. 3d at 135.

We agree with the reasoning in Butts and point out that it is consistent with the supreme court cases which have reiterated that a sentencing court has wide latitude to consider all the attending circumstances of a criminal act. Furthermore, in People v. Saldivar (1986), 113 Ill. 2d 256, 269, the supreme court stated that sound public policy demands that a defendant’s sentence be varied in accordance with the particular circumstances of the offense committed. The court held that even in the case of manslaughter, where serious harm was implicit in the offense, it was permissible to consider as an aggravating factor the degree of serious harm, in other words the way in which force was employed and the physical manner in which the victim’s death was brought about. (Saldivar, 113 Ill. 2d at 271.) Saldivar is instructive. It teaches that the degree of harm and the manner of harm in any given case is a relevant factor to be considered in sentencing a defendant. In this case the sentencing court properly considered the manner of serious harm perpetrated by defendant as brutal and heinous.

Lastly, defendant asks this court to reduce his sentences, contending his sentences are excessive because the court failed to give appropriate consideration to his rehabilitative potential. A sentence will be reduced by a reviewing court only if the trial court has abused its discretion and the sentence constitutes a substantial departure from the law. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) When the sentence imposed is within the limits established by the legislature, it will not be modified merely because a reviewing court might have balanced the appropriate factors differently and imposed a different sentence. People v. Dunnegan (1987), 151 Ill. App. 3d 973, 985.

Defendant’s concurrent sentences of 22 years’ imprisonment for armed robbery and 20 years’ incarceration for home invasion do not constitute an abuse of discretion by the trial court. Both of these offenses are Class X offenses which provide for a minimum sentence of six years’ imprisonment and a maximum term of 30 years’ imprisonment. The trial court found, however, that the brutal and heinous character of the crimes in this case allowed the court to impose extended prison sentences which require a term of not less than 30 years and no more than 60 years for Class X felonies (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(2)). The evidence supports this finding. The court noted that the defendant’s conduct terrorized two married couples, causing them great horror. Defendants broke into the Hagopians’ home with sawed-off shotguns and repeatedly beat Mrs. Hagopian. They tied her up and threatened to kill her. Then when Mr. Hagopian came home, they beat him and threatened to kill his wife. This terror lasted three hours. As for the Scharlauses, defendants Pencak and Zilisch crashed through their bedroom window at night while the two were in bed. Pencak shot Mr. Scharlau when Scharlau approached him. Then they tied up Mrs. Scharlau. Defendant stood watch outside the window. Along with this evidence there was also testimony from a police officer that defendant admitted to committing at least 35 burglaries in a six-month period.

Pencak and Zilisch were sentenced at the same time as defendant and received extended terms. Pencak received prison terms of 45 years for armed robbery and 30 years for armed violence. Zilisch received prison terms of 37 years for armed robbery and 20 years for armed violence. In defendant’s case the trial court found an extended term would not be appropriate, noting defendant’s crime-free record, his lack of learning skills, and stating that there were “less aggravating factors.” Defendant argues that the following mitigating factors require still a lesser sentence: defendant’s (1) lack of criminal record; (2) stable work history and recommendations from co-workers; (3) family support; (4) remorse and a period of law-abiding behavior following offenses; and (5) youth — 24; (6) less culpable role in offenses. We disagree. The trial court’s decision to not impose an extended term against defendant establishes that the court carefully considered the mitigating circumstances of defendant’s case. We are satisfied that the trial court gave proper consideration to these mitigating factors, and we find that the court did not abuse its discretion in sentencing defendant to 22 years for armed robbery and 20 years for home invasion.

The judgment of the trial court is affirmed.

Affirmed.

LINDBERG and McLAREN, JJ., concur.