author: JUSTICE WOODWARD JUSTICE McLAREN, JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN PEDERSEN, Defendant-Appellant.
    Second District
    No. 2—88—0379
    Opinion filed March 7, 1990.

      McLAREN, J., concurring.
    REINHARD, J., dissenting.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendant, Norman Pedersen, was found guilty of the offense of aggravated battery and was sentenced to a term of 30 months’ probation, a condition of which defendant was to serve 180 days in the Lake County jail. Defendant appeals, raising the following issues: whether the trial court erred by failing to instruct the jury on the offense of resisting arrest; and whether the trial court erred in failing to instruct the jury on self-defense.

On December 26, 1987, Officer Kevin Tracz, of the Village of Bannockburn police department, made a traffic stop of a Subaru for speeding. The driver of the Subaru was Linda Murry, and the passenger in the Subaru was defendant. When Ms. Murry was asked to produce her driver’s license, she explained that she was driving on a ticket. After she produced the ticket, at Officer Tracz’s request, she exited the Subaru, and Tracz and she went to the rear of the Subaru, where Tracz attempted to explain the process of posting bond. The defendant also exited the Subaru and joined Ms. Murry and Officer Tracz at the rear of the Subaru. At this point, they were joined by Officer Bruce Dayno of the Highland Park police department.

Officer Tracz testified that while he was trying to talk to Ms. Murry, the defendant began to yell at him and call him names. Since Tracz was still attempting to issue the traffic ticket to Ms. Murry, he let Officer Dayno talk to the defendant. When defendant continued to interrupt Tracz, Officer Dayno warned the defendant not to interfere, at which point defendant stopped. Since in Tracz’s opinion, an I-Bond (personal recognizance bond) was going to be necessary, he attempted to explain to Ms. Murry that she could follow him back to the station, and he would issue her an I-bond. Defendant again began yelling and began to approach Tracz, when Officer Dayno informed defendant that he was under arrest.

As Officer Dayno started to turn the defendant around, defendant swung back around and pushed the officer away from him. Both Dayno and the defendant landed on the ground. The defendant was on his stomach with his hands under his chest. Both officers tried to get defendant’s hands from underneath him to handcuff him. Defendant began to kick so Officer Tracz held defendant’s legs down while Officer Dayno sat on his upper body. Tracz was then able to radio for assistance.

According to Officer Cameron, of the Highland Park police department, when he arrived on the scene in response to Tracz’s call for assistance, he observed Dayno sitting on top of the defendant, holding his hands to the ground. Cameron proceeded to place one handcuff on defendant’s right hand while helping Dayno roll him over and handcuff his left hand. Both Cameron and Dayno grabbed the defendant underneath his arms and dragged him to the squad car. As Officer Dayno pushed defendant into the backseat, defendant was kicking Dayno. After the door to the squad car was closed, defendant continued kicking the door. Officer Cameron noticed a small cut on Officer Dayno’s finger which Dayno stated had occurred when the defendant bit him. Cameron did not see the defendant bite Dayno, nor did he note the injury in his report.

Officer Schwarz, also of the Highland Park police department, responded to Tracz’s call for backup. When he arrived, he observed the defendant kicking and the other officers trying to put defendant in the squad car. The defendant called Officer Dayno obscene names and told him that “if he had the handcuffs off he would take him one on the outside.”

Officer Dayno testified that after he informed defendant that he was under arrest, he told the defendant to turn around and place his hands on the vehicle he had just exited. The defendant began to argue with him and question him as to why he was being arrested. Dayno started to turn the defendant around so that he could search him when defendant spun around and punched him with both hands in the chest. Dayno grabbed defendant’s arm, and they both fell to the ground. Lying on his stomach, defendant locked his hands together and refused to be handcuffed. Both Dayno and Tracz attempted to pull his arm from beneath him so that he could be handcuffed. Since defendant refused to unlock his hands, Tracz went over and sat on his legs. As Dayno continued to try to pull defendant’s hand out, Dayno’s hand was underneath defendant’s chin, and as he tried to pull it away, defendant put his teeth on Dayno’s left index finger and bit Dayno, causing the finger to bleed. According to Dayno, during the struggle, Ms. Murry kept yelling to the defendant to stop struggling.

As Dayno and Officer Cameron brought the defendant over to the squad car, he continued to struggle. Since defendant was kicking and struggling, he had to be pushed into the squad car. As Dayno opened up the door to the squad car, the defendant turned and kneed Dayno in the groin. Defendant continued to kick while being placed in the squad car. He was then transported to the Highland Park police department by Officers Dayno and Schwarz. Officer Dayno stated that he had the bite on his finger treated at Highland Park Hospital.

Linda Pedersen (formerly Linda Murry), the wife of the defendant, testified that, while she was speaking to Officer Tracz, Officer Dayno arrived and told defendant to step out of the vehicle, whereupon all four of them were standing at the rear of the vehicle. Defendant proceeded to join the discussion concerning the ticket. According to the witness, defendant’s manner was calm. Officer Dayno told the defendant to stay out of the conversation, to which defendant responded that he was only trying to find out what could be done about the ticket. Defendant then placed his arm on Dayno and told him that everything was okay and that he would stay out of it. Dayno responded, “Don’t touch me. Get your hands off me,” at which point defendant removed his arm.

The defendant continued to talk to Officer Tracz about the ticket, and Dayno told him to be quiet. Defendant told him that he just did not want his fiancee (the witness) to go to jail. According to the witness, Dayno became upset and informed defendant that if he was not quiet he would be placed under arrest. Defendant continued to discuss the ticket; Dayno told him to step away, to which defendant responded, “No,” and continued to talk. Dayno then informed defendant that he was under arrest. According to the witness, Dayno then pushed the defendant against the back of the Subaru and requested that defendant give him his hands, to which the defendant replied, “[G]et them.” Dayno then threw defendant to the ground, handcuffed one hand, kneed the defendant in the back, and then turned him around to handcuff the other hand. While Dayno was straddling him, he proceeded to choke the defendant. The witness recalled saying “stop it” but stated it was directed to Officer Dayno, not to defendant. She did not see defendant bite Dayno.

The witness further testified that defendant was carried to the squad car, and Officer Dayno stood the defendant up and defendant got into the squad car. Defendant did not struggle or kick as he got into the squad car. The witness also identified a photograph of the defendant taken the day after he was arrested showing thumb marks on the defendant’s neck and bruising on his forehead.

The jury found the defendant guilty of aggravated battery, and the trial court imposed the sentence indicated above. This appeal followed.

The defendant contends, first, that it was reversible error for the trial court to refuse defendant’s tendered instruction on the offense of resisting arrest. Defendant argues that resisting arrest is a lesser included offense of aggravated battery and, therefore, he was entitled to have the jury instructed as to that offense.

Defendant was charged with the offense of aggravated battery, which is defined as follows:

“A person who, in committing a battery, commits aggravated battery if he either: * * *
Knows the individual harmed to be a peace officer, or a person summoned and directed by him, or a correctional institution employee, while such officer or employee is engaged in the execution of any of his official duties including arrest or attempted arrest.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(6).)

The offense of resisting arrest is defined as follows:

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” Ill. Rev. Stat. 1987, ch. 38, par. 31—1.

The State tendered an instruction which was based on Illinois Pattern Jury Instructions, Criminal, No. 11.10 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 11.10), which was given by the trial court and which required the State to prove the following elements:

“First: That the defendant knowingly or intentionally without legal justification caused bodily harm to Brian [sic] Dayno; and
Second: That the defendant knew Brian [sic] Dayno to be a peace officer engaged in the performance of his official duties.”

The defendant tendered an instruction on resisting or obstructing a peace officer based on IPI Criminal 2d No. 22.10, which was refused by the trial court. The refused instruction required proof:

“First: That Bruce Dayno was a peace officer; and Second: That the defendant knew Bruce Dayno was a peace officer; and
Third: That the defendant knowingly resisted or obstructed the performance by Bruce Dayno of an authorized act within his official capacity.”

Both the State and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when the evidence supports such theories. (People v. Lyda (1989), 190 Ill. App. 3d 540, 544.) A defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which the defense is based are inconsistent with a defendant’s own testimony. (Lyda, 190 Ill. App. 3d at 544.) Very slight evidence upon a given theory of a case will justify the giving of an instruction. Lyda, 190 Ill. App. 3d at 544.

Early cases looked to an abstract statutory definition of the crimes involved, finding a crime to be a lesser included offense only if the greater offense included every element of the alleged lesser included offense. (People v. Krueger (1988), 176 Ill. App. 3d 625, 628.) In more recent cases, our supreme court has gone beyond abstract statutory definitions and looked to both the language used in the charging instruments and the evidence presented at trial. (Krueger, 176 Ill. App. 3d at 628.) In People v. Dace (1984), 104 Ill. 2d 96, the court, while refusing to adopt the “inherent relationship test,” determined that where the defendant was charged with residential burglary with the intent to commit theft, and the offense of theft was ' proved by the evidence, he was entitled to have the jury instructed on the offense of theft. In People v. Bryant (1986), 113 Ill. 2d 497, the court pointed out:

“The principle is well established that a defendant may be entitled to have the jury instructed on a less serious offense that is included in the one he is charged with. [Citation.] The reason for this is clear: an instruction on a lesser offense provides an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.” 113 Ill. 2d at 502.

The Bryant court then pointed out that what constituted a lesser included offense was not always clear. Bryant was charged with and found guilty of attempted burglary. He tendered an instruction at trial on criminal damage to property which was refused. The State argued that Bryant was not entitled to an instruction on the offense of criminal* damage to property because the indictment for attempted burglary did not allege the mental state of knowledge. However, the court agreed with the defendant that the form of burglary at issue required a knowing .entry and that, therefore, the indictment could be read as implicitly including the mental state, especially since an inchoate offense requires specific intent. (Bryant, 113 Ill. 2d at 505-06.) However, the court then went on to state:

“There are several notable limits on the operation of the included-offense doctrine, however. For example, because a defendant’s instruction on a lesser offense is appropriate ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater’ [citation], the evidence presented in a particular case might rationally preclude the use of an instruction on a lesser offense. [Citations.] Moreover, an included-offense instruction ‘ “is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” ’ [Citation.] Thus, instructions on less serious offenses are not required in every case.” Bryant, 113 Ill. 2d at 507.

In People v. Krueger (1988), 176 Ill. App. 3d 625, this court, relying on People v. Bryant and People v. Dace, concluded that where the defendant was charged with attempted murder, it was reversible error to refuse to instruct the jury on the offense of aggravated assault when the evidence at trial could support a conviction of aggravated assault.

Since the decision in People v. Krueger, our supreme court issued its opinion in People v. Schmidt (1988), 126 Ill. 2d 179. In that case, the defendant was charged only with residential burglary. At the defendant’s request, the jury was instruqted as to the offense of theft. (People v. Schmidt (1987), 161 Ill. App. 3d 278, 279.) The jury found him guilty of both residential burglary and theft.

The appellate court reversed defendant’s convictions and remanded for a new trial on the basis that the verdicts for residential burglary and theft were inconsistent. The appellate court noted that theft was not a lesser included offense of burglary, citing People v. Dace. The court admitted confusion in that while Dace states that theft is not a lesser included offense of burglary and rejected the “inherent relationship test,” it nonetheless held that it was error to refuse to give the theft instruction. The appellate court in Schmidt concluded that the rationale for requiring the theft instruction “is based on the case law holding an accused is entitled to instructions on his theory of the case, and a refusal to give such instruction is error.” Schmidt, 161 Ill. App. 3d at 280.

On appeal by the State, our supreme court in Schmidt affirmed defendant’s conviction of residential burglary but agreed that the conviction of theft was improper and vacated it. The court held that, where an accused is charged with a single offense, he cannot be found guilty of an offense not charged unless it is a lesser included offense. The supreme court did not refer to its opinion in Bryant; as to People v. Dace, the court stated:

“[W]e are not unaware of People v. Dace (1984), 104 Ill. 2d 96. We would observe that in Dace the fundamental question just stated was not presented to or considered by the court.” Schmidt, 126 Ill. 2d at 185.

The State contends here that resisting arrest cannot be a lesser included offense of aggravated battery because aggravated battery does not include the element of knowledge that the act will resist or obstruct the officer, an element of the offense of resisting arrest. The State further argues that the information in this case did not incorporate any reference to knowing resistance or obstruction and thus did not incorporate those elements into the offense.

The information in this case, charging the defendant with aggravated battery, stated in pertinent part as follows:

“The said defendant in committing a battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12 — 3, without legal justification knowingly caused bodily harm to Bruce Dayno, in that he kneed Bruce Dayno in the groin and bit Bruce Dayno on the finger knowing Bruce Dayno to be a peace officer engaged in the execution of his official duties.”

Defendant, here, was charged only with aggravated battery, not with resisting arrest. Under People v. Schmidt (1988), 126 Ill. 2d 179, he could not be found guilty of resisting arrest, even if the trial court had given his tendered instruction, unless resisting arrest is a lesser included offense of aggravated battery. The supreme court acknowledged in People v. Bryant that the statutory definitions of a lesser included offense (Ill. Rev. Stat. 1985, ch. 38, par. 2—9) “do not explain ‘which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.’ ” (Bryant, 113 Ill. 2d at 503, quoting People v. Mays (1982), 91 Ill. 2d 251, 252.) The Bryant court looked to both the language used in the charging instrument and the evidence presented at trial. We note with interest that Bryant was not cited or distinguished in People v. Schmidt (1988), 126 Ill. 2d 179.

The failure of the charging instrument to allege expressly all the elements of the lesser offense is not fatal where, to the extent that the lesser offense must have a broad foundation in the instrument charging the greater, the charging instrument sets out the main outline of the lesser offense for which an instruction is sought. (Bryant, 113 Ill. 2d at 505; People v. Krueger (1988), 176 Ill. App. 3d 625, 629.) In the case before us, the information charges that the defendant “knowingly caused bodily harm” to Officer Dayno. While the information does not state in precise language that defendant “knowingly” committed an act that would “resist or obstruct the police officer,” it is implicit in the acts defendant is accused of, namely, knowingly kneeing and biting Officer Dayno, that Officer Dayno would be “obstructed” from carrying out his duties as a police officer. Therefore, we agree with the defendant that under People v. Bryant resisting arrest is a lesser included offense of aggravated battery. The defendant was entitled to an instruction on the lesser included offense of resisting a police officer, and, therefore, the judgment must be reversed and the cause remanded for a new trial. See People v. Krueger (1988), 176 Ill. App. 3d 625, 630.

Defendant also contends that the trial court erred when it failed to instruct the jury as to under what circumstances a person is justified in defending himself against excessive force used by a police officer in effecting an arrest. The defendant admits that he did not tender an instruction to the trial court on this issue, nor did he object to the giving of the following instructions which were tendered by the State:

“A peace officer need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of force which he reasonably believes to be necessary to effect the arrest or to defend himself from bodily harm while making the arrest.” (See IPI Criminal 2d No. 24—25.12.)

And:

“A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest is in fact unlawful.” (See IPI Criminal 2d No. 24—25.20.)

Rather, the defendant contends that because the instructions given in this case failed to define legal justification, they were fundamentally inadequate, and the trial court should have sua sponte instructed the jury on legal justification. Defendant maintains that failure to do so resulted in plain error (107 Ill. 2d R. 615(a)), which defeats any claim that defendant waived this allegation of error.

As a general rule, the failure to object at trial to an asserted error in jury instructions waives the issue on appeal. However, when the issue of self-defense has been raised, the failure to tender the instruction does not waive the issue for appeal unless the- instructions which were given sufficiently apprised the jury of the State’s burden of proof. People v. Bailey (1982), 108 Ill. App. 3d 392, 398.

A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. People v. Carlson (1980), 79 Ill. 2d 564, 576.

We have previously determined that this cause must be remanded for a new trial. No instruction on defining legal justification was tendered to the trial court at the original trial of this cause. Whether such an instruction is warranted can only be determined in light of the evidence introduced at defendant’s new trial. Therefore, we decline to address this issue.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

JUSTICE McLAREN,

concurring.

I wish to expound upon several matters which are discussed in the opinion and the dissent. The opinions of my colleagues continue to use the term “lesser included offense” consistent with prior appellate and supreme court opinions. I consider this term to be ambiguous and confusing. Originally, the term meant what it said, i.e., a lesser and included offense, “lesser” in the sense that the offense was less heinous and was punished accordingly, “included” in the sense that the elements of the “included” offense were included within the elements of the “greater” offense. Through judicial evolution, in cases like this one, the term “lesser included offense” has come to mean a “lesser-wonincluded offense.” In other cases, the term has retained its original meaning, i.e., an actual “lesser included offense.”

This evolution has come about because the law allows a defendant to present his alternative theory of guilt if there is evidence to support such a theory. The alternative theory may be either a lesser included offense or a lesser nonincluded offense, and possibly both if more than one theory is presented. I suggest that in this particular area of the law the term “lesser alternative offense” should be adopted so that the problems described by Justice Reinhard’s dissent can be minimized.

I believe that by adopting this terminology one can reconcile apparent contradictions in People v. Bryant (1986), 113 Ill. 2d 497, and People v. Schmidt (1988), 126 Ill. 2d 179.

I believe Schmidt stands for the proposition that, when a defendant presents a lesser alternative offense, he cannot be convicted of both the greater and the lesser alternative offense because the defendant was not charged, by the State with the lesser offense. This is consistent with the principle that a defendant cannot be convicted of both a greater and a lesser included offense regardless of who presented it. The rationale is based upon the belief that the jury should be given the choice of alternative convictions not coincidental convictions.

To reiterate — there are three terms:

1. Lesser included offense (e.g., Texan)
2. Lesser nonincluded offense (e.g., Iowan), and
3. Lesser alternative offense (e.g., American).

The first two terms grammatically are mutually exclusive and incompatible regardless of their usage in prior opinions. The first and third terms, and the second and third terms, grammatically and legally, are mutually inclusive and compatible unless stated to the contrary in future opinions.

In conclusion, hopefully my comments will make clear the ambiguous and not make ambiguous the clear. At this juncture, it is premature to presume so.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s holding that under People v. Bryant (1986), 113 Ill. 2d 497, “resisting arrest is a lesser included offense of aggravated battery” and that defendant was therefore entitled to an instruction he requested on the offense of resisting arrest. See 195 Ill. App. 3d at 130.

In Bryant, our supreme court, relying on its decision in People v. Dace (1984), 104 Ill. 2d 96, held that an instruction tendered by the defendant therein for the less serious offense of criminal damage to property should have been given by the trial judge where the indictment charged the defendant with attempted burglary, specifically alleging defendant pulled away a screen and broke a window. (Bryant, 113 Ill. 2d at 505-07.) The court reasoned that the lesser offense must have a broad foundation in the instrument charging the greater offense, but that the charging instrument need not expressly allege all the elements of the lesser offense. 113 Ill. 2d at 505.

I have found no Illinois case addressing the issue of whether, applying the Bryant rationale, the offense of resisting or obstructing a peace officer is a lesser offense of aggravated battery alleged, as here, to be committed by causing bodily harm in a certain way to one known to be a peace officer engaged in the execution of his official duties. It is also clear that looking at the offense of aggravated battery as charged, resisting or obstructing a peace officer is not a lesser included offense, as the offense charged does not include every element of the lesser offense, plus an additional element or elements. See People v. Stroner (1983), 96 Ill. 2d 204, 209.

In Dace, the lesser offense, theft, was stated in the charging instrument and, together with evidence introduced at trial, was sufficient to warrant an instruction on the lesser offense of theft, where residential burglary only had been charged. (Dace, 104 Ill. 2d at 102-03.) In Bryant, the property damage to the building, which was the foundation for the lesser charge of criminal damage to property, was set out in the instrument charging the greater offense of attempted burglary and was consistent with the evidence at trial, which could arguably support a guilty verdict on the lesser offense. Bryant, 113 Ill. 2d at 505.

In the case at bar, however, the offense of resisting or obstructing a peace officer does not have a broad foundation in the instant information, which charges defendant with causing “bodily harm to Bruce Dayno, in that he kneed Bruce Dayno in the groin and bit Bruce Dayno on the finger.” The act of kneeing and biting Officer Dayno would not necessarily constitute the offense of resisting or obstructing a peace officer. Unlike in Bryant, where the charging instrument alleged damage to a screen and a window which would necessarily provide the foundation for a charge of criminal damage to property, the allegations of kneeing and biting Dayno do not alone necessarily provide a foundation for a charge of resisting or obstructing a peace officer under the circumstances here.

Furthermore, the instruction tendered by defendant only required proof, inter alia, that defendant “knowingly resisted or obstructed the performance by Bruce Dayno of an authorized act within his official capacity” and did not specify the acts of kneeing and biting as alleged in the information. Thus, the instruction requested by defendant does not specify the very, conduct relied upon by him in arguing that the information sets forth the lesser offense of resisting or obstructing a peace officer. Such a generalized instruction, as tendered here, would only serve to confuse the jury and unnecessarily inject issues into the case. (See People v. Taylor (1983), 112 Ill. App. 3d 3, 5.) Further, it is defendant’s duty to tender a proper instruction on a particular issue at trial. (People v. Smith (1978), 71 Ill. 2d 95, 104.) Thus, the specific acts specified in the aggravated battery information were not the foundation for the tendered instruction for the offense of resisting or obstructing a peace officer. Accordingly, under the circumstances, I conclude that the trial judge properly refused the tendered instruction for resisting or obstructing a peace officer.

One final note. The State argues that the Dace/Bryant rationale has been discredited in People v. Schmidt (1988), 126 Ill. 2d 179, which held that “where an accused is charged with a single offense he cannot be found guilty of an offense not charged unless it is a lesser included offense.” (126 Ill. 2d at 184-85.) The court further observed that “in Dace the fundamental question just stated was not presented to or considered by the court.” (126 Ill. 2d at 185.) Defendant responds to this argument by conceding that the Schmidt opinion calls into question the Dace and Bryant holdings and that the cases cannot be reconciled.

I, too, am uncertain whether the Dace/Bryant rationale still has vitality where the offense is not a lesser included offense under the generally accepted analysis set forth in People v. Stroner (1983), 96 Ill. 2d 204, 209, which focuses upon the crime charged to determine if all of the elements of the lesser crime are included in the greater crime. Thus, if as the State argues, the Dace/Bryant approach is no longer viable and Schmidt controls, then defendant was not entitled to an instruction on resisting or obstructing a peace officer because he was not charged with that offense and it is not a lesser included offense of aggravated battery. Given the difficulties the trial and appellate courts are having applying the Dace/Bryant approach, the decision in Schmidt should control.

For the foregoing reasons, I would find no error on this issue. The second instructional issue raised by defendant was not raised at trial and is waived (People v. Berry (1984), 99 Ill. 2d 499, 503); nor is it recognizable as grave error pursuant to Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c)). Accordingly, I would affirm the judgment below.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORY A. SIEFKE, Defendant-Appellant.
    Second District
    No. 2—88—0624
    Opinion filed March 16, 1990.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State's Attorneys Appellate Prosecutor’s Office, and Eleesha Pastor O’Neill, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Cory Siefke, was charged by indictment with aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—2(a)(5)), aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10—3.1), and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—4(b)(1)). Following a jury trial, defendant was found guilty of kidnapping, aggravated unlawful restraint and aggravated battery. Defendant was sentenced, to 10 years’ imprisonment for aggravated unlawful restraint and five years’ imprisonment for aggravated battery, both to run concurrently. No sentence was imposed on the kidnapping conviction. On appeal, defendant contends that he is entitled to a new trial due to: (1) the State’s violation of discovery rules; and (2) an improper closing argument. Defendant also contends that the kidnapping conviction must be vacated. We affirm in part and vacate in part.

The following facts were adduced at trial. The complainant, Ellen Hemmerich, testified that she was jogging on the prairie path in West Chicago, Illinois, around 5 p.m. on July 9, 1987, when she passed by a person later identified as defendant. Hemmerich described defendant as wearing “cutoffs,” with a pair of blue pants draped over an arm and carrying a brown quart bottle. Defendant was saying “I love this county; you can do anything and no one will bother you” as Hemmerich passed him. Hemmerich continued jogging for approximately eight minutes, stopped, turned around, and began to jog back toward her house. Upon her return, Hemmerich again encountered defendant on the prairie path. Hemmerich testified that defendant turned around and “whipped up this knife,” when she was approximately 10 to 15 feet away from him. Hemmerich stated that she stopped and defendant said “don’t scream, and I won’t hurt you.”

Hemmerich further testified that she was carrying a can of dog repellent during her jog, which she used to try to hold off defendant. Hemmerich sprayed the repellent at defendant, hitting him in the chest. Defendant continued to move toward Hemmerich, and she again sprayed the repellent at defendant, this time hitting him in the face. Defendant was able to grab Hemmerich and a struggle ensued. During the course of the struggle, Hemmerich dropped the can of repellent and was cut on her arm with the knife. Hemmerich stated that she was able to escape and began to run away from defendant. Defendant followed her and eventually caught up with her and pulled her down to the ground. Another struggle ensued, with defendant choking Hemmerich and pulling her toward the bushes. During the struggle, defendant asked Hemmerich, “[Wjould you do this for your daddy?”

Hemmerich stated that defendant finally let her go, and she ran to the nearest house to call the police and paramedics. Hemmerich further stated that she was able to clean the dirt off her legs and had the cut on her arm treated.

Joseph Gomilar testified that he lived in a house approximately 300 to 400 feet south of the prairie path. At approximately 5:30 p.m. on July 9, 1987, Gomilar was called into his house and found his wife and Hemmerich seated at the kitchen table. Gomilar stated that Hemmerich was in “shock” and he contacted the police.

John Luka testified that he was riding his bicycle on the prairie path around 5:30 p.m. on July 9, 1987, when he saw a woman running toward him. Luka stated that the woman had dirt on her legs and “looked like she fell or something.” Luka and the woman exchanged “hi’s” and Luka continued riding down the prairie path. Luka stated that he observed a flannel shirt, a quart beer bottle, sunglasses, and a small canister located on the edge of the path approximately 300 feet from where he encountered the woman. Luka did not see a knife anywhere in the area. Luka continued down the path for approximately 200 feet and saw a man weaving back and forth. The man called out for help and said “some broad maced me.” Luka stated that he turned around and rode back to look for the woman he had earlier seen. He did not find the woman, turned around again and rode back towards the man again. Luka stated that the man seemed more at ease and was now smoking a cigarette. Luka later identified the woman as Hemmerich and the man as defendant.

Detective William Selby of the Du Page County sheriff's department testified that he arrived at the prairie path on July 9, 1987, at approximately 7 p.m. Detective Selby took photographs of the prairie path and noted the location of a shirt, a beer bottle, and a pair of pants. In addition, Detective Selby was unsuccessful in his search for a knife or a canister of dog repellent and did not recover any sunglasses from the area.

Sergeant William Rizer of the Winfield police department testified that he was called to the emergency room at Central Du Page Hospital at approximately 6:45 p.m. on July 9, 1987, to question a person who “might have been involved in an attack on the prairie path.” Sergeant Rizer stated that the person, later identified as defendant, had watery eyes and was being treated for the “mace.”

Defendant testified at trial that he did not have to work on July 9, 1987, and went to West Chicago to visit a friend. Defendant stated that he purchased a quart of beer and a pack of cigarettes and began walking down the prairie path. Defendant saw a woman, later identified as Ellen Hemmerich, jog past him as he continued to walk down the path. Shortly thereafter, defendant heard someone running behind him and turned around to find Hemmerich standing about three feet away from him. Defendant stated that she had a “weird look on her face” and he told her not to scream, that he wouldn’t hurt her. Hemmerich then sprayed him in the chest and face with a “yellow liquid,” and defendant grabbed her arm. Hemmerich ran away and defendant chased her. He caught up with her and pulled her down to the ground, but released her after she told him that he was hurting her.

Defendant further testified that he went to Central Du Page Hospital and had his eyes treated in the emergency room. He told the nurse to contact the police, and he was later placed under arrest. He denied possessing or using a knife on the day in question and told the police to “find the knife or let me go.”

On cross-examination, defendant denied telling the police officers that he kept a folding knife in his pants. However, he did admit that he was in the habit of carrying a knife for use at work, but kept the knife at work and did not take it home.

Robin Rehm, defendant’s fiancee, testified that she was engaged to defendant in July 1987 and had lived with him for nearly one year. Rehm stated that defendant bought a knife to use at work but lost it in March 1987. Rehm further stated that defendant did not carry a knife with him thereafter, although she did not know whether he had a knife with him on July 9, 1987.

Deputy Joseph Groh of the Du Page County sheriff’s department, called as a rebuttal witness, testified that he had two conversations with defendant on July 9, 1987. During the first conversation, defendant told Deputy Groh that he fell into the woman but did not chase after her. During the second conversation, approximately two hours after the first, defendant stated that he kept a folding knife and $50 in a pocket in his pants, which he was carrying over his shoulder. Deputy Groh stated that defendant, in both conversations, denied using the knife to attack the woman, but instead asserted that the woman sprayed mace at him for no apparent reason.

Following closing arguments, defendant’s motion for a mistrial based on an improper closing argument was denied. The jury returned verdicts of guilty on the kidnapping, aggravated unlawful restraint, and aggravated battery charges. The court entered judgment on the verdicts. Defendant filed a timely notice of appeal.

Defendant first contends on appeal that the State violated its discovery obligations by failing to tender to defense counsel an alleged statement that defendant made to the complainant. Defendant argues that the violation prejudiced his defense and deprived him of a fair trial.

Illinois Supreme Court Rule 412 (107 Ill. 2d R. 412) sets forth the scope of the State’s obligation to disclose material and information to an accused. With respect to statements of an accused, the rule provides that the State shall disclose to defense counsel

“any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” (107 Ill. 2d R. 412(a)(ii).)

The purpose of the rule is to protect the defendant from surprise and inadequate preparation at trial by allowing defense counsel to investigate the circumstances surrounding any statements. (People v. Davis (1984), 130 Ill. App. 3d 41, 49.) Compliance with the rule is mandatory and requires the State to disclose all statements known to it. Davis, 130 Ill. App. 3d at 49; People v. Winfield (1983), 113 Ill. App. 3d 818, 836.

In the present case, the prosecutor, in his opening statement, stated: “She [the victim] will even tell you that at one time Siefke [defendant] turned to her and said, would you do this for your daddy?” Defense counsel then objected, noting that the statement “would you do this for your daddy” was never disclosed during pretrial discovery. The trial court allowed the prosecutor to finish his opening statement, and following defense counsel’s opening statement, the court heard arguments on the objection. Defense counsel stated:

“During the opening statement Mr. Telander told the jury that Ellen Hemmerich would tell them on the witness stand that Cory Siefke made a statement to her to the effect of, would you do this for your daddy, or words in that nature.
Your Honor, I made a motion for discovery — pre-trial discovery a long time ago in this case.
Mr. Telander gave me what he told me were a full set of all police reports and grand jury transcripts.
He indicated on a written answer to discovery that all statements of my client were contained within those reports and transcripts.
* * *
I have always felt that I was entitled to any statements of the defendant, occurrence statements, statements he made-made during the crime or later to law enforcement people.
They are always discoverable.
I never got any such statement in this case, and I feel prejudiced by it.”

The prosecutor then responded: “The court has tried many, many cases, and the Court knows that statements made that are part of the crime and within the crime are not the type of statements that the Supreme Court Rule is talking about.” The following discussion then occurred:

“THE COURT: First of all, counsel, this is the first time you are apprised of this statement made by the defendant?
MR. LINN [defense counsel]: Yes.
* * *
THE COURT: This was not reduced to a police report?
MR. TELANDER [prosecutor]: Right.
* * *
THE COURT: *** Is it in writing or anywhere?
MR. TELANDER: It’s not in writing.
THE COURT: So at best, I can indicate to you that certainly cannot be disclosed.
*** [-pjhere js n0 obligation at this time to have a discovery of something which is not reduced to writing or in writing.
MR. LINN: Judge, I’m not belaboring it. It just says, the substance of any oral statements.
THE COURT: Yes; oral statement. This would be an oral statement of the complaining witness.
The defendant may have said this to the complaining witness but not to a law enforcer.
MR. LINN: Right.
THE COURT: Okay. The fact that he didn’t — the fact that the police officer did not have this in his statement, obviously that’s a matter of impeachment or omission but other than that, it’s not a lack of discovery.
MR. LINN: Okay.
Just for purposes of the record only, the remedy I’m seeking is a mistrial with prejudice in this case because of that.
THE COURT: Motion made and denied.”

We agree with defendant’s contention that his alleged oral statement to the victim was discoverable under Supreme Court Rule 412. The State has a duty to disclose the substance of all statements made by defendant, even if the statements were not actually reduced to writing. (People v. DeBord (1978), 61 Ill. App. 3d 239, 241.) This rule also includes statements which cannot be appropriately characterized as an admission or a confession. (People v. Ellis (1982), 107 Ill. App. 3d 603, 615; People v. Romo (1980), 85 Ill. App. 3d 886, 896.) Were this not the case, the State would be able to effectively avoid this discovery rule by failing to reduce to writing otherwise discoverable information. People v. Manley (1974), 19 Ill. App. 3d 365, 370.

Having determined that the State did not comply with Supreme Court Rule 412, we must next determine whether the noncompliance mandates a new trial. The failure to comply with discovery requirements does not, in all instances, necessitate a new trial. (People v. Harris (1988), 123 Ill. 2d 113, 151; People v. Cisewski (1987), 118 Ill. 2d 163, 172.) A new trial should only be granted if the discovery violation prejudiced the defendant and the trial court failed to eliminate the prejudice. (Harris, 123 Ill. 2d at 151-52.) Among the factors to be considered in determining whether the defendant is entitled to a new trial are the closeness of the evidence, the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, and the willfulness of the State in failing to disclose. Harris, 123 Ill. 2d at 152; Cisewski, 118 Ill. 2d at 172.

Defendant primarily relies on two cases, People v. Orr (1986), 149 Ill. App. 3d 348, and People v. Weaver (1980), 90 Ill. App. 3d 299, aff’d (1982), 92 Ill. 2d 545, to support his contention that he was prejudiced by the State’s nondisclosure of the statement. In Orr, the defendant was charged with aggravated arson and arson. Five days before the incident, the defendant allegedly told the daughter of the victim of the arson that he “was gonna destroy everything that [she] loved and he was gonna burn [her] mother’s house.” (Orr, 149 Ill. App. 3d at 358.) This statement was never disclosed to defense counsel during pretrial discovery. Defendant’s motion for a mistrial based upon the nondisclosure was denied. Defendant was subsequently tried and convicted of the arson charges, and the appellate court reversed. The appellate court determined that the nondisclosed statement constituted a direct threat to commit the crimes for which he was tried and convicted. As such, the court was unable to conclude that the nondisclosure did not prejudice the defendant at trial. (149 Ill. App. 3d at 360.) The court noted that disclosure of the statement would have provided the defendant with the opportunity to interview the daughter and to formulate a method to discredit or explain her testimony. 149 Ill. App. 3d at 360.

Furthermore, in People v. Weaver (1980), 90 Ill. App. 3d 299, aff’d (1982), 92 Ill. 2d 545, the State failed to disclose to defense counsel statements that the defendant made to her mother-in-law which allegedly provided a motive to commit the murder of the defendant’s husband. The statements were allegedly made a few weeks after the homicide. This court reversed the defendant’s conviction, holding that the State’s failure to disclose the statements that the defendant made concerning an affair she had had was prejudicial error which denied the defendant a fair trial. (Weaver, 90 Ill. App. 3d at 304.) Our supreme court agreed, holding that such nondisclosure required a new trial due to the prejudice involved in the statements. (Weaver, 92 Ill. 2d at 561.) The court noted that the testimony was extremely damaging in that it showed a motive to commit the offense charged and a willingness to lie to conceal that motive. 92 Ill. 2d at 560.

We believe that Orr and Weaver are factually distinguishable from the case at bar. The statement made in the present case was not a direct threat to commit the crimes charged (like in Orr) and did not involve an admission concerning the motive for the offense (like in Weaver). Instead, the statement was allegedly made during the commission of the offense and was simply one of several statements that defendant made to the complainant. As Ellen Hemmerich testified, defendant said to her during the course of the struggle “don’t scream, and I won’t hurt you,” “I’ve got this [referring to a knife],” “don’t do that [use the dog repellent],” “that didn’t do anything,” “would you do this for your daddy,” and “then go [after the struggle had ended].” The statement was in no way essential to defendant’s conviction and, as such, in no way affected the result of the trial. Consequently, the admission of the nondisclosed statement was harmless error which does not warrant reversal in this case. See People v. Carter (1988), 174 Ill. App. 3d 369, 377; People v. Padilla (1988), 173 Ill. App. 3d 357, 360.

Defendant next contends that he was denied a fair trial by the prosecutor’s improper closing argument. Specifically, defendant argues that the prosecutor incorrectly informed the jury that in order to believe defendant, all of the State’s witnesses would have to be liars; improperly argued that defense counsel aided defendant in committing perjury; and improperly proffered a personal opinion that defendant was guilty. Defendant argues that the cumulative effect of the errors requires reversal and a new trial.

During his rebuttal closing argument, the prosecutor repeatedly characterized defendant as a “liar” who was trying to “lie his way out” of the crimes charged. In addition, the prosecutor made several comments comparing the testimony of defendant and the victim, stating “[s]he is either a liar about that or he is guilty. There is [sic] no two in betweens.” The prosecutor further stated that “[s]he [the victim] is either a liar or he is guilty, and Tom Stuckey and Jeff Groh [police officers] are also liars, or he is guilty.” The prosecutor continued by stating that “[i]f you [the jury] find him guilty of anything less than Aggravated Battery, you are giving him a break that he doesn’t deserve, and you have called Ellen a liar.”

The State responds by arguing that the statements and characterizations made by the prosecutor during his closing argument were permissible argument and hence proper. The State asserts that it was proper to characterize defendant as a “liar” and that there was no misstatement of law with respect to which of the witnesses the jury must believe before finding defendant guilty or not guilty.

Initially, we note that a prosecutor is allowed a great deal of latitude in giving a closing argument. (Cisewski, 118 Ill. 2d at 175; People v. Sawczenko (1989), 180 Ill. App. 3d 406, 415.) The trial court’s determination of the propriety of the closing argument will generally be followed on appeal absent a clear abuse of discretion. (Cisewski, 118 Ill. 2d at 175.) In reviewing allegations of prosecutorial misconduct, we must closely examine the closing arguments of both the State and the defendant in their entirety to place the complained-of comments in their proper context. Cisewski, 118 Ill. 2d at 175-76.

Defendant cites People v. Cole (1980), 80 Ill. App. 3d 1105, and People v. Rogers (1988), 172 Ill. App. 3d 471, to support his position that the prosecutor committed reversible error by telling the jury that in order to believe defendant they must find that the State’s witnesses were lying. In Cole, the prosecutor stated, in his closing argument:

“Then you got to ask yourselves if you are going to believe Georgeann Raptis [defense witness] and Alan Cole [the defendant] and the alibi witnesses. Is there one iota of truth in the testimony of the witnesses for the State. You have got to find that Randall Keller is lying. You got to find that Officer Tencza and Slewoski and Officer Cas sata are lying. You have got to find that Investigator Cans and the other witnesses of the State are lying.” (Cole, 80 Ill. App. 3d at 1107.)

The appellate court held that the prosecutor’s statements were “such a misstatement of law as to prejudice the defendant and deny him a fair trial.” (80 Ill. App. 3d at 1108.) The court noted that the jury could fully believe the testimony of some, if not all, of the State’s witnesses and still find the defendant not guilty. 80 Ill. App. 3d at 1108.

Likewise, in People v. Rogers (1988), 172 Ill. App. 3d 471, the prosecutor stated in his closing argument that to believe the defendant’s testimony, the jury would have to infer that all of the State’s witnesses were lying. This court reversed the defendant’s conviction and remanded the case for a new trial based on the prosecutor’s improper closing argument. We noted that the defendant’s testimony was inconsistent with four of the seven witnesses for the State on one issue and that it was improper for the prosecutor to characterize the testimony of the other witnesses as contradicting the defendant’s testimony. Rogers, 172 Ill. App. 3d at 478.

We disagree with defendant’s claim that Cole and Rogers support his contention that the prosecutor’s closing argument deprived him of a fair trial. In both Cole and Rogers, the prosecutor incorrectly informed the jury that in order to find the defendant not guilty, they must find that each of the State’s witnesses was lying. However, in the case at bar, the prosecutor merely revealed the contradictions between defendant’s version, the complainant’s recollection, and the investigatory officers’ reports concerning the incident in question. The prosecutor argued that the jury would have to believe that the State’s witnesses were lying in order to believe defendant’s version of the incident. The prosecutor did not state that the jury would have to find that the State’s witnesses were “liars” in order to acquit defendant of the offenses charged. Consequently, after reading the prosecutor’s closing argument in its entirety, we find that the argument was properly based on the evidence and hence find no prejudicial error.

Defendant also argues that he was prejudiced by the prosecutor’s comment during rebuttal closing argument that defendant was “trying to lie his way out of this case, to lie his way. With the help of Mr. Linn [defense counsel].” Defendant contends that this statement was prejudicial when placed in the context of the prosecutor’s “perjury theme” closing argument.

Comments which question the integrity of defense counsel and imply that the defense presented was fabricated at defense counsel’s direction have consistently been condemned. (People v. Beringer (1987), 151 Ill. App. 3d 558, 563-64; People v. Starks (1983), 116 Ill. App. 3d 384, 394.) The comment in the present case was immediately objected to, with the trial court sustaining the objection and directing the jury to disregard the comment. This is not an instance of repeated accusations that defense witnesses perjured themselves at counsel’s request, but instead was one isolated instance of improper argument. Under these circumstances, any prosecutorial indiscretion shown does not constitute reversible error.

Defendant also argues that the prosecutor improperly interjected his personal opinion at the end of his rebuttal closing argument. The prosecutor stated:

“I don’t usually do this, but there is a psychologist by the name of Samenow I was reading recently, and he has written a book called ‘Inside the Criminal Mind,’ and he says that the criminals, guys like Cory Siefke, choose their associates, their way of life and the crimes they commit. They reject society long before society rejects them. They are the victimizers, not the victims. They value people only to the extent that they can be manipulated. They believe they are entitled to whatever they desire and they do not justify their actions to anyone.
I read that last night and that suits Mr. Siefke to a tee.”

Defense counsel’s objection to the remarks was sustained, and the jury was instructed to disregard the remarks.

In People v. Tiller (1982), 94 Ill. 2d 303, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121, our supreme court addressed the propriety of a similar argument. In Tiller, the prosecutor explained to the jury that there was a biological hierarchy to the life forms on earth, ranging from man to amoeba. The prosecutor placed criminals, like the defendant, at the bottom of the hierarchy. The court stated that this argument constituted error because the statements served no purpose other than to inflame the jury’s passions. (Tiller, 94 Ill. 2d at 320-21.) However, the court determined that the error did not warrant reversal of the judgments because it did not result in substantial prejudice to the defendant. 94 Ill. 2d at 321.

Likewise, in the present case, the prosecutor’s comments concerning the book “Inside the Criminal Mind” were improper because they were not based on the evidence and could only have been used to inflame the jury’s passions against defendant. However, like in Tiller, we do not believe that this error warrants reversal. This was one isolated, improper comment which was cured by the court’s prompt instruction to the jury to disregard the statement and thus did not deprive defendant of a fair trial.

Defendant’s last contention on appeal is that his conviction of kidnapping must be vacated. Defendant argues that the trial judge, during the sentencing hearing, implicitly entered a judgment notwithstanding the verdict on the kidnapping verdict. We agree.

During the sentencing hearing, the trial court stated that it was not going to sentence defendant on the kidnapping charge because “there has to be intent to secretly confine and just does not match the facts in this case.” Later in the hearing, the court stated that secret confinement “is not the situation presented in this case.” The following discussion then ensued:

“MR. SPENCE [defense counsel]: Judge, am I to understand the Court then is setting aside the jury verdict on the kidnapping charge?
THE COURT: That’s right. In essence, that is what the Court has done.”

The court later stated that it was “not going to set aside the kidnapping, it is just no sentence on that charge.”

In order for defendant to be convicted of kidnapping, the State was required to prove that defendant knowingly and secretly confined another against his or her will. (Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(1); People v. Sykes (1987), 161 Ill. App. 3d 623, 628.) “Secret confinement” is a necessary element of the offense and must be proved beyond a reasonable doubt. (Sykes, 161 Ill. App. 3d at 628.) Secret confinement may be shown by proof of either the secrecy of confinement or the place of confinement. People v. Mulcahey (1978), 72 Ill. 2d 282, 285.

In the present case, the trial court determined that the facts did not support the guilty verdict on the kidnapping charge. The court’s determination was supported by the Sykes decision. In Sykes, the appellate court reversed the defendant’s conviction of aggravated kidnapping because there was no evidence that the victim was confined or enclosed within any place or any thing. (161 Ill. App. 3d at 628-29.) Since the trial court determined that the “secret confinement” element was not met in our case, no conviction could possibly stand on the kidnapping charge. As such, defendant’s kidnapping conviction must be vacated.

For the above stated reasons, the judgment of the circuit court of Du Page County is affirmed, and defendant’s conviction of kidnapping, for which no sentence was imposed, is hereby vacated.

Affirmed in part; vacated in part.

UNVERZAGT, P.J., and GEIGER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. SHOCKLEY, Defendant-Appellant.
    Second District
    No. 2—88—0381
    Opinion filed March 16, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, James Shockley, was charged by indictment with aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(a)(2)). The grand jury later amended the indictment to charge defendant with criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(1)). Following a jury trial, defendant was found guilty and was sentenced to 10 years’ imprisonment. On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; and (2) his right to confront witnesses was violated by not requiring the State to disclose the complainant’s new address. We affirm.

At trial, the State’s first witness was the complainant, Fritzi. Fritzi testified that on August 8, 1987, she went to the Wrens Roost bar with two friends, John Cerqua and Janice Cohen. Fritzi stated that they arrived at the bar at approximately 4:30 p.m., sat down at a table, and were joined shortly thereafter by a person known as “James.” Fritzi began to talk to James about his tattoo on his arm depicting “a naked lady with a dragon wrapped around it.” James told her that he was from Kentucky and currently lived in Aurora, Illinois. Fritzi later identified James as being the defendant in this case.

Fritzi further testified that they stayed at the Wrens Roost for approximately one hour and drank two beers each. After leaving the bar, Fritzi, her two friends, and defendant went to a nearby bar, the Cove. Fritzi and defendant each had one beer at the Cove and left approximately 30 to 45 minutes later to visit defendant’s friend in a nearby apartment. Fritzi stated that both of her friends accompanied her and defendant to the apartment in defendant’s automobile, although defendant was the only one to actually go into the apartment. Defendant parked the car in an alley and returned approximately 15 minutes later and drove to another bar, Bernie’s.

Fritzi stated that the four of them stayed at Bernie’s for an hour or more, consuming approximately two beers each. Fritzi saw a friend of hers, Dave Dieters, at the bar, but did not talk with him. Shortly thereafter, Fritzi left Bernie’s with defendant to go to another bar, John’s B & B. John and Janice both stayed at Bemie’s and did not go to John’s B & B. Fritzi testified that she rode with defendant in his car to get to John’s B & B, arriving at approximately 8:30 p.m. Fritzi and defendant each drank two or three beers at John’s B & B before leaving at approximately 9:30 p.m. to visit another bar, Nickels.

Fritzi stated that defendant stopped for gas on the way to Nickels and purchased a six-pack of beer. Defendant told Fritzi that he wanted to drive around and drink the beer, but she requested that he take her home. Defendant continued to drive around and eventually stopped at the Hesed House, which Fritzi described as a shelter for the homeless to stay in the winter. After arriving at the house, Fritzi stated that she saw a blue pickup truck nearby and started to run toward it. However, defendant stopped her, grabbed her mouth and told her to stop screaming. Defendant told her that he had a gun, pushed her onto the ground and removed her pants. Defendant then got on top of her and engaged in sexual intercourse with her. Fritzi stated that she was afraid that defendant would kill her if she did not cooperate with him.

Fritzi further stated that defendant drove her into downtown Aurora following the sexual activity. Defendant dropped her off approximately one block from the Wrens Roost, and Fritzi walked toward the bar. She saw her friends John and Janice standing outside of the bar and told them that she had been raped. She asked John to call the police, and an officer arrived approximately 10 minutes later. The officer drove Fritzi back to the Hesed House before taking her to the hospital to receive medical treatment. Fritzi stated that the blue pickup truck was still parked at the Hesed House when she returned. Fritzi testified that her foot hurt after the attack, but X rays did not reveal any broken bones.

On cross-examination, Fritzi testified that she participated in a lineup in which she had an opportunity to hear and see five individuals. Fritzi stated that she did not think defendant was one of the five persons, “[b]ut if he is, it’s [sic] No. 2.” After being shown a picture of the lineup, she agreed with defense counsel’s statement that defendant “is the only person in this courtroom who’s in the picture.” She also stated that she spoke with Detective Deborah Porter of the Aurora police department on August 12, 1987, and told her that someone removed some money from her pocket after the incident. However, she was unsure of the amount of the money taken from her, although she was sure that it was less than $30.

John Cerqua testified that he went to a “couple of bars” with Fritzi and Janice Cohen on August 8, 1987. Cerqua stated that they met a man known as “Hillbilly James” at the Wrens Roost. Cerqua later identified defendant as the man he knew as Hillbilly James. After visiting two bars, Fritzi and defendant went on their own to go to another bar. Cerqua stated that he and Cohen did not accompany them because they did not have any more money.

Cerqua further testified that he and Cohen went back to the Wrens Roost at approximately 11 p.m. and saw Fritzi walking toward the bar. Cerqua described Fritzi as “all shooken [sic] up, crying and walking with a limp.” Cerqua also noticed that Fritzi had mud on the back of her shirt and that her jeans and feet were dirty. Cerqua stated that Fritzi did not have mud or dirt on her before she went to the bar with defendant. Fritzi told Cerqua that she had been raped, and he went inside the bar to call the police. Cerqua stated that he went in the police car with Fritzi and Cohen to visit the rape scene and then to the hospital.

Cerqua stated that he, along with Dave Dieters, saw defendant again on August 11, 1987. Cerqua noticed defendant “peeking around the corner” near the Wrens Roost, and he began to chase after defendant. Cerqua chased defendant into an apartment building and waited for the police to arrive. Cerqua stated that defendant left the apartment building after the police arrived and began to talk with the officers.

The State’s next witness, Dave Dieters, testified that he saw defendant with Fritzi at Bernie’s Bar on August 8, 1987. Dieters stated that he was a friend of Fritzi’s but did not talk with her because she was with defendant at the bar. Dieters did not see Fritzi again that night.

Dieters also testified that he saw defendant again on August 11, 1987. Dieters stated that he “chased down” a police officer, explained what was happening, and began to run after defendant with John Cerqua. Dieters did not see defendant enter the apartment building, but did observe him leave the building and begin to talk to the police officers.

Officer Danny Crissip of the Aurora police department testified that he was directed to investigate a possible sexual assault on August 8, 1987, at approximately 11 p.m. After arriving at the Wrens Roost, Officer Crissip saw Fritzi and was told that she had just been raped. Fritzi also provided a description of her attacker to Officer Crissip. Officer Crissip noticed that Fritzi had some red marks on her face, that her clothes were dirty and in disarray, and that she appeared to be “quite upset.” Officer Crissip took Fritzi to the Hesed House before taking her to the hospital. He testified that he did not see any cars at the Hesed House for the 5 to 10 minutes that they were there. On cross-examination, Crissip did not recall Fritzi mentioning anything about a pickup truck at the Hesed House, and he did not recall seeing a truck there during his investigation that night.

Sergeant Raymond Weaver of the Aurora police department testified that he was working on August 11, 1987, at approximately 9 p.m. when he was “flagged down” by three persons in downtown Aurora. Sergeant Weaver stated that he went to a nearby apartment building to question “a suspect in a rape.” The suspect was later identified as defendant. Sergeant Weaver then called for another squad car to take defendant to the police station for questioning.

Detective Deborah Porter of the Aurora police department testified that she interviewed Fritzi on August 12, 1987, at the police station. Detective Porter stated that Fritzi told her that defendant took $30 out of her pocket on the night of the incident. Fritzi also told her that she suffered a “hairline fracture” of her foot.

Mary Christian, a nurse at Copley Memorial Hospital in Aurora, testified that she treated Fritzi in the emergency room on August 8, 1987, at approximately 11:35 p.m. Nurse Christian stated that she examined Fritzi and prepared a Vitullo evidence kit, which she gave to the police. She also stated that she did not believe that Fritzi was intoxicated that evening, so she did not test Fritzi’s blood sample for its alcohol content. However, on cross-examination, she noted that the treating physician, Dr. Sarroca, wrote “ETOH” in his notes on Fritzi. Nurse Christian stated that ETOH is an abbreviation for alcohol.

Dr. Manuel Sarroca testified that he was an emergency room physician at Copley Memorial Hospital in Aurora. Dr. Sarroca stated that he treated Fritzi on August 8, 1987, and noticed that she had a contusion of the lip, a small cut on her finger, and a sore foot. An X ray was taken of Fritzi’s foot but found no fracture or other bone injury. Dr. Sarroca also performed a pelvic examination on Fritzi in which he found no injuries to the genital area, but did notice “some small dirt particles on the outside, also inside the vagina that looked like some of which looked like either a piece of grass or a piece of leaf.”

Arlene Hall, a forensic serologist for the Illinois State Police department, testified that she tested the contents of the Vitullo evidence kit used in this case, along with a sample of defendant’s blood. Hall noted that both Fritzi and defendant were classified as ABO secretors, but testing revealed no activity on the ABO typing. Hall explained that she was unable to make a conclusion as to the source of the semen sample on Fritzi’s vaginal swab. It was Hall’s opinion that no male could be excluded as the source of the seminal material based on the tests that she performed.

The first defense witness, James Davis, testified that he worked with defendant and lived at the apartment where defendant ran to after being chased on August 11, 1987. Davis let defendant into the apartment and looked out the window to see men with “sticks and things” in their hands. Davis then saw police officers arrive. Defendant then left the apartment, telling Davis that “I’ll [defendant] go down and get this mess cleared up.”

Pam Shockley, defendant’s wife, testified that she took her six-year-old son to a drive-in movie on August 8, 1987. When she returned from the movie at approximately 10 p.m., she saw defendant sleeping on the sofa. Pam left her home a short time later and returned about 10 minutes later to find defendant still asleep on the sofa.

Defendant testified at trial that he went to the Wrens Roost on August 8, 1987, and began to talk with a “Spanish gentleman” and “two ladies.” Defendant drank beer with the three people at the Wrens Roost before moving on to the Cove and Bernie’s. Around 8 p.m., defendant and Fritzi left Bernie’s and went to John’s B & B, where they continued to drink beer. Defendant described Fritzi as being “very intoxicated” by the time they arrived at John’s B & B. Defendant stated that he went to the bathroom soon after arriving at John’s B & B, and upon returning to the table noticed that a “Spanish guy” had sat down at the table and had three lines of cocaine drawn out on the table. Defendant stated that he did not sit down at the table, but instead left the bar and went home by himself. Defendant denied raping anyone on August 8, 1987.

On cross-examination, defendant testified that both he and Fritzi were intoxicated by the time that they arrived at John’s B & B. Defendant again stated that he left the bar, without Fritzi, after seeing the cocaine on the table. He noticed that Fritzi’s clothes were clean when he left the bar. Defendant denied going to the Hesed House at any time on August 8, 1987, and further denied striking Fritzi or engaging in sexual intercourse with her. In addition, defendant admitted that he had a tattoo of a naked woman and a serpent on his arm, which he showed to the jury.

Defendant further stated that he went back to the Wrens Roost on August 11, 1987. As he was leaving the bar, he noticed three unidentified persons running toward him with sticks in their hands. Defendant ran toward James Davis’ apartment, nearly being hit in the head by a rock thrown by one of the men chasing him. Defendant stated that he waited in Davis' apartment for the police to arrive, at which time he went downstairs and told the police that he wanted to “file charges on these people.”

At the conclusion of defendant’s testimony, the defense rested. Following closing arguments, the jury returned a verdict finding defendant guilty of criminal sexual assault. The trial court then sentenced defendant to 10 years’ imprisonment. Defendant filed a timely notice of appeal.

Defendant’s first contention on appeal is that he was not proved guilty beyond a reasonable doubt. In particular, defendant argues that Fritzi’s testimony was not clear and convincing and was not substantially corroborated by other witnesses. As such, defendant contends that his conviction must be reversed. We disagree.

It is our opinion that the evidence in the present case was sufficient to find defendant guilty beyond a reasonable doubt. In a prosecution for criminal sexual assault, the complainant’s testimony must be clear and convincing or corroborated by other facts or evidence. (People v. Gramc (1989), 181 Ill. App. 3d 729, 737; People v. Jackson (1989), 178 Ill. App. 3d 785, 793.) However, clear and convincing evidence is not synonymous with uncontradicted or unimpeached testimony. (People v. Henne (1988), 165 Ill. App. 3d 315, 323-24; People v. Redman (1986), 141 Ill. App. 3d 691, 703.) Minor variances or discrepancies in the complainant’s testimony may occur and do not constitute grounds for reversal. (People v. DuPree (1987), 161 Ill. App. 3d 951, 961.) Instead, such discrepancies affect only the complainant’s credibility. (DuPree, 161 Ill. App. 3d at 961.) It is for the trier of fact to weigh any discrepancies, and if they are so minor as to not detract from the reasonableness of her testimony, her testimony may be found to be clear and convincing. Henne, 165 Ill. App. 3d at 324; Redman, 141 Ill. App. 3d at 703.

In the case at bar, defendant argues that the complainant’s testimony was not clear and convincing since it conflicted with other evidence. Specifically, defendant points out that Fritzi’s testimony conflicted with the testimony of Aurora police officers to whom she made statements. At trial, Fritzi testified that she saw a blue pickup truck at the Hesed House during the offense and further stated that Officer Crissip spoke to a person in the pickup during his investigation later in the night. However, Officer Crissip testified that he did not see a pickup truck at the Hesed House during his investigation.

Defendant also points out inconsistencies in Fritzi’s testimony regarding the time when defendant arrived at the Wren’s Roost, whether defendant stopped his car in an alley before proceeding to the Cove, whether her foot was injured during the attack, and whether her attacker took any money from her following the attack. Defendant also asserts that Fritzi’s inability to positively identify him at a lineup held on November 3, 1987, rendered her testimony less than clear and convincing.

Defendant contends that People v. Byas (1983), 117 Ill. App. 3d 979, supports his argument that Fritzi’s uncertainty at the lineup rendered her testimony less than clear and convincing. In Byas, the victim had trouble identifying the defendant during a photographic display, a lineup, and at the preliminary hearing. She was also unable to provide an accurate description of her attacker to the police. Her only positive identification of the defendant came at trial, and only after being shown three photographs of the defendant. (Byas, 117 Ill. App. 3d at 985.) The appellate court reversed the defendant’s conviction, holding that the evidence of the defendant’s identity was insufficient to sustain his conviction. 117 Ill. App. 3d at 984.

We find the Byas decision to be readily distinguishable from the identification issue present in this case. A review of the record indicates that defendant’s appearance changed from the time of the attack to the time of the lineup. Fritzi testified that defendant had a moustache at the lineup, which he did not have on the night of the assault. In addition, she stated that he was thinner and had longer hair on the date of the lineup. Fritzi also stated that she was “extremely nervous, not real sure of myself” at the time of the lineup, mainly due to being photographed and questioned by defendant’s attorney during the lineup. Fritzi stated that she thought that person number two (defendant) at the lineup was her assailant, but she couldn’t be sure.

It is well settled that any alleged discrepancies or inconsistencies in identification testimony go to the weight and credibility of the testimony, a function properly left for the trier of fact. (People v. Johnson (1986), 114 Ill. 2d 170, 190, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618; People v. Graham (1989), 179 Ill. App. 3d 496, 506.) While we agree that a conviction cannot be sustained based solely on a doubtful or uncertain identification (Graham, 179 Ill. App. 3d at 506), we do not believe such to be the case under the facts here. While there was some doubt or uncertainty regarding Fritzi’s identification of defendant at the lineup, it does not require reversal in this instance. The record indicates that defendant’s appearance had changed from the time of the assault to the lineup date. In addition, Fritzi was able to provide a description of defendant to Officer Crissip on the night of the attack and was able to positively identify defendant at trial as her assailant. Fritzi also stated that she noticed a tattoo of “a naked lady with a dragon” on defendant’s arm, which in fact defendant displayed to the jury during his testimony. Under these facts, Fritzi’s identification of defendant was, unlike Byas, not so vague and uncertain to render her testimony less than clear and convincing.

As to the other inconsistencies pointed out by defendant, it is our opinion that they do not detract from the reasonableness of Fritzi’s version of the events occurring on August 8, 1987. Inconsistencies regarding the time that defendant arrived at the bar, whether he stopped his car en route to another bar, and whether any money was taken from the pocket in Fritzi’s jeans were collateral matters not relating to the specifics of the sexual assault. (See DuPree, 161 Ill. App. 3d at 961.) Fritzi’s testimony concerning her injured foot was substantiated by Dr. Sarroca, who testified that X rays were taken of her foot due to her complaint of pain. We find little or no significance to the fact that Fritzi did not inform the police officers that her foot was injured during the assault.

With respect to the inconsistency concerning the pickup truck at the Hesed House, we again disagree with defendant’s characterization of the significance of the discrepancy. It is entirely possible that Officer Crissip did not notice the pickup truck during his brief investigation at the Hesed House. In any event, situations like this concern matters of credibility which are properly reserved for the trier of fact to decide. We do not believe that the inconsistencies sufficiently detracted from the reasonableness of Fritzi’s testimony to render her testimony unclear and unconvincing.

Defendant also argues that Fritzi’s testimony was not substantially corroborated by other witnesses. In a sexual assault case, the complainant’s testimony must be corroborated by other facts and circumstances in evidence unless the testimony is clear and convincing. (DuPree, 161 Ill. App. 3d at 960; People v. Wright (1986), 147 Ill. App. 3d 302, 313.) While we have already determined that the complainant’s testimony was clear and convincing in this case, we also note that her testimony was sufficiently corroborated by her prompt complaint of the incident. Gramc, 181 Ill. App. 3d at 738; People v. Server (1986), 148 Ill. App. 3d 888, 895, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.

Defendant also argues that Fritzi’s testimony in this case was “incredible and beyond belief.” Defendant asserts that it is “difficult to conceive” that he would drop her off only one block from the Wrens Roost after sexually assaulting her and then return to the Wrens Roost three days later. Defendant cites People v. Jackson (1989), 178 Ill. App. 3d 785, and People v. Wright (1986), 147 Ill. App. 3d 302, to support his contention.

In Jackson, the appellate court reversed the defendant’s conviction of sexual assault, noting that it was “farfetched” for the defendant to take the complainant to a motel room, register for the room using his correct name, address, and driver’s license number, and then forcibly rape her. (Jackson, 178 Ill. App. 3d at 789.) In Wright, the appellate court reversed the defendant’s rape conviction, finding that the victim’s version of the events “has greater value as fiction than as credible evidence.” (Wright, 147 Ill. App. 3d at 318.) The court also described the victim’s testimony as “highly unlikely, improbable and unbelievable.” 147 Ill. App. 3d at 318.

We disagree with defendant’s assertion that the evidence in the case at bar is at all similar to that presented in Jackson or Wright. Again, we agree with defendant that the complainant’s testimony contained some inconsistencies in this case. However, we fail to perceive how these inconsistencies transform the complainant’s testimony into “fiction” or render it highly unlikely, improbable or unbelievable.

A court of review will not disturb a conviction unless the evidence is so palpably contrary to a guilty determination, or is so unreasonable or improbable that it raises a reasonable doubt of the defendant’s guilt. (DuPree, 161 Ill. App. 3d at 962.) In the case at bar, Fritzi made a prompt complaint to her friends and the police, described her attacker to the police, and gave a description of the incident to the medical personnel in the emergency room. In addition, Dr. Saccora found dirt particles on the outside of Fritzi’s genitalia and a piece of a leaf or grass inside her vagina. Testimony at trial also indicated that Fritzi’s blouse and jeans contained dirt after the incident, although they were clean earlier in the evening. Even with the inconsistencies outlined above, we cannot find that the jury’s verdict was so unreasonable or improbable that it raises a reasonable doubt of defendant’s guilt in this case.

Defendant next contends that his right to confront witnesses was violated when the State was not required to disclose the complainant’s new address. Defendant argues that the failure to require disclosure in this case prevented him from conducting a sufficient pretrial investigation to effectively challenge complainant’s credibility at trial. As such, defendant asserts that his right to confrontation was violated and this requires a reversal of his conviction.

Before trial, the State filed a motion requesting the trial court to deny disclosure of Fritzi’s new address to defendant. The motion was based upon Supreme Court Rules 412(i) and 415(d) (107 Ill. 2d Rules 412(i), 415(d)). In the motion, the State alleged that Fritzi received a telephone call from a person who identified herself as defendant’s wife and that his wife requested that Fritzi not continue to prosecute the case. Since receiving the phone call, Fritzi changed residences and obtained an unlisted telephone number. The State argued in the motion that “there is substantial risk of harm, intimidation, bribery, and unnecessary embarrassment to the victim if her new address is released to the defendant.” Attached to the motion was Fritzi’s affidavit, in which she stated:

“That during this conversation, the woman who said she was Pam Shockley suggested that I could drop charges or not appear in court, that she did not think her husband should go to jail but should receive counselling, and that he had just gotten out of jail in Kentucky in addition to other things.”

The trial court conducted a hearing on the State’s motion. Defendant argued that he needed the address to allow him to investigate Fritzi’s reputation for truthfulness and veracity in her community. The trial court disagreed and granted the State’s motion, stating that the State was required to disclose her previous address, but not her new address. The court also stated that “the State will make the victim available to the defense.”

Defendant argues that the trial court’s ruling deprived him of an opportunity to conduct a sufficient pretrial investigation to effectively challenge Fritzi’s credibility at trial. Defendant notes that section 114 — 9(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114—9(a)) allows a defendant to obtain a “list of prosecution witnesses and their last known addresses” from the State. While defendant agrees with the State that Supreme Court Rule 412(1) (107 Ill. 2d R. 412(i)) can, in certain circumstances, allow a court to deny disclosure, he argues that this is not such a case.

Supreme Court Rule 412® provides, in pertinent part:

“The court may deny disclosure *** if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure which outweighs any usefulness of the disclosure to counsel.” (107 Ill. 2d R. 412(1).)

The purpose of this rule is to assist the defendant in the investigation of the witness and to prevent surprise or unfair advantage which prejudices the defendant at trial. (People v. Morissette (1986), 150 Ill. App. 3d 431, 440; People v. Smith (1985), 139 Ill. App. 3d 21, 29.) It is incumbent upon the defendant to show that surprise or other prejudice resulted from the State’s failure to supply the witness’ address. People v. Gutierrez (1985), 136 Ill. App. 3d 774, 784.

It is our opinion that the trial court properly denied defendant’s request to obtain Fritzi’s new address in this ease. The court could properly conclude that providing defendant with Fritzi’s new address could result in “unnecessary annoyance or embarrassment,” especially after considering that defendant’s wife apparently tried to get Fritzi to stop the prosecution of the case.

Furthermore, defendant has failed to demonstrate how the nondisclosure of Fritzi’s new address prejudiced him at trial. Defendant argued that he needed her new address to investigate her reputation for truth and veracity in her new neighborhood in order to effectively cross-examine her. However, we fail to see how any information concerning her reputation for truth and veracity could reasonably be expected to be obtained from her new neighbors. The trial court ordered the State to disclose Fritzi’s last address before her new address. Defendant was able to effectively cross-examine Fritzi at trial, including eliciting some inconsistencies in her testimony. Defendant has failed to show how the outcome of the trial would have been different had he been provided with Fritzi’s new address. (See Gutierrez, 136 Ill. App. 3d at 784-85.) Thus, we find no error in the trial court’s ruling denying defendant disclosure of Fritzi’s new address.

For the above-stated reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and DUNN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. THOMAS LEE SALES, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2—88—0013
    Opinion filed March 15, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz and Shawn W. Denney, Solicitors General, and Rosalyn B. Kaplan and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    David W. Mandrgoc, of Mandrgoc Law Office, of Dixon, for appellee Thomas Lee Sales.

      Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

This court’s previous opinion in this case (People v. Sales (1989), 180 Ill. App. 3d 743), which dismissed the present appeal, was vacated by order of the supreme court on October 4, 1989. (Sales, 127 Ill. 2d 636, 544 N.E. 2d 391.) The supreme court remanded the case to this court, and we now consider the issues presented for review.

Defendant, Thomas Lee Sales, after being properly advised of his rights, pleaded guilty to two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(b)), having committed an offense upon two of his minor daughters. The judgments of convictions and sentences of the circuit court of Lee County were entered on November 9, 1987. Defendant was sentenced to two concurrent four-year periods of probation with numerous conditions and restrictions, including 60 days of periodic imprisonment, with work release and counseling.

Upon conviction of such a crime, the Illinois Vehicle Code (Code) requires the Secretary of State (Secretary) to revoke the defendant’s driver’s license (Ill. Rev. Stat. 1987, ch. 95½, par. 6—205(b)(2)). On defendant’s motion and without objection by the State’s Attorney, the circuit court entered an order nunc pro tunc directing the Secretary to issue a restricted driving permit (RDP) to defendant for the purpose of attending counseling and work. The Secretary contends that the trial court exceeded its authority by ordering the Secretary to issue a RDP to defendant. Based on the facts of this case, we agree, and we vacate the order.

Defendant argues, apparently for the first time on appeal, that the mandatory revocation of his driver’s license is unconstitutional as a violation of due process and equal protection under the State and Federal Constitutions. However, we will not consider defendant’s arguments, as the record does not show that they were properly raised and ruled upon in the trial court below. Generally, constitutional issues cannot be raised for the first time on appeal; they are therefore waived. Sheldon v. Edgar (1985), 131 Ill. App. 3d 489, 495; Nugent v. Miller (1983), 119 Ill. App. 3d 382, 387.

Section 6—205(b)(2) of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 6—205(b)(2)) requires the Secretary to revoke the driver’s license of an individual convicted of aggravated criminal sexual abuse, as in the present case, upon the Secretary’s receipt of notice of that conviction. However, such an individual may receive a RDP pursuant to subsection (c) of section 6 — 205 of the Code, which provides in part:

“Whenever a person is convicted of any of the offenses enumerated in this Section, the court may recommend and the Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95½, par. 6—205(c).

The Secretary contends that the plain statutory language places the ultimate decision of issuing a RDP within the scope of the Secretary’s discretion, subject only to judicial review by a circuit court after the Secretary has rendered its final administrative decision. Ill. Rev. Stat. 1987, ch. 95½, par. 6—212; see generally Ball v. Edgar (1988), 165 Ill. App. 3d 349, 352; Foege v. Edgar (1982), 110 Ill. App. 3d 190, 195-96.

The circuit court has ordered the Secretary to perform not merely ministerial duties, but to exercise its powers of discretion. As the Secretary has pointed out, the plain statutory language of section 6 — 205(c) of the Code expressly grants the Secretary discretion to issue a RDP upon submission of an application by the convicted driver. Since the statutory language is simple and unambiguous, it is improper for a court to depart from the plain language by reading into the statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent. Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363.

The Illinois Constitution divides the powers of government among the legislative, executive, and judicial departments and provides that none of these shall exercise powers belonging to the others. It is clear that the judicial department may not take, as its own, discretionary powers vested in an executive officer. (People v. Henry (1974), 20 Ill. App. 3d 73, 74.) The function of the trial court is to review the exercise of discretion by the Secretary, not to exercise that discretion. In substituting its discretion for that of the Secretary by ordering the issuance of a RDP, the trial court violated the separation of powers doctrine. Ball, 165 Ill. App. 3d at 353-54.

A void judgment is one entered by a court without jurisdiction of the parties or the subject matter or that lacks the inherent power to make or enter the particular order involved. Such a judgment may be attacked at any time, either directly or collaterally. (People v. Wade (1987), 116 Ill. 2d 1, 5.) The statute in question contemplates that the trial court may merely recommend the issuance of a RDP. In the present case, the trial court exceeded its powers by ordering the issuance of the RDP. Therefore, the order of December 3, 1987, requiring the Secretary to issue a RDP, is void.

For the above stated reasons, the order of the circuit court of Lee County is vacated.

Vacated.

DUNN and GEIGER, 33., concur.