text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILL HALL, Defendant-Appellant.
    Fifth District
    No. 5—88—0191
    Opinion filed February 23, 1990.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Bill Hall, was convicted after a bench trial in the circuit court of Williamson County of aggravated criminal sexual assault and aggravated criminal sexual abuse. He was sentenced to concurrent terms of eight and four years’ imprisonment respectively. On appeal defendant contends the State failed to prove him guilty beyond a reasonable doubt of either offense and that the trial court erred in sustaining the State’s objection to a medical report on relevancy grounds. We affirm.

Sometime during the month of February 1987 on a Friday evening, defendant picked up his then 10-year-old niece, the victim, from her parents’ house to drop her off at her aunt’s house for the weekend. The aunt was also the ex-wife of the defendant. Instead of taking the victim to her aunt’s, defendant drove to his own apartment. Defendant had been drinking, and according to the victim, smelled of alcohol. Defendant and the victim watched television until defendant walked over to the victim and fondled her breasts and vaginal area. Defendant then drove the victim to a liquor store and a bar, and after consuming additional alcohol, returned to his apartment. Once back at the apartment, defendant threw the victim on the bed, removed some of her clothing, fondled her breasts again and then had intercourse with her. Defendant spoke little during this entire sequence of events but did warn the victim not to tell anyone or else he would hurt her mother. Defendant stopped the assault when one of the victim’s friends knocked on the front door. The victim pulled on her clothing and answered the door. She went bike riding with her friend but said nothing about the incident. She testified she was afraid to tell anyone anything. After she returned, defendant drove her to her aunt’s for the weekend as planned. The victim apparently did not mention anything about the incident until later the next week at school. Eventually one of the victim’s teachers learned of the assault and informed the victim’s mother and the Department of Children and Family Services (DCFS). Upon being interviewed about the assaults, defendant remembered being intoxicated and admitted to fondling the victim’s breasts but denied any acts of intercourse. He later admitted to having rubbed his penis on the victim’s vagina. The interviewers further testified that when defendant made his admissions, he quite often changed specific facts and stated he could not remember others.

Defendant argues on appeal the State failed to prove him guilty of either aggravated criminal sexual abuse or aggravated criminal sexual assault when his admissions were unreliable and supported only by the victim’s unlikely and inconsistent testimony. Defendant points out the incident occurred when he was intoxicated, he could not remember many of the details, and he frequently changed his story to agree with what interviewers told him happened. Defendant believes he was led into making incriminating statements, and therefore his admissions are unreliable. He also argues the victim’s testimony is incredible in that she never appeared disturbed, did not speak out at the bar after the first incident of touching, did not talk to her friend immediately after the assault and visited him in jail several times after the incident while he was confined on unrelated charges. Defendant further believes the victim was inconsistent in her sequence of events and time of occurrence, thereby casting doubt upon her credibility. The State initially counters defendant has waived this issue by not including it in his post-trial motion. The .State further argues defendant’s confession, coupled with the victim’s testimony, was more than sufficient to find him guilty beyond a reasonable doubt of both offenses.

Contrary to the State’s initial assertion, any argument pertaining to the State’s failure to prove defendant guilty beyond a reasonable doubt cannot be waived by failure to include the issue in a post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124, 1131-32.) A challenge to the sufficiency of evidence to sustain a conviction presents an exception to the waiver rule and therefore is reviewable, notwithstanding any failure to raise the issue in a post-trial motion. (See, e.g., People v. Lighthall (1988), 175 Ill. App. 3d 700, 705, 530 N.E.2d 81, 84; People v. Marron (1986), 145 Ill. App. 3d 975, 977, 496 N.E.2d 297, 299.) Accordingly, we will review defendant’s contention.

When faced with a challenge to the sufficiency of the evidence, including sex offense cases, it is not the function of a reviewing court to retry the defendant. “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Whitecotton (1987), 162 Ill. App. 3d 173, 183, 514 N.E.2d 1160, 1167.) A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 276; People v. Britz (1989), 185 Ill. App. 3d 191, 197-98, 541 N.E.2d 505, 509.) Defendant argues, however, the standard of review in sex offense cases is that found in People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59, wherein the court stated: “ ‘[I]t is [a reviewing court’s] duty *** not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged.’ ” (Bartall, 98 Ill. 2d at 305-06, 456 N.E.2d at 64, quoting People v. Jordan (1954), 4 Ill. 2d 155, 156, 122 N.E.2d 209, 210.) We see little difference between these two “standards.” If all reasonable doubt has not been removed, then naturally a reasonable doubt still remains. (But see People v. Phillips (1989), 181 Ill. App. 3d 144, 536 N.E.2d 1242 (Pincham, J., dissenting).) Defendant, however, points out that accusations of sexual offenses are easily made, hard to prove and harder to be defended by the party accused. Accordingly, when a defendant denies such charges, defendant asserts the conviction can be upheld only when there is either some corroboration of the victim’s testimony by some other evidence, fact, or circumstance in the case, or the victim’s testimony is otherwise clear and convincing. (See People v. Daniels (1987), 164 Ill. App. 3d 1055, 1073, 518 N.E.2d 669, 681-82.) Whether or not we agree with this contention, it is not applicable here. Defendant confessed to the charges. While defendant argues his confessions are unreliable, the fact of the matter is defendant never denied that any of the sexual acts took place. It may be true the circumstances of the acts as related by defendant may not match entirely with those detailed by the victim, but the sexual conduct admitted to by defendant clearly falls within the proscribed contact forbidden by statute. (See Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(b)(1), 12 — 16(c)(1).) It simply is not necessary to have actual penile penetration in order to establish aggravated criminal sexual assault. (See People v. Hebel (1988), 174 Ill. App. 3d 1, 31-32, 527 N.E.2d 1367, 1386-87.) Any variances in his statements were minor at best and certainly were collateral to the acts themselves. We also find no evidence of any coercion being used on defendant to make such statements.

Defendant contends, however, that under Illinois law the confession of a defendant standing alone is not sufficient to prove the corpus delicti of a crime. (See People v. Lambert (1984), 104 Ill. 2d 375, 378-79, 472 N.E.2d 427, 428-29. See also People v. Willingham (1982), 89 Ill. 2d 352, 358-60, 432 N.E.2d 861, 864-65.) While this is true, defendant refuses to acknowledge his confession, coupled with the victim’s testimony at trial, constitutes more than sufficient evidence to sustain his convictions beyond a reasonable doubt. (See People v. McNichols (1986), 139 Ill. App. 3d 947, 953-54, 487 N.E.2d 1252, 1257.) Defendant asserts the victim’s testimony is unlikely and inconsistent, but it is for the trier of fact to weigh the evidence and evaluate the credibility of witnesses. (See, e.g., People v. Hutson (1987), 153 Ill. App. 3d 1073, 1076, 506 N.E.2d 779, 781.) Minor inconsistencies in testimony do not destroy credibility; they merely go to the weight to be afforded that testimony. (See Marron, 145 Ill. App. 3d at 981, 496 N.E.2d at 302; People v. Fleagle (1984), 129 Ill. App. 3d 298, 302, 472 N.E.2d 155, 157.) Here, the victim unequivocally testified to certain acts committed upon her by defendant. We do not find it incredible, as does defendant, that she did not immediately tell her friend, her aunt or her mother about the assault. Quite simply, she feared defendant would hurt her or her mother. She also testified she was ashamed of the fact the assault had taken place. Once her mother knew about the incident, the victim related to her the details of the sexual assault perpetrated by her uncle, the defendant. Through all, the victim never wavered as to her basic allegations. We see no reason to disturb the judgment of the trial court in this instance. The victim’s testimony and defendant’s confession more than adequately corroborated each other to sustain defendant’s convictions. See People v. Webb (1987), 153 Ill. App. 3d 1055, 506 N.E.2d 801.

Defendant next argues the trial court erred in sustaining, on relevancy grounds, the State’s objection to evidence of a medical examination finding a lack of penetration. We disagree. We first note defendant failed to preserve this issue for appeal by failing to file a post-trial motion. (See Enoch, 122 Ill. 2d at 185-86, 522 N.E.2d at 1129; People v. Friesland (1985), 109 Ill. 2d 369, 374, 488 N.E.2d 261, 262.) Unlike the prior sufficiency of evidence contention, defendant’s second argument on appeal presents no exception to the waiver rule. We address the issue in any event, finding no merit to his claim.

During defendant’s cross-examination of the DCFS investigator, defense counsel attempted to present evidence through the use of a report of a medical examination conducted upon the victim some two months after the assault, which report had been reviewed by the DCFS investigator in assessing the case, to rebut the victim’s allegation that penetration occurred. In short, defendant attempted to have a social worker testify about the results of an examination performed by a physician. Such rank hearsay simply is not admissible. (See McNichols, 139 Ill. App. 3d at 955-56, 487 N.E.2d at 1259.) We find no abuse of the trial court’s discretion in excluding the evidence offered in such a manner. (See Fleagle, 129 Ill. App. 3d at 305, 472 N.E.2d at 160. See also Daniels, 164 Ill. App. 3d at 1078, 518 N.E.2d at 685.) More importantly, the question of whether penile penetration in the commonly understood sense occurred is irrelevant. Sexual penetration under the aggravated criminal sexual assault statute is defined as any contact, however slight, between a sex organ of one person and a sex organ of another person. (See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).) Defendant was charged with placing his penis on the victim’s vagina. The lack of physical evidence of actual penile penetration therefore was not fatal to the State’s case. (See People v. DuPree (1987), 161 Ill. App. 3d 951, 961, 514 N.E.2d 583, 589. See also People v. Winfield (1987), 160 Ill. App. 3d 983, 996, 513 N.E.2d 1032, 1039-40; People v. Hope (1986), 142 Ill. App. 3d 171, 174-75, 491 N.E.2d 785, 787-88.) Such evidence simply was not necessary in this instance. Furthermore, given the fact the examination occurred some two months after the assault, it is not surprising no evidence of penetration was found. Any possible error in excluding the evidence therefore was harmless.

For the aforementioned reasons, we affirm the judgment of the circuit court of Williamson County.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY W. NEWBOLDS, Defendant-Appellant.
    Fifth District
    No. 5—88—0709
    Opinion filed March 1, 1990.
    Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Robert W. Mueller, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant escaped from the Williamson County jail while being held there after he had been found guilty of, but not yet sentenced for, unlawful use of weapons by a felon.

Defendant was charged with escape. The information charged that he had escaped on June 23, 1988,

“in that [defendant] having been convicted of the offense of Unlawful Use of Weapons by a Felon *** intentionally escaped from the Williamson County Jail.”

Section 31 — 6(a) of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 31 — 6(a)) provides:

“A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony ***.”

Defendant appeals, contending that he had only been found guilty, but was not convicted, and therefore, his conviction for escape must be reversed. He argues that there can be no conviction until sentence is imposed, and a mere finding of guilt is not a conviction, and he points to section 2 — 5 of the Criminal Code of 1961 and section 5 — 1— 5 of the Unified Code of Corrections which define “conviction” as follows:

“ ‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.” Ill. Rev. Stat. 1987, ch. 38, pars. 2 — 5, 1005— 1-5.

The adoption of defendant's way of reading the statute leads to this result: a person who has been sentenced for a felony can commit a felonious escape; a person who is in jail awaiting trial for a felony can commit a felonious escape; but, a person who has been found guilty of a felony but who has not yet been sentenced cannot commit escape, felonious or otherwise.

Focusing on the statute, it may be viewed as if it were a spectrum. If it is read as defendant urges, the spectrum of those capable of escape consists of two bands. One band in the spectrum is made up of all those who have been arrested, but are awaiting trial. The remaining band is made up of all those who have been sentenced. But, between these bands is a black hole — and that black hole is made up by those who have been found guilty, but not yet sentenced. Defendant argues, therefore, that none who are in this black hole are capable of committing escape.

Instead of this reading, we see the statute as intending to render all who are arrested and in jail capable of committing escape. The statute should be read with the disjunctive “or” not being a word of exclusion, but rather one that extends the spectrum upward from the pastel hue of “arrest,” through the brighter, more primary shade “arrested, tried, found guilty, but not yet sentenced” and on upward still to the shining, neon brilliance of “tried, found guilty and sentenced.” Read this way, there is no black hole. The law should presume against black holes being found smack in the middle of a statute; after all, the other parts eventually gravitate toward the black hole, which inevitably will swallow the intention of the legislature.

Defendant’s conduct falls within the proscription of the statute, his argument to the contrary notwithstanding. See People v. Pruitt (1976), 45 Ill. App. 3d 399, 400, 359 N.E.2d 1051, 1052.

Defendant lastly contends that the imposition of an extended term to be served consecutively to his conviction for unlawful use of firearm by a felon is an abuse of discretion. Defendant’s conviction for escape is a Class 2 felony, which is usually punishable by a determinate penal sentence of not less than three years’ and not more than seven years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 31— 6(a), 1005 — 8—1(a)(5).) Due to defendant’s conviction in 1980 for burglary, a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(b)), defendant was eligible to be sentenced to an extended determinate penal sentence of not less than seven years’ and not more than 14 years’ imprisonment. Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 5— 3.2(b)(1), 1005 — 8—2(a)(4).

The presentence report reveals an extensive history of criminality in addition to the burglary conviction: 1980, attempted escape, Florida, one-year suspended sentence; two theft convictions in Illinois; 1983, two counts of aggravated battery, two consecutive five-year terms of imprisonment; 1988, 364 days’ imprisonment, battery; and 1988, unlawful use of weapons by a felon, nine years’ imprisonment. He has juvenile adjudications starting from the time he was 13.

In sentencing defendant, the court stated:

“You’re going to have to receive some punishment. Society has to be protected against these wrong-doings. You are not prone to want to live in society and obey the rules. You have a variety of things here — you have escape, an attempted escape, burglary, two counts of theft, plus other things. I don’t know what you might get into next, if anything. But there is before me a history of your having been prone to want to violate the criminal laws and not get along in organized society. You have not seemingly corrected that in anyway. One comes on the heel of another.”

Defendant contends that the trial court failed to consider his excellent work record. The presentence report indicates that defendant operated a body shop during the three months he was on mandatory supervised release. So he worked three months. That still did not stop him from committing unlawful use of weapons by a felon soon after being released from prison. A Menard Correctional Center employee told the probation officer that defendant was a hard worker on a construction crew and that he was allowed to work outside of the fence. That is good so far as it goes. But it does not change the fact that his criminal record does not spark hope of his early rehabilitation. An ability to conform to the rules of the Department of Corrections reveals nothing about a defendant’s character except that the defendant can exist in the highly structured environment of a prison without endangering others. See Franklin v. Lynaugh (1988), 487 U.S. 164, 185, 101 L. Ed. 2d 155, 173, 108 S. Ct. 2320, 2332 (O’Connor, J., concurring).

Defendant lastly contends that the court should have given more weight to his trial defense that he escaped because he was concerned that his fiancee was abusing drugs and alcohol, which led to the neglect of her 11-year-old son. The court did consider defendant’s trial testimony concerning the reasons for escape; however, it could also have rejected those reasons, as well as defendant’s statement that he intended to return to jail, as self-serving. It is not the function of this court to reweigh the factors which led to the imposition of the sentence. (People v. Joy (1986), 150 Ill. App. 3d 310, 318, 501 N.E.2d 1325, 1331.) Defendant’s almost constant contact with the criminal justice system since the age of 13 renders this court unable to find that the sentence is an abuse of discretion. (See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) This court cannot hold that the trial court erred in imposing both a consecutive and extended-term sentence to protect the public from further criminal activity by defendant. See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 4(b).

The judgment of the circuit court is affirmed.

Affirmed.

LEWIS, P.J., and WELCH, J., concur.


text:
    STEPHANIE PAGLIA, a Minor, by Her Father and Next Friend, Larry Paglia, et al., Plaintiffs-Appellees, v. KENNETH V. GOODMAN, JR., et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0113
    Opinion filed March 1, 1990.

      Kim Roger Luther, of St. Louis, Missouri, for appellants Emergency Medical Care, Inc., and Kenneth V. Goodman, Jr.
    Mary Anne Mellow, of Shepherd, Sandberg & Phoenix, of St. Louis, Missouri, for appellant Memorial Hospital of Carbondale.
    Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville (Thomas Q. Keefe, Jr., of counsel), for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

We affirm the St. Clair County circuit court’s denial of defendants’ motion to transfer this case from St. Clair County to Jackson County on grounds of forum non conveniens.

Five-year-old Stephanie Paglia was treated in the emergency room at Memorial Hospital of Carbondale, in Jackson County, Illinois. Complications caused her to be transferred to Children’s Hospital in St. Louis, Missouri, where she eventually had a leg amputated. She, through her father, and her father in his own right, sued defendants in St. Clair County claiming that the medical negligence of defendants in treating her in Carbondale caused her to lose her leg. Defendant Kenneth Goodman, Jr., M.D., the emergency room physician, was working at Memorial Hospital of Carbondale pursuant to a contract between the hospital and his employer, Emergency Medical Care, Inc. (EMC).

In support of its order denying defendants’ motion for transfer on the grounds of forum non conveniens, the circuit court found that: (1) plaintiffs are residents of St. Louis County, Missouri; (2) defendants Goodman and EMC are residents of St. Louis County, Missouri; (3) EMC does substantial amounts of business in St. Clair County, Illinois; (4) there would be very little evidence adduced from Jackson County, Illinois, or adjoining counties; (5) minor plaintiff received the substantial portion of her treatment at Children’s Hospital in St. Louis, Missouri; (6) there are a significant number of -witnesses from Children’s Hospital who reasonably would be expected to testify as to both liability and damages; (7) plaintiffs’ expert testimony will come from a witness located in St. Louis, Missouri; and (8) “out of town” experts, if any, will have easier access to St. Clair County than Jackson County given the proximity of Lambert International Airport. The record supports the circuit court’s findings.

Whether a forum non conveniens motion should be granted or denied rests with the sound discretion of the circuit court. (Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 494 N.E.2d 1206.) In reviewing the circuit court’s decision, we are not concerned with whether the circuit court exercised its discretion wisely, but only with whether its discretion has been abused. (Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694.) Accordingly, the circuit court’s decision will be set aside “only if it is shown that the court abused discretion in weighing the relevant considerations.” Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 118, 497 N.E.2d 745, 747.

When deciding whether forum non conveniens applies, a court must balance private interest factors “affecting the convenience of the litigants” and public interest factors “affecting the administration of the courts.” (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 224-25, 506 N.E.2d 1291, 1294-95.) In Bland, the Illinois Supreme Court set forth the various factors to be considered by the circuit court when deciding a forum non conveniens motion:

“Factors relating to the private interests of the litigants include the ‘relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of case easy, expeditious and inexpensive.’ [Citation.]
Public factors relevant here include the administrative difficulties flowing from court congestion; ‘a local interest in having localized controversies decided at home’; and the unfairness of burdening citizens in an unrelated forum with jury duty. [Citations.]
‘If there are sufficient factors that favor the plaintiff’s choice of forum, then the defendant’s inconvenience should not be considered, provided venue is proper. For unless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutory right to choose his forum. [Citation.]”
Bland, 116 Ill. 2d at 224-25, 506 N.E.2d at 1294-95.

Here, we do not find that the “balance strongly favors the defendant^]. ” Instead, we find that “there are sufficient factors favoring plaintiffs’] choice of forum.” For instance, because a vast majority of the medical records are located in St. Louis County, clearly St. Clair County has greater “ease of access to sources of proof” than does Jackson County. Further, while we note that Illinois courts cannot compel any witnesses from Missouri to testify at trial, we also note that if those witnesses were to testify, “the cost of obtaining attendance of willing witnesses” would favor St. Clair County.

Defendants argue that because plaintiffs have chosen a forum of which they are not residents, their choice should be afforded little deference. Little deference, however, does not mean no deference, and “we must still presume that plaintiff has chosen the forum because it is convenient to her, especially where she is not a resident of the State of Illinois and her counsel have their offices in the chosen forum.” Hoffmeister v. K mart Corp. (1989), 181 Ill. App. 3d 739, 742-43, 537 N.E.2d 460, 462.

A cause should be transferred on forum non conveniens grounds only in exceptional circumstances when it has been shown that the interests of justice require a trial in a more convenient forum. (Torres v. Walsh (1983), 98 Ill. 2d 338, 346, 456 N.E.2d 601, 605.) The record before us does not establish that the cause before us is such a case. We find no abuse of discretion in the circuit court’s denial of defendants’ motion to transfer on the grounds of forum non conveniens.

Therefore, the order of the circuit court is affirmed.

Affirmed.

LEWIS, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY K. LAWLER, Defendant-Appellant.
    Fifth District
    No. 5—88—0139
    Opinion filed February 28, 1990.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Paul Hillis, State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, Stanley K. Lawler, was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1)) and was sentenced to 12 years in the Department of Corrections. In this cause defendant raises the following issues: (1) whether defendant was denied a fair trial because the jury was allowed to hear the content of a telephone conversation between the complaining witness and her father in which she alleged that she was being abducted by an armed man, and (2) whether defendant was denied a fair trial because the trial court allowed the jury to consider defendant’s 1979 robbery and aggravated battery convictions. We reverse and remand.

The complaining witness, age 21, was the first witness to testify. She told the jury that on the evening of July 17, 1987, her son went to visit his father, the victim’s first husband. The victim lived in Shat-tuc with her second husband, and her ex-husband lived in Mt. Vernon. According to the victim, this was only the second time her son had an overnight visitation with his father. She was concerned and called her ex-husband several times to check on her son. Her telephone calls were not answered. The victim called her father and asked him to accompany her to Mt. Vernon to check on her son, but her father declined to go along with her. She then went by herself to Mt. Vernon. The victim stated she arrived in Mt. Vernon at approximately 12 a.m. on July 18, and went to her ex-husband’s house, but no one answered the door. She also made several phone calls to her ex-husband’s house from a convenience store in Mt. Vernon. She was not able to reach her husband. Between 3:30 and 4 a.m., she decided to drive back to Shattuc.

On her way back, she stated, a car pulled into the left lane as if to pass her. The driver of this car was defendant. When defendant was alongside the victim’s vehicle, he rolled down his window and told her that her driver’s side rear tire was wobbling and about to come off. The victim had hit a pothole earlier in the evening and was concerned that this had caused some damage. The victim pulled into a nearby empty parking lot in order to check her tire. Defendant pulled in behind her, parked his car, and walked toward her car. Defendant told her that her left wheel was about to fall off. The victim opened her door and checked the tire, but could see nothing wrong with it. Defendant told her it was the other tire, so the victim got out of her car, and she and defendant examined the rear wheels. The victim saw nothing unusual, so she went back inside her car. Before she could shut her door, defendant drew a pistol from his waistband and told the victim to move to the passenger side of the car. Defendant then got into the car with her and drove back toward the interstate. Defendant had the gun on the driver’s seat between his legs. The victim then attempted to deceive defendant by telling him that her ex-husband had stolen her child, that a search party was looking for her son, and that she needed to call her father to let him know where she was or the search party would begin looking for her as well. Defendant drove the victim’s car to a pay telephone at a Hen House Restaurant located off the interstate and allowed the victim to make a phone call. She testified that she called her father collect while defendant was standing behind her. The victim stated that she wanted to let her father know something was wrong and that she was in trouble, so she told her father that her ex-husband had taken her son and that her father should get the “police out looking.” In order to alert him that something was amiss, she asked if Liz and Dave were there. Liz and Dave were fictitious names she used to make her father suspicious. He did become suspicious and then asked her a series of questions about who she was with, to which the victim generally answered “Yes” or “No.” Her father learned that she was with an armed “weirdo” and that she was between Centraba and Mt. Vernon and could not get away. Her father suggested that she should try to get defendant, to take her to Hardee’s Restaurant in Mt. Vernon. Her father stated that he would have the police there waiting for her.

After the victim got off the telephone, she and defendant returned to her car and drove to an isolated location. Defendant then exited the vehicle and walked to the front of it. The victim was unsure where the pistol was at this time and hoped that defendant had left it in the car. She then moved to the driver’s seat and attempted to start the car. Before the victim could drive away, defendant put the gun to her head and stated, “You fucked up now, bitch.” Defendant then reached in and took the keys out of the ignition and pulled the victim into the back seat and forced her to disrobe. According to the victim, defendant then penetrated her vagina with his penis. The victim informed defendant that she was not using birth control and asked defendant not to ejaculate in her. Defendant complied with her request and ejaculated in a towel the victim had in her car. Defendant told the victim she was very attractive and that it was a shame that he was going to have to kill her. Defendant also asked her if she had ever been raped before. The victim then put her clothes on and exited the vehicle in order to urinate.

When the victim got back in the car she told defendant she was sorry she had not been a better sexual partner, but that she was very hungry and promised defendant she would be better if she got something to eat. She then suggested that they drive to Hardee’s in Mt. Vernon, but defendant said that Hardee’s in Centraba was closer. On the way there, defendant stopped back by his car to roll up his windows. A large, black car followed them into the parking lot where defendant had left his car. The victim opened the passenger door and jumped from her door. She then noticed that the black car was her father’s car. She ran back to her father’s car and jumped into it, telling her father, “Shoot him, Dad. Shoot him.” Defendant then drove off in her car. The victim pointed out defendant’s car to her father, and her father drove back to defendant’s car. Her mother then wrote down the license plate number.

The victim identified People’s exhibit No. 1, a Taurus 9 millimeter automatic, as the gun that defendant used to abduct her. She testified that she did not consent to have sex with defendant, but did so only to save her life.

Lori Lawler, defendant’s wife, testified that on July 17, 1987, defendant came home from work between 6:45 and 7 p.m. and told her that he had to leave again to go to Indianapolis as part of his job as a truck driver. Defendant ate dinner, took a shower, and then left again. Before defendant left his house he placed his gun, a Taurus 9 millimeter automatic, which had been on top of the refrigerator, in the Lawlers’ bedroom closet. Mrs. Lawler did not see her husband take the gun out of the house on July 17. On the evening of July 17, Mrs. Lawler spent the night at her mother-in-law’s home. She was afraid to spend the night alone because of a recent unsolved murder in the area. Mrs. Lawler went home on the morning of July 18 to get some clothes for her children. At her father-in-law’s suggestion, she also retrieved the gun, which was still in the closet. The following Monday morning, Detective Leming of the Department of Criminal Investigation asked her for the gun and she gave it to him.

Detective Leming testified that he took the victim’s car to Ronald Durr, an auto body repair man. Mr. Durr testified as an expert that on July 18, 1987, he checked the victim’s rear tires and found no wobble. Detective Leming also testified that he did not detect a wobble.

The victim’s father testified that in the early morning hours of July 18, 1987, he received a telephone call from his daughter. He testified that the conversation was unusual and made him suspicious. He began asking his daughter a series of questions that could be answered with a “Yes” or “No” and found out that she was with an armed “weirdo” she did not know and that she could not get away. Through the conversation, he determined that she was somewhere between Centralia and Mt. Vernon. He then got a gun, and he and his wife picked up the victim’s current husband. The trio then began searching for her. On the east side of Centralia, the father saw what he thought was the victim’s car. He followed the car into a parking lot and then stopped his car, blocking the parking lot exit. He saw the victim jump from the passenger side of her car. The victim told him to shoot, so he fired a shot into the air. The victim got into his car and was hysterical. She was crying and shaking. As they drove away, the victim pointed out defendant's car. He had his wife write down the license plate number. He then took his daughter to the police station.

The mother related the same account as her husband. The victim’s husband also described the same version of events.

Sandra Rutledge, a registered nurse at the hospital where the complaining witness was taken on the morning of July 18, 1987, testified that the victim was brought into the hospital at approximately 5:30 a.m. According to Rutledge, the -victim was hysterical and crying, but had no physical injuries. Nurse Rutledge remained with the victim for approximately two hours. According to Rutledge, the victim was upset the entire time.

At 6:33 a.m. on July 18, 1987, State Trooper Thomas Olivero observed a car with the license plate number reported by the victim’s father. The vehicle was spotted on Harmony Road in Mt. Vernon. After being stopped, defendant was taken to the police station and made a tape-recorded statement which was played to the jury. In the tape, defendant stated that he was driving in the Centralia area between 10 p.m. on July 17 and 4 a.m. on July 18. At approximately 4 a.m., he saw an automobile with a badly vibrating rear tire. He flashed his headlights and honked his horn in order to alert the driver of the car with the wobbling tire that the car had a problem. The car pulled over and he followed it. Defendant then got out of his car and walked up to the driver of the car, who was crying. Defendant told the driver that her rear tire was wobbling. The driver got out of her ear and both checked the tires, but found nothing wrong. The driver then told him that her name was Becky and that her ex-husband had her child. She asked defendant to help her find them by driving her car because she was too upset. Defendant agreed. He then drove her in the direction she indicated, and, at her request, stopped the car so that she could make a phone call. After the call, she told him she was lonely and cold. Defendant then gave her his jacket. She then embraced him and kissed him. After caressing each other for some time, Becky asked him to have sex with her. He drove to an isolated area where he parked the car and had sex. Becky told defendant she was not on the pill and asked him to ejaculate into a towel. Defendant complied with Becky’s request. Defendant told the police that the towel was still in the car.

As the two were driving back to Centraba, defendant told her that he had to stop and roll up his windows. As they drove into the parking lot where defendant’s car was parked, a large, black car followed them. The driver of this car jumped out with a pistol and fired it into the air. Defendant thought it was Becky’s husband, so he stopped the car, and Becky got out. Defendant drove away. He later returned and picked up his own car and left Becky’s car in the lot. Defendant then drove home. Defendant stated that he did not threaten her, nor was he carrying a gun.

At trial, defendant testified in his own behalf. His testimony was consistent with the recorded statement made after his arrest. He also testified that he did not pay attention to the content of the victim’s telephone conversation with her father. He stated that he did not go to the police after shots were fired because he was afraid that his wife would find out about his sexual encounter. On cross-examination, defendant admitted that he told Detective Leming that the reason he went out on the evening of July 17, 1987, was to get some sex. He told Detective Leming that his' wife had just had a baby and they had not been able to have sex for six weeks to two months.

David Winters, pastor of defendant’s church, testified that defendant had a good reputation in the community for peacefulness and truthfulness.

Defendant’s first issue on appeal is whether defendant was denied a fair trial because the jury was allowed to hear the content of a telephone conversation between the complaining witness and her father in which the complaining witness alleged she was being abducted by an armed man. Defendant contends that he was denied a fair trial because discussion of the conversation contained information that was both hearsay and a prior consistent statement. Defendant further argues that the error was compounded by the prosecutor’s closing argument, in which the prosecutor claimed that the conversation was substantive evidence. In reply, the State contends that the content of the call was admissible as an exception to the hearsay rule for three reasons: (1) the call reflected the victim’s state of mind on a material issue, (2) the call was a spontaneous declaration, and (3) it was a prompt complaint of rape.

In the instant case, the jury heard testimony from the complaining witness that she convinced defendant to allow her to make a telephone call to her father by claiming her ex-husband had kidnaped her child and a search was being conducted. The complaining witness convinced defendant that if she did not call her father, he would become suspicious by her absence. During the telephone call, the complaining witness asked her father if Liz and Dave were still at home. Liz and Dave were fictitious names designed by the victim to make her father suspicious. The victim also told her father to get the “police out looking.” Once her father became suspicious, he asked her a series of leading questions in order to find out her situation. By answering her father’s questions with a “Yes” or “No,” the victim informed her father (1) that she was “alone” with a “weirdo” who was “armed,” (2) that she was “in trouble,” (3) that she could not get away, and (4) that she was “sort of” in between Centraba and Mt. Vernon. The defense made a motion in limine to keep these statements out of evidence. The trial court denied defendant’s motion in limine, finding that the statement was not hearsay since it was a device and not an assertion of the truth. In the alternative, the trial court held that it was a spontaneous utterance. The State, however, clearly chose the alternative ruling that this was a spontaneous utterance as evidenced by arguments made by the prosecutor during closing. Specifically, the prosecutor stated:

“Now, [the victim] testified that she was abducted by Stanley Lawler, that he showed a gun. She says he showed a gun. She called her father, told her father he was armed. You heard her father testify that she called, she was excited, she said in response to his questions, ‘Are you with a weirdo?’ ‘Yes.’ ‘Is he armed?’ ‘Yes.’ In the course of the very offense itself she managed to cry for help to her father and tell him that this man had a weapon, that he was armed and that she was with a weirdo. Obviously not consenting to this act if she’s crying for help. Okay. There’s abundant evidence that he had a weapon.”

It is clear from this statement that the prosecutor was arguing that the content of the conversation was factual. Therefore, the conversation was hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless it falls within an exception to the hearsay rule. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) The State urges that the victim’s statement is an exception to the hearsay rule because it qualified as a spontaneous utterance. The trial court also ruled that these statements were spontaneous utterances.

The requirements for admissibility under the spontaneous declaration exception to the hearsay rule are: an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; absence of time to fabricate; and a statement relating to the circumstances of the occurrence. (People v. Watts (1985), 139 Ill. App. 3d 837, 850, 487 N.E.2d 1077, 1086; People v. Damen (1963), 28 Ill. 2d 464, 471, 193 N.E.2d 25, 29.) In deciding whether the declarant acted without thought, the court is required to consider all circumstances surrounding the making of the statement. (Watts, 139 Ill. App. 3d at 850, 487 N.E.2d at 1086.) In the instant case, the victim herself admitted that the conversation was a fabrication to put her father on notice that something was awry. The following excerpt of the victim’s testimony in response to questioning by the assistant State’s Attorney clearly indicates that her conversation was fabricated:

“Q. Were you able to reach your father?
A. Yes.
Q. And did you talk to your father?
A. Yes, I did.
Q. While you talked to your father, where was Mr. Lawler?
A. He was standing behind me at the phone, was at my left ear, and he was over here.
Q. When you reached your father, what happened on the phone?
A. Well, I wanted to get across to him that there was something wrong and that I was in trouble. So I started with the story that my ex-husband had taken my, you know, son and to get the police out looking.
Q. And how did your father respond to that?
A. He didn’t know what I was talking about. He was — I still tried to get it across to him by saying, ‘Is Liz and Dave there?’
Q. Who are Liz and Dave?
A. I have no idea. I just made those names up so he would get suspicious.
Q. How did he respond when you started telling him about Liz and Dave?
A. He started to get concerned, because he doesn’t know any Liz and Dave.
Q. Okay. When he got concerned, what did he say?
A. He asked me if I was alone, if I was in trouble.
Q. And what did you say?
A. ‘Yes.’
Q. Did he ask you anything else?
A. He asked me if there was a weirdo with me, and I said ‘Yes.’
Q. Did he ask you anything else?
A. If he was armed.
Q. And what did you say?
A. ‘Yes.’
Q. What else took place in this conversation?
A. He asked me if I could, you know, get away, if he was in control.
Q. I’m sorry. I didn’t hear that. Would you—
A. He asked me if I could get away, if, you know — and I said ‘No.’
Q. How were you responding? Were you in a position where you could talk?
A. No. I was just answering yes or no.
Q. And after he asked if you could get away, did he say anything else?
A. He told me that he would get the police to go to Har-dee’s in Mt. Vernon. He tried to get out of me where I was at, but I could only answer yes or no. And he asked me if I was in Centralia, and I said ‘No.’ And then he asked me if I was in Mt. Vernon, and I said ‘No.’ And he asked me if I was somewhere in between, and I said, ‘Sort of.’ And then I tried to get across to him the Hen House by telling him to have Mom make me some chicken so when I get home — but he didn’t catch onto that part.
Q. So what was he able to say about going to Mt. Vernon?
A. He told me to try to get to Mt. Vernon at their Hardee’s and that he would call the police and have them there waiting.
Q. Was anything else said over the phone?
A. Not that I can recall right offhand.”

We agree with defendant that this conversation between the victim and her father was not a spontaneous declaration and should not have been admitted into evidence to prove the truth of the contents of the conversation. The victim not only had time to reflect upon her statements, but also, by her own admission, fabricated the contents of the conversation. She also stated that she could not talk openly because defendant was nearby and could only answer “Yes” or “No.” We agree that even if a statement has been made in response to a question, that does not itself deprive an utterance of the spontaneity necessary to allow its admissibility. (People v. Watts (1985), 139 Ill. App. 3d 837, 850, 487 N.E.2d 1077, 1086.) In general, however, this occurs when a victim is asked a question such as “What happened?” The key inquiry in deciding whether such a statement should have been admitted is whether the statement would have been made if the questions had not been asked. People v. Taylor (1971), 48 Ill. 2d 91, 97, 268 N.E.2d 865, 868; Watts, 139 Ill. App. 3d at 850, 487 N.E.2d at 1086.

In view of the entire context in which this conversation took place, especially the unrefuted fact that defendant was standing near the complainant as she made the telephone call, we cannot say whether the same statements would have been made had the questions not been asked. Moreover, the complaining witness was in large part answering “Yes” or “No” to a series of questions. Her father clearly controlled the content of this conversation.

We now address the State’s two additional arguments. First, the State contends that the conversation was admissible as evidence of the victim’s state of mind because the conversation goes to show that the complaining witness believed that she was forced into the act, not that she consented as defendant theorized. Statements indicating a declarant’s state of mind are admissible as exceptions to the hearsay rule only if the declarant was unavailable and there existed a reasonable probability that the testimony was truthful. People v. Silvestri (1986), 148 Ill. App. 3d 980, 984, 500 N.E.2d 456, 460; People v. Bryant (1984), 123 Ill. App. 3d 266, 275, 462 N.E.2d 780, 785.

In light of the conclusion that this conversation was indeed fabricated, we find that the conversation cannot be admitted to prove the victim’s state of mind.

Second, the State also contended that the conversation was admissible as a prompt complaint of rape. While statements qualifying under this rule may also be admissible as a spontaneous declaration, statements by the victim as to what occurred, which are made at a time too remote to qualify as a spontaneous declaration, or sufficient opportunity for “reflection and intervention” having intervened, may gain admission as a corroborative statement. (People v. Damen (1963), 28 Ill. 2d 464, 472, 193 N.E.2d 25, 30.) The basis of such a statement’s admission is that it is entirely natural that the victim of a foreible rape would have spoken out regarding it, and the fact that she did not do so would, in effect, be evidence of the fact that nothing violent had occurred. Damen, 28 Ill. 2d at 472, 193 N.E.2d at 30.

The situation in the instant case is much different from the usual complaint allowed into evidence under this exception to the hearsay rule. In fact, in the instant case, the victim, by her own admission, had not been raped when this conversation occurred. Therefore, we find that the conversation cannot be considered a prompt complaint of rape.

Because the conversation does not fit under any exception to the hearsay rule, the prosecutor’s remarks during closing argument that the conversation was admitted to prove that defendant was armed and that the victim could not get away was clearly improper. Where guilt or innocence depends entirely on the credibility of an accuser and the defendant, no error should be permitted to intervene. (People v. Emerson (1983), 97 Ill. 2d 487, 502, 455 N.E.2d 41, 47.) As the facts indicate, the instant case clearly hinged on the credibility of defendant and the victim. Where error is shown to exist, a reversal is mandatory, unless the record affirmatively shows that the error was not prejudicial. (Emerson, 97 Ill. 2d at 502, 455 N.E.2d at 47.) Here, the record fails to show that the improperly admitted testimony and the improper oral argument were harmless. The judgment must, therefore, be reversed and the cause remanded for a new trial.

We also feel compelled to answer defendant’s second issue, whether defendant was denied a fair trial because the trial court permitted the jury to consider his 1979 robbery and aggravated battery convictions. We are so compelled because defendant’s prior convictions will obviously be at issue again. Defendant contends the trial court erred in denying a motion in limine to keep out his two prior convictions. Furthermore, defendant contends that the prosecutor’s remarks during closing that the prior convictions created a presumption that defendant was willing to lie constituted reversible error. We agree that the prosecutor’s remarks were impermissible.

It is a fundamental concept in our criminal justice system that evidence of past crimes is not admissible to prove defendant’s disposition to commit the crime charged. (People v. Wright (1977), 51 Ill. App. 3d 461, 366 N.E.2d 1058.) If a prior conviction is for a felony or a crime involving dishonesty, the trial court has the discretion to allow the conviction to be introduced into evidence to impeach the defendant if the trial court believes the prejudicial effect of the impeachment is outweighed by its probative value on the issue of credibility. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Evidence of a conviction used to impeach a witness is not admissible if more than 10 years have elapsed since the date of the conviction or the release of the witness from confinement, whichever is the later date. Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.

In the present case, defendant’s prior felonies occurred in 1979. He was tried for the instant offense in 1988, so less than 10 years had elapsed since his date of conviction. Moreover, defendant was released from prison on the 1979 convictions in 1986; therefore, his convictions under the Montgomery rule were only two years old at the time of trial and admissible. Whether these convictions are of probative value is a discretionary decision by the trial court, and we find in this case that the trial court did not abuse its discretion.

We agree with defendant, however, that improper argument was made by the prosecutor during closing. Defendant argues that several remarks made by the prosecutor were improper, but we find only the following comment requires discussion. During closing argument, the prosecutor stated:

“Now, what the commission of prior — of a couple of prior felonies tends to show is that he is not telling the truth, because if a person is willing to violate the law to commit a felony, then the law presumes that he is willing to lie.”

This remark clearly distorted the law. Prior convictions are evidence that can be used to impeach a defendant, but they certainly do not create a “presumption” that a defendant is willing to lie. It is well established that a prosecutor’s misstatements of the law in closing argument can be grounds for reversal. (People v. Crossno (1981), 93 Ill. App. 3d 808, 821, 417 N.E.2d 827, 836.) Again, because this case hinged on the credibility of defendant and the victim, we cannot say that the prosecutor’s improper argument did not contribute to defendant’s conviction. Accordingly, we find that defendant was deprived of a fair trial because of improper remarks by the prosecutor during closing argument.

For the foregoing reasons, the judgment of the circuit court of Marion County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

HARRISON and WELCH, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE ex rel. THE VILLAGE OF NORTHBROOK, Plaintiff-Appellant and Cross-Appellee, v. THE VILLAGE OF GLENVIEW, Defendant-Appellee and Cross-Appellant.
    First District (6th Division)
    Nos. 1—88—3448, 1—88—3449 cons.
    Opinion filed September 8, 1989.

      Burke, Bosselman & Weaver, of Chicago (Clifford L. Weaver, Steven M. Elros, Victor P. Filippini, Jr., and David A. Lochbihler, of counsel), for appellant.
    Klein, Thorpe & Jenkins, Ltd., of Chicago, and Jeffrey M. Randall, of Randall, Gayle & Patt, of Waukegan, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, the Village of Northbrook, and defendant, the Village of Glenview, both sought to annex the same property, designated as parcels 7, 8, 9, 10, 11 and 12, and subsequently filed these quo warranto actions pursuant to section 18 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 18 — 101 et seq.). The parties filed cross-motions for summary judgment. The trial court entered summary judgment in favor of Glenview with respect to parcels 9, 10, 11 and 12 and entered summary judgment in favor of Northbrook with respect to parcels 7 and 8. Northbrook appeals, and Glenview cross-appeals. Each seeks the right to annex all six parcels, and each contends that it attained exclusive jurisdictional priority over the property. Northbrook also contends that Glenview’s annexation proceedings suffer from fatal procedural defects.

The unincorporated territory totals less than 60 acres and is surrounded by the village boundaries of Northbrook and Glenview, as shown in the diagram contained in the appendix to this opinion.

On February 1, 2 and 3, 1988, Northbrook published notices regarding the annexation of the property at issue in the Chicago Tribune pursuant to section 7 — 1—13 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—13) (involuntary annexation provision).

On February 3, Northbrook notified the trustees of the Northbrook and Glenbrook rural fire protection districts in writing by certified mail that Northbrook’s board of trustees would consider the annexation on February 15, 1988.

On February 11 and 12, Glenview received petitions signed by all owners and electors residing in the disputed territory, requesting annexation of the property by Glenview, pursuant to section 7 — 1—8. Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8 (voluntary annexation provision).

On February 15, Northbrook held its board of trustees’ meeting. By unanimous vote, the board adopted an ordinance annexing the property. On February 16, Northbrook published the ordinance. On the same day, Northbrook recorded the ordinance and affidavits of service to the fire protection districts with the recorder of deeds.

On February 18 and 19, Glenview personally served the trustees of the Northbrook and Glenbrook rural fire protection districts with notice of Glenview’s consideration of an ordinance to annex the disputed property.

On March 1, Glenview adopted four annexation ordinances, including all of the disputed property. On March 2, Glenview recorded the ordinances with certifications of notice signed by its village clerk. On March 2, Northbrook asked the Attorney General of Illinois and the Cook County State’s Attorney to bring quo warranto actions against Glenview, but those officials refused to do so, stating it was a local matter.

On March 9, Northbrook sought leave to bring this action in the trial court. On March 25, Glenview sought leave to bring its action. The trial court granted both villages leave to file quo warranto actions. The parties entered a stipulation of facts and filed cross-motions for summary judgment.

We first address several objections made by Northbrook regarding procedural defects in Glenview’s annexation procedures.

Northbrook complains that Glenview failed to serve proper statutory notice on the trustees of the affected fire protection districts because it used personal service rather than certified or registered mail. The trial court agreed that the notices were not served in the manner prescribed by statute, but concluded that the service was sufficient because personal service is a better form of service than certified mail.

The statute provides that when land “proposed to be annexed is part of any Fire Protection District or of any Public Library District, *** the Trustees of each District shall be notified in writing by certified or registered mail before any court hearing or other action is taken for annexation. *** No annexation of such land is effective unless service is had *** as provided in this Section.” (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1.) Glenview served the trustees of the Northbrook and Glenbrook fire protection districts by personal service, and not by certified or registered mail. None of the trustees contested the service.

We find that personal service satisfies the statutory requirement of notice by certified or registered mail. (See Matthiessen v. Board of Education of North Chicago Community High School District No. 123 (7th Cir. 1988), 857 F.2d 404 (actual notice satisfies requirement of registered mail), citing Glover v. Board of Education (1975), 62 Ill. 2d 122, 340 N.E.2d 4, and Donahoo v. Board of Education (1952), 413 Ill. 422, 109 N.E.2d 787.) Personal service constitutes full compliance with the intent of the statute and in fact satisfies the statutory purpose even more fully than the precise methods of service listed in the statute. See Donahoo v. Board of Education (1952), 346 Ill. App. 241, 104 N.E.2d 833, rev’d on other grounds (1952), 413 Ill. 422, 109 N.E.2d 787.

In arguing that the trial court erred in approving personal service, Northbrook cites People ex rel. Hopf v. Village of Bensenville (1971), 132 Ill. App. 2d 907, 272 N.E.2d 50. However, in Hopf no service was made at all.

Northbrook next complains that Glenview’s affidavit in the recorded notice was ineffective because the village clerk’s oath was not notarized. The statute provides that an “affidavit that service of notice has been had as provided by this Section must be filed with *** the recorder for the county where such land is situated. No annexation of such land is effective unless *** the affidavit [is] filed as provided in this Section.” (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1.) Glenview’s village clerk signed an affidavit stating “under oath” that due notice was given to the trustees of the fire protection districts. The statement was not notarized, but the trial court found the affidavit was in accordance with the statute.

A village clerk has the power to administer oaths and affirmations. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 9—3; see also Ill. Rev. Stat. 1987, ch. 24, par. 3 — 10—7 (clerk certifies all papers filed in the clerk’s office); Ill. Rev. Stat. 1987, ch. 110, par. 8 — 1203 (clerk certifies municipal records).) The clerk is an officer, and his acts are official. (City of Chicago v. McCoy (1891), 136 Ill. 344, 26 N.E. 363.) Thus, the statute’s requirements were sufficiently met here, despite the absence of the notarization. In view of our holding, we decline to consider Glenview’s assertion that it subsequently recorded an amended notice which was sworn to before a notary public.

Having found no procedural defects which nullify Glenview’s annexation proceedings, we proceed to address the heart of these actions, the issue of which village, Glenview or Northbrook, had jurisdictional priority in the annexation.

The general rule governing conflicting petitions to annex or incorporate the same tract of land is that the first to initiate an annexation is entitled to priority over the territory against all other parties initiating such a proceeding at a later date. In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.

Thus, in jurisdictional priority issues, priority in time is conclusive. Priority is typically determined by the time of initiation of the annexation proceedings. In some jurisdictions, the initiation turns on the first public procedural step required by the statute for the particular method used, or upon some other rule. See generally 1 C. Sands & M. Libonati, Local Government Law §8.32, at 8 — 167 (1981 & Supp. 1988).

Northbrook contends that it was first to initiate its proceeding to annex (10 days before the electors gave Glenview the voluntary petition to annex) and completed its annexation proceedings before Glen-view even served notice of its proceedings. It maintains that jurisdiction becomes exclusive in the body before which proceedings are first instituted, and that its filing of notice of involuntary annexation served as the first mandatory public procedural step which caused jurisdiction to vest in Northbrook.

Glenview counters that Northbrook’s publication of notice merely permitted the owners of the property which was to be annexed to respond to Northbrook’s proposed annexation, and that publication did not give Northbrook jurisdiction. The property owners may choose to voluntarily annex to a municipality until such time as the first municipality actually adopts its annexation ordinance. Since the owners petitioned Glenview for annexation on February 11 and 12, Northbrook’s February 15 adoption, and February 16 recording, of an ordinance annexing the property were ineffective.

The Illinois statutes provide several different methods of annexation. (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1 et seq.) Every method requires the approval of a certain percentage of owners and electors residing in the unincorporated territory proposed for annexation, except one. The owners and electors may initiate the annexation action (Ill. Rev. Stat. 1987, ch. 24, pars. 7 — 1—2, 7 — 1—5, 7 — 1—8, 7— 1 — 11, 7 — 1—12), or when the municipality initiates the proceedings, the electors must vote in a referendum on the issue (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—7). However, when a tract of land is smaller than 60 acres and is nearly surrounded by a municipality, that land may be annexed without the approval of the property owners and electors. Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—13.

We note generally that annexation statutes are usually construed liberally in favor of the public. (2 E. McQuillin, Municipal Corporations §7.14, at 422 (3d ed. 1988).) Moreover, compulsory incorporation is not favored, and therefore the question of annexation is usually referred to the inhabitants. (See 1 E. McQuillin, Municipal Corporations §3.16, at 288-89 (3d ed. 1987).) There is strong public policy that the land owners of the property to be annexed have the ultimate decision. 2 E. McQuillin, Municipal Corporations §7.16, at 435 (3d ed. 1988).

Northbrook emphasizes that annexation proceedings are within the unique province of the legislature. The courts, however, must inquire into the question of what law applies and determine and enforce the rights of the parties accordingly. See generally 2 E. McQuillin, Municipal Corporations §7.10, at 396 (3d ed. 1988), citing Elm Lawn Cemetery Co. v. Northlake (1968), 94 Ill. App. 2d 387, 237 N.E.2d 345. See also Village of Averyville v. Peoria (1929), 335 Ill. 106, 166 N.E.488.

In Illinois, the rule is that initiation of an involuntary proceeding under section 7 — 1—13 is the adoption of the ordinance, and initiation of a voluntary proceeding under section 7 — 1—8 is the filing of the owners’/electors’ petition. Thus, Illinois does not use the “first step” rule.

Just as in the present case, in People ex rel. Village of Buffalo Grove v. Village of Long Grove (1988), 173 Ill. App. 3d 946, 526 N.E.2d 670, a section 7 — 1—8 voluntary petition conflicted with a section 7— 1 — 13 involuntary annexation proceeding. Defendant published notice in the Chicago Tribune pursuant to section 7 — 1—13 of its intent to annex the land. Six days later, a voluntary petition to annex the same property was filed with plaintiff, pursuant to section 7 — 1—8. Four days later, defendant passed an ordinance annexing the land. The trial court denied plaintiff’s petition for leave to file a complaint in quo warranto. This court reversed, holding that plaintiff had standing to challenge in quo warranto defendant’s subsequent attempted annexation. The court relied on the fact that plaintiff’s voluntary annexation petition was filed before defendant passed its annexation ordinance. The court expressly rejected defendant’s argument that its publication of notice prior to the voluntary petition being filed gave it priority jurisdiction.

In Buffalo Grove, this court followed the holding in People ex rel. City of Leland Grove v. City of Springfield (1988), 166 Ill. App. 3d 943, 520 N.E.2d 1205, which also involved a conflict between a section 7— 1 — 8 voluntary annexation petition and a section 7 — 1—13 involuntary annexation proceeding. The court pointed out that the section 7 — 1—13 publication of notice was only a step preliminary to “legal initiation,” and that legal initiation under section 7 — 1—13 was the passage of the annexation ordinance. The court emphasized that the section 7 — 1—13 10-day notice requirement was meant “to protect the property owner” so the owners had “time to react,” e.g., by filing a section 7 — 1—8 voluntary petition “with another contiguous municipality to avoid being forced into the original municipality under section 7 — 1—13.” 166 Ill. App. 3d at 948, 520 N.E.2d at 1208.

The court cited “competent evidence in the record” which indicated that section 7 — 1—13 notice requirements “were apparently enacted in response to complaints by landowners *** whose land was being involuntarily annexed without notice under the prior law so that they could take whatever steps they thought were necessary to express their views.” (Leland Grove, 166 Ill. App. 3d at 948, 520 N.E.2d at 1208.) The court reasoned that if publication constituted legal initiation, it “would preclude the property owners from any effective means of preventing such an annexation,” and that “fundamental fairness dictates that the property owner must be allowed to choose between the several municipalities vested with annexation jurisdiction, as the landowner is the party most directly affected.” (Leland Grove, 166 Ill. App. 3d at 948, 520 N.E.2d at 1209.) To hold otherwise would effectively nullify the effect of the notice requirement. Leland Grove, 166 Ill. App. 3d 943, 520 N.E.2d 1205.

Northbrook relies on People ex rel. City of Prospect Heights v. Village of Arlington Heights (1988), 171 Ill. App. 3d 766, 525 N.E.2d 970. In Prospect Heights, both municipalities sought involuntary annexations pursuant to section 7 — 1—13. Arlington Heights published a notice on November 4, 1981, and Prospect Heights published a notice two days later. They both held meetings on the same night, but Prospect Heights passed its ordinances at 7:38 and 7:46 p.m., while Arlington Heights passed its ordinance after 8 p.m.

In Prospect Heights, this court found that Arlington Heights, the first village to publish notice, gained jurisdictional priority. We held that “under section 7 — 1—13, the required notice must be given prior to the adoption of the annexation ordinance. These steps are clearly jurisdictional ***.” We concluded: “By filing a notice stating that it contemplated annexing the territory, Arlington Heights initiated the proceeding for annexation of the territory in issue. Having given notice of the Village’s intent, Arlington Heights had priority and could not be ousted ***.” (Prospect Heights, 171 Ill. App. 3d at 770-71, 525 N.E.2d at 974.) We reasoned that this holding allowed for orderly annexation proceedings and avoids the problem of a “race to the courthouse.” Prospect Heights, 171 Ill. App. 3d at 772, 525 N.E.2d at 974.

In Prospect Heights, we distinguished the holding in Leland Grove that a section 7 — 1—13 proceeding is not initiated by publication of notice, but by the passage of an ordinance by the annexing municipality. In Prospect Heights, we stated: “We find that [Leland Grove] is not persuasive, as the question before that court involved determining priority between competing annexation proceedings under sections 7 — 1— 13 and 7 — 1—8, whereas here the question of priority arose between two proceedings under section 7 — 1—13.” Prospect Heights, 171 Ill. App. 3d at 772, 525 N.E.2d at 974.

In sum, we hold that Glen-view gained jurisdictional priority over Northbrook. Under People ex rel. Village of Buffalo Grove v. Village of Long Grove, priority is established when a section 7 — 1—8 voluntary annexation petition is filed. Thus, when the owners and electors residing in the disputed territory filed their petition with Glenview on February 11 and 12, Glenview gained priority over the Northbrook annexation ordinance passed on February 15 and published and recorded on February 16. Under People ex rel. City of Leland Grove v. City of Springfield, Northbrook’s February 1, 2 and 3 publication of notice was merely a preliminary step and did not constitute legal initiation for jurisdictional purposes.

By way of cross-appeal, Glenview contends that the trial court erred in finding Glenview could not annex parcels 7 and 8 because they were not contiguous to Glenview.

Section 7 — 1—8 of the Illinois Municipal Code provides that territory may be annexed if it is “contiguous to a municipality at the time of annexation.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8.) This language, adopted immediately after People ex rel. County of St. Clair v. Belleville (1981), 84 Ill. 2d 1, 417 N.E.2d 125, eliminated the effect of Belleville’s holding that the property must be contiguous “contemporaneous with the filing of the petition.” Belleville, 84 Ill. 2d at 11; see also Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—48 (permitting simultaneous annexation of multiple parcels).

It is not required that each parcel be contiguous to the annexing municipality, where the parcels are contiguous to each other and at least one tract is contiguous to the annexing municipality. See People ex rel. Village of South Barrington v. Village of Hoffman Estates (1964), 30 Ill. 2d 385, 198 N.E.2d 97. See also, e.g., Banzer v. City of Wichita (1985), 237 Kan. 798, 703 P.2d 812; Township of Midland v. Michigan State Boundary Comm’n (1977), 401 Mich. 641, 259 N.W.2d 326; Hendricks v. City of Nampa (1969), 93 Idaho 95, 456 P.2d 262; City of Bettendorf v. Abeln (1967), 261 Iowa 404, 154 N.W.2d 836. See generally Annot., What Land is Contiguous or Adjacent to Municipality so as to be Subject to Annexation, 49 A.L.R.3d 589, §5 at 604-06 (1973 & Supp. 1988) (listing decisions from numerous jurisdictions in accord with this rule); 56 Am. Jur. 2d Municipal Corporations §69, at 126 (1971) (stating rule that tracts only need to be contiguous to each other, citing People ex rel. Village of South Barrington v. Village of Hoffman Estates (1964), 30 Ill. 2d 385, 198 N.E.2d 97).

Northbrook argues that Glenview could only establish the required contiguity with parcels 7 and 8 by effectively annexing either parcel 10 or parcel 12 first.

On March 1, 1988, Glenview adopted successive annexation ordinances. The first related to parcels 9 and 10; the second related to parcels 7 and 8; and the third related to parcels 11 and 12. Northbrook maintains that because no annexation is effective until the affidavit of service is recorded under section 7 — 1—1, Glenview did not effectively annex parcels 10 or 12 until the day of recording, March 2. Thus, on March 1, the ordinance relating to annexation of parcels 7 and 8 would be invalid because on that day, they were not contiguous to Glenview’s boundaries. Northbrook also argues that Glenview did not even try to annex the land simultaneously in a single annexation proceeding under section 7 — 1—48; instead, it considered four separate annexations in seriatim proceedings. Northbrook makes these arguments without citation to any case law.

Initially we note that there is no requirement that parcels be adopted in the same ordinance, and there is no prohibition against adopting three annexation ordinances at the same meeting. Section 7— 1 — 48, permitting annexation of multiple parcels at the same time, merely refers to “a single annexation proceeding.” Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—48.

Whether Glenview adopted successive ordinances at the same meeting, or adopted a single ordinance encompassing all parcels, is not determinative of the issue here. Using either method, the rule we base our holding upon remains the same, i.e., that separate parcels need only be contiguous to each other, and need not each be contiguous to the municipality’s boundaries.

We hold that Glenview properly annexed parcels 7 and 8, and the trial court erred in finding a lack of contiguity. Thus, we reverse that portion of its judgment.

For the foregoing reasons, the order of the circuit court of Cook County granting summary judgment in favor of Glenview as to parcels 9, 10, 11 and 12 is affirmed; and the order granting summary judgment in favor of Northbrook as to parcels 7 and 8 is reversed, and the cause is remanded for further proceedings consistent with the views contained herein.

Affirmed in part, reversed in part, and remanded.

EGAN, P.J., and QUINLAN, J., concur.

APPENDIX


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW BOUNDS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0298
    Opinion filed February 9, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Mark H. Kusatzky, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Inge Fryklund and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

After a bench trial, defendant, Matthew Bounds, was convicted of possession of a stolen motor vehicle in violation of section 4— 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 4 — 103(a)(1)) and sentenced to a term of three years in prison. On appeal, he raises two issues, both involving the constitutionality of the possession of a stolen motor vehicle statute. (Ill. Rev. Stat. 1987, ch. 95V2, par. 4 — 103.) We affirm defendant’s conviction.

Defendant was convicted of possessing a stolen 1976 Chrysler automobile during the early morning hours of January 7, 1987. He contends that his conviction should be reversed because section 4 — 103(b) of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95^2, par. 4 — 103(b)), the penalty provision for possession of a stolen motor vehicle, violates: (1) the proportionate penalties guarantee of the Illinois Constitution (Ill. Const. 1970, art. I, §11) because it punishes the less serious offense of possession of a stolen motor vehicle more harshly (as a Class 2 felony) than the more serious offense of theft of a motor vehicle (a Class 3 felony under section 16 — l(eX3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(e)(3))); and (2) the due process guarantee of the Illinois Constitution (Ill. Const. 1970, art. I, §2) because it is not reasonably designed to remedy the evils of “chop shop” operations and organized motor vehicle theft which the legislature sought to remedy with this legislation.

When this appeal was first filed, there was a conflict within the appellate court over whether section 4 — 103(b) was constitutional. For instance, in People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890, the third division of the first district held section 4 — 103(b) to be unconstitutional, while in People v. Carlyle (1987), 159 Ill. App. 3d 964, 513 N.E.2d 61, the fifth division of the first district held section 4 — 103(b) to be constitutional. Before scheduled oral arguments in this appeal, later waived by defendant, our supreme court rendered its decision reversing the third division in People v. Bryant (People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221, rev’g 165 Ill. App. 3d 996, 520 N.E.2d 890) and holding that section 4 — 103(b) was constitutional. In so doing, the supreme court considered the same issues as are raised by defendant in this appeal. The court found that the history of amendments to the penalty provision of the statute, indicating a steady increase in the penalty for possession of a stolen motor vehicle, demonstrated a legislative intent “to make possession of a stolen motor vehicle a separate, more serious offense than theft, rather than a lesser included offense of theft.” (Bryant, 128 Ill. 2d at 457, 539 N.E.2d at 1225.) The court also found that the clear language of the statute indicated an intent to prohibit all persons, including organized motor vehicle thieves, from possessing stolen motor vehicles and the statute which made possession a Class 2 felony for all persons was reasonably designed to fulfill that intent. (Bryant, 128 Ill. 2d at 455-57, 539 N.E.2d at 1224-26.) On the basis of the supreme court’s decision in Bryant, we are precluded from considering defendant’s contentions in this appeal. See People v. Washington (1989), 184 Ill. App. 3d 703, 707, 540 N.E.2d 1014, 1016.

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

Affirmed.

LORENZ and MURRAY, JJ., concur.