text:
    ELIZABETH SOLOMON et al., Plaintiffs-Appellees, v. AMERICAN NATIONAL BANK AND TRUST COMPANY, as Trustee, Defendant-Appellant.
    First District (1st Division)
    No. 1—92—0204
    Opinion filed February 8, 1993.

      Sanford Kahn, Ltd., of Chicago (Richard W. Christoff, of counsel), for appellant.
    Solomon & Behrendt, of Chicago (Arthur Solomon and Lois Solomon, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs Elizabeth Solomon, Meah Helfand and Tracy Bean had leased an apartment in a building owned by defendant, American National Bank and Trust Company, as trustee under trust No. 10914307. After vacating the apartment, plaintiffs brought suit against defendant for failing to promptly return their security deposit in violation of the Chicago Residential Landlord Tenant Ordinance (Chicago Municipal Code §5 — 12—080 (1992)). On cross-motions for summary judgment, the circuit court of Cook County entered summary judgment in favor of plaintiffs. For the following reasons, we affirm.

The record on appeal indicates the following facts. On April 24, 1990, plaintiffs entered into a lease for an apartment in a building owned by defendant. Plaintiffs paid approximately $1,350 as a security deposit. On April 30, 1991, plaintiffs vacated the apartment. On May 15, 1991, the building property manager mailed a letter to plaintiffs advising them that their security deposit would be returned minus deductions for late charges and the cost of cleaning the refrigerator, resulting in each plaintiff receiving $452.33.

Subsequently, defendant issued a check to each plaintiff in the amount of $452.33. These checks were dated June 26, 1991, and were mailed with a postmark dated June 27, 1991. Each check contained language on its face stating “S.D. 281-A pd. in full” and language on the reverse side stating “Security deposit pd. in full.” Each plaintiff crossed out the above-quoted language and cashed the checks. Later, the building property manager was notified by plaintiffs’ attorney in a letter dated July 9, 1991, that plaintiffs disputed defendant’s calculations. The letter also demanded payment of an additional $1,350 plus interest, asserting rights under the Chicago Residential Landlord Tenant Ordinance, which provides in relevant part:

“(d) The landlord shall within 45 days after the date that the tenant vacates the dwelling unit, return to the tenant the security deposit or any balance thereof and the required interest thereon ***

* * *

(f) If the landlord or landlord’s agent fails to comply with this section, the tenant shall be awarded damages in an amount equal to two times the security deposit plus interest at five percent together with court costs and reasonable attorney’s fees. This subsection does not preclude the tenant from recovering other damages to which he may be entitled under this chapter.” Chicago Municipal Code §§5 — 12—080(d), (f) (1991).

On July 25, 1991, plaintiffs brought suit against defendant. Plaintiffs moved for summary judgment on October 21, 1991, after defendant’s answer admitted that plaintiffs vacated the apartment on April 30, 1991, and that the checks were mailed on June 27, 1991. Defendant filed a cross-motion for summary judgment, asserting that there had been an accord and satisfaction as a matter of law.

On December 19, 1991, the trial court denied defendant’s motion and granted plaintiffs’ motion. The trial court entered judgment for plaintiffs in the amount of $3,000 plus costs, representing double the amount of the security deposit plus $300 in attorney fees. Defendant timely filed a notice of appeal to this court.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21.) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

Defendant’s first contention on appeal is that the trial court erred in concluding that there was no accord and satisfaction in this case. To constitute an accord and satisfaction there must be: (1) a bona fide dispute; (2) an unliquidated sum; (3) consideration; (4) a shared and mutual intent to compromise the claim; and (5) execution of the agreement. (Grove v. Winter (1990), 197 Ill. App. 3d 406, 413, 554 N.E.2d 722, 726.) An accord and satisfaction is contractual in nature; thus, the intent of the parties is of central importance. (Holman v. Simborg (1987), 152 Ill. App. 3d 453, 456, 504 N.E.2d 967, 969.) The debtor must show that the creditor intended to accept the payment of less than what is claimed as full satisfaction; otherwise, the payment operates only as a discharge of the amount paid. (See Holman, 152 Ill. App. 3d at 456, 504 N.E.2d at 969.) To determine the intent of the parties, it is necessary to examine the language of the relevant documents. See Holman, 152 Ill. App. 3d at 456, 504 N.E.2d at 969; see also Suburban Bank v. Bousis (1991), 144 Ill. 2d 51, 59, 578 N.E.2d 935, 939 (written agreement is presumed to express mutual intent absent clear and convincing evidence to the contrary).

The language of the checks the landlord sent to the tenants clearly refers to plaintiffs’ security deposits being paid in full. However, this language does not establish that the landlord intended that cashing the checks would extinguish the plaintiffs’ claims for landlord’s failure to refund the security deposit within the time prescribed by law. Thus, this case is distinguishable from Schultheis v. McWilliams Electric Co. (1991), 219 Ill. App. 3d 571, 573, 579 N.E.2d 1100, 1101, Nelson v. Fire Insurance Exchange (1987), 156 Ill. App. 3d 1017, 1019, 510 N.E.2d 137, 138-39, and Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 822-23, 420 N.E.2d 567, 570, where the relevant documents expressly referred to paying or settling claims. Instead, this case is more similar to Holman, in which this court held that the specific language of a judgment order fully satisfied a negligence claim, but did not bar a Structural Work Act claim. (See Holman, 152 Ill. App. 3d at 456-57, 504 N.E.2d at 969-70; see also Iloh v. Stein (1992), 226 Ill. App. 3d 644, 647-48, 589 N.E.2d 1054, 1055 (check without words of completeness did not constitute accord and satisfaction); Bevelheimer v. Gierach (1975), 33 Ill. App. 3d 988, 995, 339 N.E.2d 299, 305 (accord and satisfaction does not bar matter not contemplated by agreement).) In this case, even if the check operated as an accord and satisfaction of a claim to the security deposit refund, it did not operate to preclude the statutory claim that defendant failed to provide the refund within the time specified in the ordinance.

Defendant argues that plaintiffs need not have actually known that the checks were offered in full payment of all claims plaintiffs may have had against defendant, so long as a reasonable person would have known. (See Lafrentz & Karstens Co. v. Cavanagh (1911), 166 Ill. App. 306, 310.) The argument overlooks the specific language used on the checks. This court must seek a reasonable interpretation of a contract, and a strong presumption exists against provisions which could easily have been included in the agreement. (Prime Group, Inc. v. Northern Trust Co. (1990), 215 Ill. App. 3d 1065, 1069, 576 N.E.2d 841, 844.) Schultheis, Nelson and Quaintance suggest that had defendant intended that the checks serve as accord and satisfaction for damages to which plaintiffs were legally entitled above and beyond the refund, defendant could have used language to that effect. Consequently, we conclude that the trial court did not abuse its discretion in ruling that the language on the check did not preclude summary judgment.

Defendant also contends that the judgment entered was excessive. The trial court entered judgment against defendant in the sum of $3,000, representing a doubling of the amount of plaintiffs’ security deposit ($1,350 x 2 = $2,700) plus $300 in attorney fees. Defendant argues that the trial court should have offset the judgment by $1,357 to account for the three checks previously issued to plaintiffs. Defendant contends that the judgment exceeds the damages available under section 5 — 12—080(f) of the ordinance.

The parties have cited no cases regarding the interpretation of section 5 — 12—080(f) of the ordinance, and our research discloses none. When construing an ordinance, a court should consider each section of the ordinance in connection with every other section, rather than isolating sections. (See Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d .304, 318, 547 N.E.2d 437, 443.) As noted above, the ordinance provides:

“If the landlord or landlord’s agent fails to comply with this section, the tenant shall be awarded damages in an amount equal to two times the security deposit plus interest at five percent together with court costs and reasonable attorney’s fees. This subsection does not preclude the tenant from recovering other damages to which he may be entitled under this chapter.” (Chicago Municipal Code §5 — 12—080(f) (1991).)

The ordinance further provides:

“To the extent that this chapter provides no right or remedy in a circumstance, the rights and remedies available to landlords and tenants under the laws of the state of Illinois or other local ordinances shall remain applicable.” (Chicago Municipal Code §5 — 12—190 (1991).)

The parties dispute whether the security deposit refund may be deemed part of the “damages” provided for in section 5 — 12—080(f).

Reading the ordinance as a whole, we conclude that the deposit is not included in the statutory damages available under subsection (f). We note that the ordinance provides for the return of the deposit and statutory damages where the landlord fails to issue a proper receipt to a tenant or prospective tenant. (Chicago Municipal Code §§5 — 12— 080(b), (f) (1991).) As the ordinance does not expressly provide for the return of the deposit in the situation presented on appeal, plaintiffs’ recovery of the deposit itself is governed by State law or other local ordinances. (Chicago Municipal Code §5 — 12—190 (1991).) Defendant has failed to demonstrate in this case that plaintiffs were not entitled to the refund under State law or other local ordinances. Consequently, defendant has failed to demonstrate that the trial court’s award of $3,000 in damages was an abuse of discretion in this case.

Finally, plaintiffs seek additional attorney fees incurred in defending this appeal. This issue was not raised by plaintiffs in the trial court, probably due to uncertainty over whether the judgment would be appealed. This court is entitled to have the issue clearly defined and to be cited to pertinent authority. (See, e.g., In re Marriage of Winton (1991), 216 Ill. App. 3d 1084, 576 N.E.2d 856.) On appeal, the parties have cited cases which speak in general terms of statutory construction or are instances where appellate fees were granted. Neither party, however, discusses any recent case law that addresses the specific issue of whether a statute or ordinance of the sort at issue here allows for recovery of appellate fees. Consequently, we remand the matter to the trial court in order that the parties may fully brief the issue and that the trial court have the first opportunity to consider it.

For the aforementioned reasons, the judgment of the circuit court of Cook County finding defendant liable in the amount of $3,000 is affirmed and the case is remanded for proceedings consistent with this opinion regarding attorney fees for this appeal.

Affirmed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE DiVTTO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELIUS WASHINGTON, Defendant-Appellant.
    First District (2nd Division)
    Nos. 1-90-2220, 1-90-2590 cons.
    Opinion filed February 9, 1993.

      Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Donna C. Leak, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVTTO

delivered the opinion of the court:

A jury convicted defendant Cornelius Washington of first degree murder, aggravated criminal sexual assault, and home invasion. He was sentenced to natural life in prison for the murder, with concurrent 60-year sentences for the other two crimes. Defendant contends in this appeal that he did not receive a fair trial because (1) the prosecutor commented, without substantiation, that the reason the State’s witnesses did not come forward immediately and their testimony differed from their initial statements to police was that they were afraid of defendant; (2) the circuit court abused its discretion by summarily denying the jury’s request for a transcript; and (3) the circuit court abused its discretion by admitting into evidence graphic photographs of the victim. For the reasons that follow, we affirm.

At trial, Anthony Morrison testified that on July 19, 1988, he lived with his wife in a courtyard building in South Shore in Chicago, in an apartment one floor above that of Mae Brabbs, the victim in this case. That day, he and his long-time friend, Brian Cobbins, worked for a nearby plumbing concern until 5 or 5:30 p.m. After work, the two men stopped at a liquor store and then went to Morrison’s back porch. When Morrison was opening his second or third beer, defendant arrived and began drinking with the two men. Later, two other men, Edward Reed and then Fred Neal, came by. While the men sat on the bottom steps of the back porch, drinking and talking, the victim came out of her apartment with her dog; the men rose to let her pass. When defendant made a comment about robbing her, Morrison asked him “what was wrong with him, why would he bring that to me, and where I have to live.” Defendant responded by hitting Morrison in the chest. Morrison then went upstairs to his apartment, leaving defendant and the other three men. He took a shower and lay down on the couch, where he fell asleep. By his estimate, he had consumed “[a]bout 4 cans of beer, and maybe close to about half pint of wine.”

Morrison was awakened by his wife, Wanda, when Reed came to the front door, saying “I think [deféndant] done something to that woman.” Morrison sent Wanda to knock on the victim’s front door. When she returned after receiving no response to her knocking, Morrison fetched the building janitor, William Walker, who was standing in a gangway between the buildings. Morrison, his wife, and Walker went to the rear of the victim’s apartment and entered through the open door. They saw the victim lying across the bed with her clothes up over her head. Morrison went to his apartment to call police, as did Walker. Morrison admitted being a heroin user, but he denied having used heroin on the day of the murder. Wanda Morrison gave substantially the same testimony.

Brian Cobbins testified that a short time after Morrison went upstairs to his apartment, he too headed up to Morrison’s apartment to see if the latter was coming back. About halfway up the stairs, he heard a gurgling noise from the first floor. He went back downstairs. Only Reed and Neal were there, and all three men left. He did not call the police because he was scared and did not want to get involved; instead, he went home and went to sleep. On cross-examination, he testified that the only liquor he saw were the two 40-ounce bottles of beer he had bought at a liquor store and brought to Morrison’s building and that Morrison drank wine, not beer.

Frederick Neal testified that a few minutes after he arrived at Morrison’s building, he went with defendant to the nearby liquor store and bought a six-pack of beer. About 30 minutes later, Morrison went upstairs after arguing with defendant for about five minutes. Neal had not heard what the disagreement was about, nor had he seen either man strike the other. After Cobbins also had gone upstairs, defendant began scratching on the transom at the victim’s back door. The victim came out of her apartment and asked what he was doing. Defendant replied that he was the landlord’s son and had to make some repairs. Defendant then lunged at her, put his hands around her neck, and forced her into her apartment; Neal heard her scream once. Cobbins returned and suggested they leave. Neal then went to his mother’s house, where he stayed for about an hour. He then went home. The next day, after he learned of the victim’s death from the television news, he asked his sister to call the police. He himself did not call because he was upset.

Edward Reed recounted running into Morrison, Cobbins, and defendant, and then going to a liquor store with them to buy beer and wine. At first, they went into the alley and drank, then they went to the back stairs at Morrison’s building. Neal arrived sometime later. After the victim went out to walk her dog and returned, defendant said he was going to “tak[e] off the old lady.” After Morrison went upstairs, the victim came out and stood in her doorway talking to defendant, who then entered her apartment with his arms extended. Reed heard the victim scream, but he went home. When he returned to the building, Morrison’s wife answered the door and woke Morrison. Reed told Morrison that he saw defendant go into the victim’s house. Initially, he did not tell police about the incident because he did not want to become involved.

Margarita Arruza, a former Cook County medical examiner, performed the autopsy on the victim. In her opinion, the cause of the victim’s death was strangulation. She also described the victim’s extensive injuries: fractured nose; bruises on her eyes, cheeks, nose, chin, chest, arm, legs, and near her lips, consistent with being beaten; small hemorrhages at the base of the neck, consistent with strangulation; and lacerations around and inside the vagina, consistent with forcible penetration. By stipulation, however, J. Richards, an evidence technician for the police, testified that tests on a vaginal swab taken from the victim did not indicate the presence of semen.

Detective Edward Kevin was assigned to investigate the victim’s murder and arrived at her home at approximately 8 p.m. He first saw her lying face up on her bed, Wearing a pink and white housecoat that had been pulled down, exposing her breasts, and pulled up, exposing her genitalia. On the bed was a travel pouch, a purse, and a pair of eyeglasses; a hammer was on the floor nearby. He then spoke with the Morrisons for about 45 minutes; Morrison appeared to be “highly intoxicated.” Kevin went to the local firehouse and talked with a fire lieutenant, and then he returned to the crime scene, where he remained for about 45 minutes. While there, he received information indicating that defendant was wanted for the victim’s murder. He went to the house of defendant’s mother, explaining to her that the police were looking for defendant in connection with a homicide. Kevin and his partner then went to the homes of Cobbins, Reed, and Morrison to ask each to assist in the investigation. Each man agreed, so he took them to the police station. Until about 6 a.m., he and his partner interviewed the three men: Kevin interviewed Reed; his partner interviewed Cobbins and Morrison. After these interviews, Kevin contacted the State’s Attorney’s felony review unit, but the unit would not authorize a murder warrant against defendant. Later that day, Kevin looked for defendant but was unable to find him.

Chicago police officer Mark Bandyk testified that he was on routine patrol on July 19, 1988, at about 7:30 p.m. when he received a call to assist at a homicide scene. He and his partner entered through the back door of the victim’s two-room apartment and saw her lying on the bed, wearing a housecoat that had been torn open to reveal her breasts; her lower body was covered with a red blanket. Her face had been badly beaten and there was a lot of blood. On cross-examination, he agreed that according to his report, Morrison had told him that he and Walker, the janitor, had been drinking for an hour or two on the back stairs.

On July 23, Officer Bandyk received a telephone call from Morrison and then went to Neal’s home to ask him to assist in the investigation. Before returning to the station with Neal, Bandyk picked up Cobbins to reinterview him; he also called Reed, who met him at the station. Bandyk interviewed Neal for approximately an hour and spoke separately with Reed for about 30 minutes. Bandyk again contacted the felony review unit, and an assistant State’s Attorney arrived at the station. After interviewing Cobbins, Neal, and Reed, the assistant State’s Attorney took statements from them, which she handwrote and they signed. In September 1988, Bandyk went to Louisiana to extradite defendant.

On cross-examination, Bandyk agreed that according to his first report, Morrison said on July 19 that he was unemployed. In addition, Morrison had not mentioned Neal being at the building that day, nor had Morrison recounted defendant’s “ripping off” comment and the resultant altercation until Bandyk brought Morrison, Reed, and Cob-bins to the station for questioning. According to the report, Cobbins too initially had said he was unemployed and that when he went back down the steps after having gone to Morrison’s apartment for a drink of water, he heard a gurgling sound from the victim’s apartment and he then went home and went to sleep. Also according to his report, Reed initially had said that he and Cobbins left after Morrison went upstairs, and that defendant was still sitting on the steps by the vietim’s door. Too, Wanda Morrison had not mentioned that Reed had come to the Morrison apartment. Bandyk conceded that he had not verified Cobbins’ employment.

William Walker testified that he was a teacher and that he had worked for the Chicago Board of Education for 23 years. He was a part-time janitor in the victim’s building and had lived across the hall from her since 1970. On the evening of the murder, he was mowing the grass when Morrison called to him. The two men went to the victim’s back door, which was unlocked. They entered the apartment and he saw the victim lying on her back on the bed with the upper and lower parts of her body unclothed. He ran to his apartment and told his wife to call the police.

Defendant testified next. On July 19, 1988, he had a full-time job as a carpenter and was living with his sister and his fiancee. Six months prior to that date, he had pleaded guilty to criminal damage to property because “[he] did that crime.” He had been sentenced to five months in jail plus two years’ probation, and he had been released two months before the murder. He had known Cobbins and Reed for about 20 years, and Neal for about 15 years. He said that Morrison and Cobbins did not work and that, for the 20 years they had known one another, Morrison had been a heroin user. Defendant conceded, however, that he had not seen Morrison using heroin on the evening of July 19th nor had Morrison told him he had done so, but defendant stated that he knew Morrison to “shoot up” early in the morning.

Defendant testified that on July 19, at about 5 p.m., his sister had given him a ride to Morrison’s neighborhood because he was going to Reed’s house nearby to get a ride to his mother’s home. When he arrived, Morrison was “very high” and was drinking wine; Cobbins was drinking from a large bottle of beer; Reed arrived 5 or 10 minutes later. He denied that Neal was there at any time.

Defendant had no alcohol with him, so he asked Cobbins for some of the beer, offering to buy more when it was finished. Five minutes after Reed arrived, defendant and Reed went to the store, and both men paid for two fifths of wine. When they returned from the store, they stood “by the corner alley of the building.” Morrison was running up to his apartment every few minutes and returning a few minutes later; he eventually told the others that he was going to sit on the steps. Cobbins joined Morrison on the steps, and defendant and Reed stood near the fence a few feet away.

While the four men were there drinking the wine, the victim and her dog came out of her apartment’s back door, and Cobbins and Morrison got up to let her by. After she went toward the parking lot, Morrison nudged defendant’s arm, whispering “That’s the lady I be get money from so I could go buy dope”; Reed was standing on the other side, so he could not hear the comment. Defendant responded “what you telling me, sir, I don’t want to know about, you know, your problems.” Morrison also told him that he and Cobbins were planning to rob the victim. When the victim returned about 10 minutes later, Cobbins and Morrison exchanged glances. Then Cobbins “went up to the lady’s door [and] was pecking on the lady’s glass,” and Morrison stood up. At that point, defendant left for his mother-in-law’s house seven blocks away; Reed had already left.

Defendant arrived at his mother-in-law’s house about 7 p.m. and stayed approximately 30 minutes. He then went home, stayed only long enough to ask his sister where his fiancee was, and then went to another family member’s home, where he found his fiancee. At 10 or 10:30 p.m., defendant called his mother, who told him that the police had come by her house looking for him in connection with a murder. He assured her that he did not commit the murder but told her that he would soon leave town. He explained that he went to Louisiana that night because he “didn’t want to blow [his] probation” for the January conviction. There, he found a job to earn money so that he could return to Chicago and hire a lawyer to defend him. After his extradition, defendant talked with the assistant State’s Attorney for approximately 30 minutes, but he denied telling her he had had no money on the day of the murder and that his friends had been obliged to buy him liquor. He also denied participating in any of the charged crimes.

Anna Demacopoulos, an assistant State’s Attorney, testified that in September 1988, she was assigned to the felony review unit and interviewed defendant after his extradition. Defendant told her that his companions had supplied all the liquor that day because he had no money, but she conceded that this information was not in her handwritten notes made just after the interview.

After all the witnesses had testified, the State moved to publish its exhibit Number 1, a large, color close-up photograph of the victim’s face, showing severely blackened eyes and facial abrasions as well as indications around the neck of the strangulation. The State argued that the photo was necessary to show the elements of force and bodily injury in the charges of sexual assault and home invasion. Defendant’s attorney objected on the ground that the photo had no probative value because there was no issue as to the extent of the injuries, and he claimed that the photograph “is designed to set this jury on fire.” The court commented that the photo corroborated the witnesses’ accounts of the victim’s condition when they first saw her, and it agreed to publish the photo. Defense counsel strenuously objected, characterizing the photo as “extremely prejudicial” and “unnecessary under the circumstances.” Claiming that the State was “trying to bootstrap this case up by using a photograph like this to inflame the jury,” he then moved for a mistrial, which the court denied.

Except exhibit Numbers 7 and 9, both of which show the victim lying on the bed with a red blanket over her lower body, the State’s other exhibits were admitted without objection or were withdrawn. Defendant objected to the admission of these photos on the ground that the victim’s body was not as it was when the Morrisons and Walker first saw her because paramedics had tampered with the scene at least by placing the blanket on the victim and none of the three had authenticated the photos. Having excluded as prejudicial exhibit Number 10, in which the lower half of the victim’s body was unclothed, the court allowed publication of the two photos with the blanket covering the victim’s lower body.

Defendant then renewed the objection to exhibit Number 1 on the ground that the photo was taken by the coroner at the morgue, not at the scene, and that other pictures subsequently admitted over his objections were sufficient to depict the injuries. Defendant also objected because Dr. Arruza had not mentioned the victim’s black eyes, comparing the resultant undue prejudice to that which would follow from pictures of an autopsy showing internal injuries. The court stated that the photo corroborated the testimony of Dr. Arruza and that defendant could explain the photo as having been taken at the morgue. The court added that the probative value of exhibits 7 and 9 lay in their showing the purse, bag and glasses. Defendant then objected to using both pictures as cumulative. The court agreed that the photos depicted the same scene from different angles, but it ruled that they were not cumulative.

In its closing argument, the State commented that the Morrisons, Neal, Reed, and Cobbins had no reason to lie and say that defendant committed the crimes, and that no reason had been alleged. Defendant, in his closing, disagreed, pointing to the inconsistencies between their first statements to the police and their testimony at trial and arguing that they had every reason to lie because Cobbins and Morrison had committed the crimes. In rebuttal, the State characterized its witnesses on July 19 as “covering up for [defendant], when they didn’t want to get involved, when they were afraid of [defendant].” Defendant objected that the argument was based on facts not in evidence, but the court replied “Counsel may argue.” The prosecutor then continued: “When they’re afraid of [defendant], they covered up for him *** >)

During deliberations that afternoon, the jury sent out a note, asking: “If possible: 1) Please supply us with a copy of the transcript.” The court replied, “I am going to answer the note as follows: ‘March 30, 1990, you have heard the evidence and received all exhibits. Please continue to deliberate, Judge Morrissey.’ ” The record does not reveal who was in the courtroom when this occurred.

The jury found defendant guilty of first degree murder, aggravated criminal sexual assault, and home invasion. Although it also found him eligible for the death penalty, it did not impose it. Defendant filed a post-trial motion, which the court denied. Defendant received the sentences previously indicated.

I

Defendant’s first challenge on appeal is that he was denied a fair trial when, during closing argument, the prosecutor improperly attempted to explain the inconsistencies between its witnesses’ first statements to the police and their testimony at trial as the result of their fear of him. Absent evidence in the record that defendant had threatened these witnesses, he contends, the circuit court erred in overruling his objection to the prosecutor’s statement, which the prosecutor then repeated. Such comments were especially improper, he insists, because suggestions that witnesses were afraid to testify because of threats by a defendant are “highly prejudicial and inflammatory.” Even though he did not raise the issue in his post-trial motion and thus may have waived the issue, he concludes, this court should consider it as plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Because the case was a credibility contest and the testimony commented upon was the only evidence against him, defendant urges this court to find that the prosecutor’s behavior prejudiced him, warranting a new trial. Although the inference that the witnesses did not want to become implicated or involved is supported by the evidence, the record contains no evidence to support the State’s inference that defendant threatened the witnesses or that they feared him. Even if the altercation between Morrison and defendant occurred, he continues, it would not explain the reluctance of the other witnesses to come forward. He emphasizes that improper prosecutorial argument is overlooked only if made in response to a defendant’s own improper argument, citing United States v. Young (1985), 470 U.S. 1, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (interpreting Fed. R. Crim. R 52(b)). Unlike his counsel’s comments, which were inferable from the evidence, the State’s comment implied without supporting evidence that defendant somehow had caused the witnesses to fear him. In addition, he argues, the case was a close one, resting on a balancing of the credibility of the witnesses at issue against that of defendant.

Although to preserve an issue of prosecutorial misconduct for direct appellate review, a defendant generally must make both a contemporaneous objection and a written post-trial motion including the objection (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274), under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) a defendant may invoke the plain error rule on direct appeal if the evidence is closely balanced or the error was so substantial that it denied a defendant a fair trial. (People v. Speight (1992), 153 Ill. 2d 365, 379 (circuit court’s sua sponte taking judicial notice of facts after close of evidence was error, but harmless because no prejudice resulted and evidence against defendant was overwhelming); People v. Mullen (1990) , 141 Ill. 2d 394, 401-02, 566 N.E.2d 222, 228 (argument that witnesses were reluctant to testify due to fear of being shot met either test, even though defendant confessed to the crime, after court warned prosecutor not to comment on witnesses’ refusal to answer questions the day before).) When the evidence is closely balanced,

“[t]he main purpose of the plain error rule *** is to protect against the ‘possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved’ for appellate review. [Citation.] In cases where the evidence is closely balanced, the probability that a defendant’s conviction was caused by even a minor trial error is greatly enhanced. Therefore, in those cases, the court will invoke the plain error rule so that it can determine whether the error, which was not objected to at trial and in post-trial motions, raises doubt as to the validity of the jury’s verdict.” (Mullen, 141 Ill. 2d at 402, 566 N.E.2d at 226.)

When the error alleged is constitutional, it is considered harmless if shown to be harmless beyond a reasonable doubt. (People v. Shields (1991) , 143 Ill. 2d 435, 446, 575 N.E. 2d 538, 543, citing Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.) For this appeal, we assume without deciding that the plain error analysis is appropriate.

With regard to alleged errors in closing argument in particular, the circuit court’s decision as to the propriety of an argument should be affirmed unless an abuse of discretion is obvious. (People v. Thompkins (1988), 121 Ill. 2d 401, 445-46, 521 N.E.2d 38, 57, cert, denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Gt. 187.) Moreover, when reviewing the ruling here, we are mindful that

“[p]rosecutors are afforded wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. [Citation.] The court must consider the context of the argument, its relationship to the evidence, and its effect on the defendant’s right to a fair and impartial trial. [Citation.]
It is improper to argue that a witness is afraid to testify because he has been threatened or intimidated by defendant when not based upon evidence produced at trial.” (People v. Walker (1992), 230 Ill. App. 3d 377, 400, 594 N.E.2d 1252, 1267 (no prejudice in remark that witness was risking his life to testify because the remarks were not highlighted, repeated or otherwise emphasized), appeal denied (1992), 146 Ill. 2d 649, 602 N.E.2d 473.)

Although Thompkins and the other cases cited above concern remarks about a witness’ fear of testifying at trial, we believe that this analysis also may be used when, as here, the challenged remark instead is offered to explain a witness’ reluctance to come forward initially or to speak truthfully during the early stages of a criminal investigation.

Here, the State presented no direct evidence that defendant ever had threatened or physically harmed any of the witnesses, other than the blow to Morrison, and both Cobbins and Reed expressed fear of becoming involved in the case generally, not fear of defendant. As for the context of the challenged comment, in her opening argument, the prosecutor stated that the witnesses had no reason to lie and name defendant as the perpetrator. Defense counsel countered in his argument that their reason to lie was that Morrison and Cobbins had committed the crimes, and that their credibility was undermined by, among other things, their initially inconsistent statements, which grew more similar as the days passed. In rebuttal, the other prosecutor explained the witnesses’ initial untruthful or incomplete statements as the result of the witnesses’ “covering up for” defendant, not wanting to get involved, as well as their fear of him, and he repeated the latter remark after the court overruled defendant’s objection.

With no physical evidence, or circumstantial evidence other than his flight to Louisiana, linking defendant to the crimes, his conviction rested on their testimony alone. As in Walker, however, the remark here was neither highlighted, repeated (other than just after defendant’s objection was overruled), nor otherwise emphasized. In Mullen, in which the supreme court found plain error when a prosecutor commented on a witness’ initial reluctance to testify after the trial court had admonished the prosecutor not to make any reference to it, the prosecutor speculated that the witness did not want to testify at trial because he “did not want [a bullet] in [his] back,” and the sole evidence of fear in the record was that the witnesses were afraid only at or near the time of the incident, not at trial. Here, by contrast, there is no such egregious disregard of a court order, nor graphic description of the reason for the fear, nor comment concerning fear at trial when the only evidence of fear concerned the time of the murder. Furthermore, in Mullen, the court found that prejudicial error had occurred because the evidence was closely balanced and “littered with discrepancies” (141 Ill. 2d at 407, 566 N.E.2d at 228-29), whereas here the testimony of the witnesses was consistent with one another even though it differed from their initial statements to police. As a result, unlike the court in Mullen, we cannot say that it is probable that the remark here influenced the jury and may be the reason for its verdict.

Similarly, we find distinguishable People v. Smith (1990), 141 Ill. 2d 40, 66, 565 N.E.2d 900, in which the court found reversible error when, among other things, the prosecutor commented after evidence of gang-related activity and motive, “every witness that had the guts to come in here and say what he or she saw, every witness that had the guts to point the finger at this defendant, every witness that had the guts to tell the police this is the guy, has had to leave town” even though no evidence had been presented to link the witnesses’ moving away to their fear of defendant. In Smith, however, the court found that this comment alone might not have been grounds for reversal but that in combination with “fundamental flaws permeating this trial,” the conviction could not stand in light of the closely balanced evidence. Here, defendant presents no argument that the alleged errors’ cumulative effect warrants reversal, and the remark did not follow a thwarted State attempt to elicit testimony that a witness feared for his life.

In sum, although the circuit court should have sustained defendant’s objection, defendant was not prejudiced as a result because the evidence in this case was not close, despite impeachment of the State’s witnesses with their prior inconsistent statements, nor was the error of such magnitude that it denied defendant a fair trial.

II

Defendant next claims that the circuit court’s summary denial of the jury’s general request for a transcript indicates that it did not exercise its discretion in deciding to deny the request, and that by not exercising its discretion, the court erred, thereby prejudicing him. Defendant compares the wording of the judge’s reply here with the court’s response in People v. Bryant (1988), 176 Ill. App. 3d 809, 531 N.E.2d 849, in which the circuit court’s neglecting to ascertain what specific testimony the jury desired was interpreted as a failure to exercise discretion or an indication that the court erroneously believed it had no discretion to grant the request. Even though he did not object to the circuit court’s response or raise the issue in his post-trial motion, defendant continues, the record does not indicate that his counsel was present and this issue too may be addressed as plain error. Because his defense was based on the inconsistency and impeachment of the State’s witnesses and the consistency of his own statements, which required accurate recollection and careful review of the challenged testimony, defendant reasons that the circuit court’s refusal to exercise its discretion may have affected his right to a fair trial by interfering with the jury’s ability to evaluate the evidence, warranting a new trial.

Granting or denying a jury’s request to review a transcript is within the circuit court’s discretion. (People v. Govin (1991), 213 Ill. App. 3d 928, 938, 572 N.E.2d 450, 457, appeal denied (1991), 141 Ill. 2d 550, 580 N.E.2d 124.) Although the Bryant court commented that “[failure to determine the specific evidence or testimony desired by a jury making a general request [for a transcript] has recently been treated as a signal of a trial court’s erroneous belief that it lacked discretion to grant the jury’s request” (Bryant, 176 Ill. App. 3d at 813, 531 N.E.2d at 851), another court took exception to the notion that the record must affirmatively show that the court was aware of its power before a reviewing court may hold that a circuit court’s decision was an exercise of discretion. People v. Perry (1989), 183 Ill. App. 3d 534, 549-50, 540 N.E.2d 379, 389, appeal denied (1989), 127 Ill. 2d 633, 545 N.E.2d 124.

Here, the court’s reply to the jurors’ note was a refusal to supply the transcript with no reason given for the refusal. We believe that Perry is the better rule and therefore respectfully decline to follow Bryant, which requires that a reviewing court divine a court’s lack of awareness of its discretion from the wording of its ruling. As Perry explains, the burden is on defendant to establish that the judge did not exercise discretion, not on the State to demonstrate that the judge did. As in Perry, absent a showing that the court was unaware of its discretion, we have no basis for ruling that this is so. Furthermore, there is nothing in the record to suggest that the judge breached his duty to determine whether a review of the testimony would have been helpful to the jury and whether harm might result from access to the requested testimony. (People v. Bell (1976), 44 Ill. App. 3d 185, 193, 357 N.E.2d 1256, 1263; see also People v. Govin (1991), 213 Ill. App. 3d 928, 938, 572 N.E.2d 450, 457, appeal denied (1991), 141 Ill. 2d 550, 580 N.E.2d 124.) Consequently, from the record before us, it is impossible to say that the court abused its discretion in not asking the jury specifically what portions of the transcript it desired or in refusing to permit the jury to review the transcript.

Ill

As his final challenge to the fairness of his trial, defendant points to the publication of the color photographs in State’s exhibit Numbers 1, 7, and 9, respectively, the close-up of the victim’s face taken one day later at the morgue and two photos of the victim lying across the bed, her purse nearby, with her housecoat open, exposing her breasts, and a red blanket over her lower body. He argues that gruesome, inflammatory photographs may be shown to a jury only if probative of a material issue, and even if probative, such photos are inadmissible if the prejudicial impact outweighs their probative value. He contends that because the only issue in the case was who committed the crimes, not whether the crimes had been committed, the pictures lacked any probative value whatsoever and, in addition, the pictures were “extremely gruesome and explicit,” especially exhibit Number 1, which showed the condition of the victim’s bruised and swollen face one day after she died. Such pictures, he concludes, were unnecessary and served only to inflame the jury’s passions, requiring a new trial.

Like a circuit court’s decision to permit a jury to consult the transcript, decisions on allowing it to view photographs are left to the circuit court’s discretion and are reversed only for abuse of that discretion. (People v. Shum (1987), 117 Ill. 2d 317, 353, 512 N.E.2d 1183, 1196-97 (photos showed force used and viability of fetus), eert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060.) Even gruesome and inflammatory photographs may be admitted if sufficiently probative, e.g., probative of the amount of force used. (People v. Driskel (1991), 224 Ill. App. 3d 304, 314-15, 586 N.E.2d 580, 587 (over 50 photos were allowed because probative of amount of force and number of persons who committed offense and, in any event, any error was harmless).) Moreover, even if cumulative of testimony,

“demonstrative evidence may be clearer and more persuasive than oral testimony covering exactly the same points and [the supreme court] has allowed the jury to view photographs of a crime victim even when the photographs simply depict what witnesses have orally described. [Citation.] [The supreme court] ha[s] also held that photographs of a decedent which are relevant to establish any issue of fact are admissible in spite of the fact that they may be gruesome or inflammatory [citations], and that it is not an abuse of discretion to allow the jury to consider photographs which may be characterized as ‘disgusting’ [citations]. [The] court has also held that ‘[t]he major bulwark against prejudicing the jury is the sound discretion of the trial judge.’ [Citation.]” People v. Simms (1991), 143 Ill. 2d 154, 176-77, 572 N.E.2d 947, 956, cert, denied (1992), 502 U.S. 1031, 116 L. Ed. 2d 776, 112 S. Ct. 870 (admission of photos of victim’s partially naked body, of stab wounds in neck, and of bloodstains in victim’s apartment was not abuse of discretion at first stage of sentencing hearing because probative of the defendant’s mental state even though he had confessed that he had stabbed the victim repeatedly, knowing it would kill her).

See also People v. Cardona (1992), 240 Ill. App. 3d 110, 118; People v. Jones (1992), 236 Ill. App. 3d 244, 249.

Here, although the photos graphically demonstrate the injuries to the victim, their value as demonstrative evidence cannot be gainsaid. Because the charges against defendant included crimes for which force was an essential element, pictorial depictions of the result of force were highly probative of guilt of the charged offenses. Too, only three photographs were admitted, and we do not find these pictures prejudicially gruesome given the nature of the crimes. Thus, the circuit court did not abuse its discretion in admitting them.

For these reasons, we affirm the circuit court’s judgment.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.

      Although no evidence was introduced on this point, someone apparently had called the paramedics, who may have tried to revive the victim.


author: JUSTICE HARTMAN

text:
    VECO CORPORATION, Plaintiff-Appellant, v. ROBERT H. BABCOCK et al., Defendants-Appellees (Brokers and Traders Insurance, Defendant).
    First District (2nd Division)
    No. 1 — 91—3624
    Opinion filed February 9 ,1993.
    Rehearing denied March 25,1993.

      Veverka, Rosen & Haugh, of Chicago (Donald Veverka, Michael Haugh, and Elizabeth Jurkacek, of counsel), for appellant.
    Holleb & Coff, of Chicago (David Herbst and Richard Rhodes, of counsel), for appellees.

       Although Brokers and Traders Insurance was named as a defendant in plaintiff’s complaint, no appearance or answer was filed in its behalf. No default against it was sought or entered, nor does any judgment refer to it. No appearance on appeal was filed for it and the caption on appeal must be modified as set forth.

   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Veco Corporation (Veco), an Illinois corporation, appeals from a judgment deciding the issues in favor of defendants, Robert H. Babcock and Margaret F. Michails, two of its former officer-employees. Presented as issues for review are whether the circuit court erred in implicitly holding that defendants did not breach their fiduciary duties while serving as officers and employees of plaintiff, and in the court’s denial of damages.

Veco, formed in 1970 by its sole shareholder David Vear, is a life insurance benefit planning and financial services firm. Veco earns commissions based on the annual insurance policy premiums paid by its participants, which it earns only while it is the broker of record.

Babcock and Michails were former high-ranking officers of Veco. Babcock, initially employed by Veco as a salesman in 1972, by 1985 became executive vice-president, the senior executive with authority over all Veco’s group and employee benefits insurance. His management authority extended to several Veco group clients, among which was the National Exchange Benefit Trust (NEBT). NEBT was an association group account that consisted of individuals who traded at the Chicago Board of Trade, Chicago Mercantile Exchange, Chicago Board Options Exchange, and the Mid-American Stock Exchange. Veco earned about $250,000 in commissions from NEBT alone in 1985. That year, Veco paid Babcock a $70,000 salary and a $56,000 bonus. Michails, first employed by Veco as an assistant to a financial planner in 1978, by 1985 became vice-president in charge of office administration. Michails’ annual base salary was in the mid-$30,000s in January of 1986.

In December 1985, Michails and Babcock began to discuss leaving Veco to form their own company. Michails agreed that it was her “intention to take the business of Veco and move it over to” their own company. Michails spoke with another Veco employee, Jeanne Tucker, about the new company. Patricia Walker, another Veco employee, also was made aware of their plans.

Michails and Walker agreed to join Babcock sometime between January 1 and January 27, 1986. Tucker spent 90% of her time servicing NEBT. Babcock cautioned them not to discuss their plans with Vear. Babcock admitted he planned to convert Veco business to his new company, CorMac, Inc. (CorMac), but denied expending any effort to do so before his termination.

Babcock stated that in January 1986, while he was still employed by Veco, he incorporated CorMac, in which Babcock owns a 75% interest and Michails a 25% interest. Babcock found office space for CorMac and ordered office equipment, telephone systems, and computer software. Babcock informed various insurance carriers of his plan to form CorMac, including NEBT’s underwriter.

Babcock prepared a document, introduced in evidence, which Michails typed at Veco on January 14, 1986. This document was the business plan for CorMac (the Plan). Babcock testified that the Plan “outlines what we intended to do.”

The Plan provided:

“On February 1st, 1986 CorMac, Inc. will begin operation as an insurance and financial services company. The next three to four weeks will be the most important period of Cor-Mac’s existence dealing with the termination from Veco Corporation. ***
Participants in CorMac are Bob Babcock, Peg Michails, Jeanne Tucker, Pat Walker and Shelly Thompson. All are aware of the situation except Shelly Thompson who will be asked on or about 01/31/86.

* * *

We are intending to take the N.E.B.T. business with us and a careful takeover needs to be planned. ***
CorMac, Inc. will sell insurance and other financial products to individuals and corporations in the greater Chicago area. We will initially concentrate on writing current cases known to us as well as the conversion of approximately 30-35 million dollars of NEBT term business. ***
In addition we will continue to sell benefit plans to 50 employee plus corporations. *** Value of the group business we hope to take with us ranges from $40,000 to $75,000 annually. Prospect files *** should be setup ***.

* * *

Over the next three weeks we will need to accomplish much so that the transition can be as easy as possible. ***
*** I will address each area specifically outlining the tasks which need to be accomplished by 01/31/86. ***

* * *

—Takeover the NEBT
—Broker of Record on Group Business.

* * *

—Records and information from the office.
—Lists of prospects.

* * *

The following information or rather copies of or tapes of should be out of the office by 01/24/86.
P — Full client list with address and phone numbers
P — Full attorney and accountant list with address and phone numbers
B — Important papers from N.E.B.T. term underwriting files
B — Important papers from transferring group accounts
B — Important papers from prospective transferring clients
B — Important papers from prospective transferring group clients
J — copy (tape) of full N.E.B.T. system
J — Copies of medical enrollment cards
J — Copies of LTD, dental, NYLIC, individual dental, etc. records and other information as needed from the N.E.B.T.
J — Copies of last EOB statements on each individual also last EOB of 1985
P — Copy (diskette) of full Executive Life System and ECS System
P — Copy (diskette) of all other important systems.”

Babcock gave Michails and Tucker the Plan. He denied that they ever removed any items from the office pursuant to the Plan except the important papers from NEBT underwriting files. He disclaimed ever having referred to these NEBT underwriting files before returning them to Veco. According to Michails, before leaving Veco she used Veco files to prepare a list of Veco clients that “they were going to talk to after we left Veco.” Babcock asserted that he never saw or removed a full client list.

Babcock admitted that he took steps to line up the NEBT business while still employed at Veco. During January of 1986, before being terminated, Babcock met with people involved with the various exchanges that made up NEBT to “see what their feelings were as to whether that could happen or not.” Babcock and Tucker also met with the chief executive officer of the Commodities Future Self-Regulatory Group at a separate meeting, to which Babcock brought an underwriter. Babcock acknowledged that at these meetings he “expressed some concern as to what would happen to NEBT after we left,” observed that the entire Veco staff responsible for NEBT was leaving, and that no one else at Veco knew anything about necessary NEBT servicing. Babcock prepared and Michails typed a handout for distribution at these meetings, which stated:

“Bob Babcock, Jeanne Tucker and Pat Walker have made it known to certain members of the Chicago Board of Trade and the Chicago Mercantile Exchange *** that they will soon be terminating their employment with Veco Corporation. *** Babcock, Tucker and Walker were the only three employees of Veco Corporation who knew anything about the trust and/or its operations and these three individuals were the only employees of Veco Corporation having anything to do with the administration and proper service to the members covered by the trust. ***

* * *

*** Babcock, Tucker and Walker are also requesting that they be allowed through their company to fulfill the position as administrators and the broker of record for the various programs currently covered by the [NEBT].”

Meanwhile, on January 27, 1986, Vear returned to the office from a two-week vacation. At 8 a.m. that morning he fired Babcock. Within an hour of Babcock’s termination, Michails, Tucker, and Walker resigned. Only four employees and Vear remained at Veco. As defendants intended and predicted, no remaining Veco employee was experienced in administering the NEBT account. As a result of this disruption to NEBT, Veco lost approximately $100,000 during 1986, according to Vear.

Babcock testified that, starting the day after his termination, a number of Veco clients transferred their accounts from Veco to Babcock’s corporation, CorMac. The switch-over clients included: Bell Chemical Company, by letter dated January 28, 1986; Chicago Mercantile Exchange, by letter dated January 28, 1986; J.J. Grundy, Incorporated, by letter dated January 31, 1986; John Nuveen & Company, by letter dated January 31, 1986; C & D Commodities, by letter dated January 31, 1986; Spiegel, Incorporated, by letter dated January 31, 1986; and Building Officials & Code Administrators International, by letter dated February 7, 1986. Babcock claimed he contacted these clients in person and by letter after his termination and did not make sales calls of any group customer for the purpose of obtaining a change in a broker of record letter before his termination. Defendants did not obtain any NEBT business served by Veco, Babcock asserted, and he has not contacted any NEBT members since his termination.

A group insurance purchaser ordinarily takes a careful, painstaking look at the insurance provider and analyzes the carrier, the benefits, and the premiums, according to Babcock. The John Nuveen business Babcock took from Veco for CorMac’s benefit did not require such a procedure because it was the result of cultivating and entertaining the client while he was still a Veco officer. Further, in October of 1985, Babcock and a Veco employee discussed “Veco and how we fit in it and what our plans were for the future”; he denied offering the employee a job or discussing that he was thinking of starting his own company.

Veco sued defendants for an injunction, a temporary restraining order, and for breach of fiduciary duties. In an agreed order, defendants agreed temporarily to refrain from soliciting NEBT. The agreed order stated that defendants have returned all Veco’s documents to Veco, including information removed or copied from Veco by Babcock and Michails pursuant to the aforementioned Plan. Babcock returned all Veco documents before the parties executed the agreed order.

At trial, Veco requested a permanent injunction and argued that defendants breached their fiduciary duties. After a bench trial, judgment was entered for defendants on both counts. No bases were given for this ruling. Veco appeals.

I

Veco initially contends that the circuit court’s judgment as to defendants’ breach of their fiduciary duties to Veco is contrary to the manifest weight of the evidence.

A court’s decision will not be disturbed on appeal unless it is against the manifest weight of the evidence. (In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 549, 546 N.E.2d 506.) A reviewing court will not overturn a circuit court’s findings merely because it does not agree with the lower court or because it might have reached a different conclusion had it been the trier of fact. (County Treasurer, 131 Ill. 2d at 549.) It is not enough to show that there is sufficient evidence to support a contrary judgment (People ex rel. Lauth v. Wilmington Coal Co. (1949), 402 Ill. 161, 167, 83 N.E.2d 741; Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 509, 557 N.E.2d 383), but where the evidence is uncontradicted and is not inherently unbelievable, a finding contrary to that evidence cannot stand (Gold v. Ziff Communications Co. (1989), 196 Ill. App. 3d 425, 433, 553 N.E.2d 404).

A

In the absence of a contractual restrictive covenant, the improper taking of a customer list, or fraud, former employees may compete with their former employer and solicit former customers so long as there was no demonstrable business activity by the former employee before the termination of employment. (Prudential Insurance Co. of America v. McCurry (1986), 143 Ill. App. 3d 222, 227, 492 N.E.2d 1026.) In general, employees may plan, form, and outfit a competing corporation while still working for the employer, but may not commence competition. Voss Engineering, Inc. v. Voss Industries, Inc. (1985), 134 Ill. App. 3d 632, 635-36, 481 N.E.2d 63.

Corporate officers, however, stand on a different footing; they owe a fiduciary duty of loyalty to their corporate employer not to (1) actively exploit their positions within the corporation for their own personal benefit, or (2) hinder the ability of a corporation to continue the business for which it was developed. Smith-Shrader Co. v. Smith (1985), 136 Ill. App. 3d 571, 577, 483 N.E.2d 283; see Graham v. Mimms (1982), 111 Ill. App. 3d 751, 760-61, 444 N.E.2d 549.

The law governing the right of former employees to compete is distinct from and irrelevant to a breach of fiduciary duty claim against officers. An officer’s duty of loyalty is not inconsistent with his right to enter into competition with a former employer upon leaving such employment. (Comedy Cottage, Inc. v. Berk (1986), 145 Ill. App. 3d 355, 360, 495 N.E.2d 1006, citing Voss, 134 Ill. App. 3d at 635-37.) The resignation of an officer, however, will not sever liability for transactions completed after the termination of the party’s association with the corporation of transactions which began during the existence of the relationship or were founded on information acquired during the relationship. Comedy Cottage, 145 Ill. App. 3d at 360, citing H. Vincent Allen & Associates, Inc. v. Weis (1978), 63 Ill. App. 3d 285, 292, 379 N.E.2d 765.

It is undisputed that Babcock solicited NEBT business for CorMac while still employed at Veco. He met with people involved with the various exchanges that made up NEBT to “see what their feelings were as to whether that could happen or not.” At these meetings, he “expressed some concern as to what would happen to the NEBT after we left,” and he also stated that the entire Veco staff responsible for NEBT was leaving and that no one left at Veco knew anything about NEBT’s needs. Moreover, defendants prepared a handout, which specifically requested that they be given NEBT business, for distribution at these meetings. In addition, defendants implicitly admit pretermination solicitation of NEBT in their brief: “Babcock stopped soliciting NEBT business when he left Veco ***.”

Defendants maintain that Veco has no valid complaint against them for soliciting NEBT because defendants did not obtain any NEBT business and there can be no cause of action where there is no injury or damages. (Franks v. North Shore Farms, Inc. (1969), 115 Ill. App. 2d 57, 65, 253 N.E.2d 45.) Defendants’ failure to obtain any NEBT business does not preclude a finding of breach of fiduciary duties, however. As shown by the record, defendants’ efforts to obtain NEBT business are indeed relevant to the issue of injury to Veco and resultant damages, as discussed in point II of this opinion.

Veco contends that it was damaged by defendants’ breach of fiduciary duties because it was left unable to service the NEBT account. All Veco’s employees with experience in administering NEBT were asked by defendants to leave Veco and join CorMac. Vear testified that Veco lost approximately $100,000 as a result of the disruption; however, no further evidence of damages proffered by Veco was admitted at trial. To this charge, defendants first respond that there was no causal connection between their actions and Veco’s loss of NEBT business because they never put into effect their plan to take NEBT with them and because they could have left Veco’s employ at any time. Further, Veco might have lost NEBT business for other reasons, such as rate increases, normal fluctuations, and competition. Finally, defendants allege, Veco failed to present testimony of NEBT participants who left the plan because of a disruption in service; therefore, the circuit court could have applied the missing witness rule. Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board (1991), 208 Ill. App. 3d 220, 233, 566 N.E.2d 963.

With respect to the group accounts, however, defendants’ business Plan, a veritable “smoking gun,” set forth the strategy of transferring some of Veco’s group business to themselves. While a Veco officer, Michails prepared a CorMac prospect list of Veco clients, taken from Veco files. Significantly, shortly after defendants’ departure from Veco, six Veco group clients executed broker of record letters transferring Veco’s business to CorMac, although Babcock acknowledged that it took six or seven meetings over the course of several months to secure business from one account and that a group insurance purchaser in general takes a careful, painstaking look at the insurance provider and analyzes the carrier, the benefits, and the premiums before awarding that business to anyone. The circuit court could not disregard this evidence of pretermination solicitation from the loss of six group customers to CorMac within one to several days following Babcock’s termination, contrary to the usual practice. As observed in ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 828, 413 N.E.2d 1299:

“A review of the record reveals that the effect of these ‘discussions’ or ‘solicitations’ contributed to the success of defendants’ walkout plan. We find especially persuasive of liability the uncontested fact that a large number of ABC’s customers and personnel switched to Aeronautics simultaneously. Certainly, this could not have occurred absent defendants’ prior careful planning.” (Emphasis in original.)

That same analysis is applicable here, in light of the evidence showing defendants’ active exploitation of their fiduciary positions to enhance their individual interests at the expense of their employer. See SmithShrader, 136 Ill. App. 3d at 577.

B

Veco asserts that defendants breached their fiduciary duties to Veco by removing Veco documents including a customer list. Corporate officers breach their fiduciary duties where they use the company’s confidential business information for the new business, either before or after their departure. (Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 725, 557 N.E.2d 506, citing Affiliated Hospital Products, Inc. v. Baldwin (1978), 57 Ill. App. 3d 800, 806, 373 N.E.2d 1000.) Defendants argue their removal of the customer list and the NEBT underwriting files is irrelevant because the documents removed did not contain confidential or protected information, which was already well known to Babcock based upon his knowledge, acquaintances, and the overall experience he acquired at Veco. (See Revcor, Inc. v. Fame, Inc. (1967), 85 Ill. App. 2d 350, 357, 228 N.E.2d 742.) Veco has made no claim of confidentiality for the documents removed or copied by defendants and submitted no evidence in support of such a proposition. Accordingly, there was no legally cognizable breach of defendants’ fiduciary duties with respect to these documents.

C

Veco urges that defendants breached their fiduciary duties by hiring away Veco employees. Corporate officers are liable for breaching their fiduciary duties where, while still affiliated with the company, they solicit fellow employees to join a rival business or orchestrate a mass exodus of employees to follow shortly the officer’s resignation from the company. (Preferred Meal Systems, 199 Ill. App. 3d at 725, citing Unichem Corp. v. Gurtler (1986), 148 Ill. App. 3d 284, 290, 498 N.E.2d 724.) Defendants do not respond to this claim. In the present case, it is undisputed that Babcock recruited Michails, Tucker, and Walker to join him prior to his termination; he also cautioned them not to tell Vear of their plans. At Babcock’s direction and while still employed at Veco, Michails retrieved, copied, and typed various documents belonging to Veco for CorMac. While still employed at Veco, Tucker joined Babcock in a meeting where Babcock solicited NEBT members for CorMac. After Vear fired Babcock, Michails, Tucker, and Walker immediately resigned. This evidence is uncontradicted. Clearly, defendants secretly solicited Veco employees for Cor-Mac and orchestrated a mass exodus of Veco’s NEBT servicing employees to follow Babcock’s resignation. Such conduct is a breach of fiduciary duties. The circuit court’s contrary determination is against the manifest weight of the evidence.

Defendants’ reliance upon Ellis & Marshall Associates, Inc. v. Marshall (1973), 16 Ill. App. 3d 398, 306 N.E.2d 712, is misplaced. There, the court determined that defendant did not engage in any pretermination solicitation, but merely informed customers of his intention to leave the company and form a competing company (Marshall, 16 Ill. App. 3d at 403); here, defendants admitted they solicited NEBT business prior to their termination. Defendants made it appear that without them, Veco could not properly service their accounts. With respect to the hiring away of employees, in Marshall the actual date of the defendant’s resignation was disputed; therefore, it is unclear whether the defendant approached the employees before or after his resignation. (See Marshall, 16 Ill. App. 3d at 400.) The evidence is undisputed in the case sub judice that Babcock recruited Michails, Tucker, and Walker to join him before his termination.

D

Within its charge that defendants breached their fiduciary duties, Veco also claims that defendants conspired to destroy it and took such action during their employment at Veco. A plaintiff can recover for conspiracy when officers intentionally act in concert to breach their fiduciary duties and cause injury to their employer; no actual malice or ill will is required. (ABC Trans National Transport, 90 Ill. App. 3d at 826.) Veco points to the undisputed evidence that Babcock, Michails, and Walker agreed to leave Veco sometime in January 1986 to start a competing venture, and that Babcock cautioned the others not to disclose their plans to Vear. The evidence further reveals defendants’ knowledge that their mass walkout would cripple Veco and sought to turn this assumption to their own advantage by advising Veco’s customers that they were “concerned” about what would happen to NEBT after defendants’ departure, that no one responsible for servicing NEBT would be left at Veco, and that no one else at Veco knew anything about the trust and “proper service to members covered by the trust.” Such evidence could not be ignored. The circuit court’s determination to the contrary is against the manifest weight of the evidence and must be reversed.

II

Veco argues that the circuit court’s denial of damages was against the manifest weight of the evidence.

A

First, Veco claims it is entitled to recover the salary and other compensation it paid to Babcock and Michails during the time they breached their fiduciary duties to Veco. An employer may recover an employee’s total compensation paid during the time period that an employee was breaching fiduciary duties owed the employer. (ABC Trans National Transport, 90 Ill. App. 3d at 838, citing Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 314, 321 N.E.2d 1.) The undisputed testimony shows that Babcock and Michails solicited NEBT business and other Veco employees in January of 1986, before they were terminated or resigned. At the least, Veco is entitled to the compensation it paid them during that time, whether they secured NEBT business or not.

B

Next, Veco maintains it is entitled to an imposition of a constructive trust on commissions received by CorMac on six group accounts that defendants converted from Veco. A constructive trust may be imposed when an employee breaches his or her fiduciary duty by competing with his or her employer during employment. (Hill v. Names & Addresses, Inc. (1991), 212 Ill. App. 3d 1065, 1083, 1086, 571 N.E.2d 1085.) Further, the resignation of an officer will not sever liability for transactions completed after the termination of his or her association with the corporation if the transactions began during the existence of the relationship or were founded on information acquired during the relationship. Comedy Cottage, Inc. v. Berk (1986), 145 Ill. App. 3d 355, 360, 495 N.E.2d 1006; H. Vincent Allen & Associates, Inc. v. Weis (1978), 63 Ill. App. 3d 285, 292, 379 N.E.2d 765; see also 3 W. Fletcher, Private Corporations §860, at 275-78 (perm. ed. 1986).

Evidence demonstrating that defendants solicited these group clients before their termination from Veco, as discussed under point I, if properly considered, could have led to the imposition of a constructive trust and should be reconsidered upon remandment.

C

Veco argues that the circuit court erred in excluding its evidence of lost profits. At trial, the circuit court refused to admit Veco’s exhibits 17 through 25, which were summaries of business records offered to show Veco’s lost profits. Upon defendants’ objections, the circuit court denied admittance in evidence of these exhibits, apparently in the mistaken belief that Illinois law does not allow summaries to be received in evidence. Defendants also objected on grounds that the summaries were not properly authenticated or probative.

Summaries may be admitted into evidence if the underlying records are voluminous and cannot be conveniently examined to extract the fact to be proved. (Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co. (1990), 195 Ill. App. 3d 1036, 1051, 552 N.E.2d 1336.) Defendants note that the documents summarized must be available in court or at least made available to the opposing party. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 30, 500 N.E.2d 612.) Defendants claim that the underlying documents were not in court or made available to them when the exhibits were offered. The record is to the contrary. When Veco’s counsel attempted to introduce such an exhibit into evidence at trial, Year testified that the books and records of company were available for “inspection and examination” by defendants, if they wanted to look at them. Defendants never requested such an inspection.

The summaries also must overcome hearsay, authentication, and best evidence objections in order to be admitted into evidence. (612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1977), 54 Ill. App. 3d 749, 753, 370 N.E.2d 236.) Defendants claim the circuit court sustained their objections also because the exhibits were not properly authenticated; however, the parties agree that Year testified to authenticate the data, stating that it was compiled by Veco’s bookkeeper and then prepared by Veco’s accountant. Defendants maintain that Year’s testimony was inadequate because he did not prepare the documents. Any competent witness who has seen original documents may testify concerning their authentication, however. (In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 176, 516 N.E.2d 566.) The proffered authentication was adequate as to exhibits 17 through 25.

The exhibits at issue additionally qualify as business records. Veco correctly notes that business records may be allowed into evidence if made in the regular course of business according to a regular business practice. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 726-27, 457 N.E.2d 85.) The same testimony by Year established at trial that exhibits 19, 20, 21, 23, 24, and 25 met these requirements. Defendants do not dispute this claim.

The circuit court should have allowed the summaries into evidence.

D

As its final argument, Veco claims it is entitled to punitive damages and attorney fees. A decision by the circuit court to deny punitive damages will not be reversed absent an abuse of discretion. (PCx Corp. v. Ross (1991), 209 Ill. App. 3d 530, 539-40, 568 N.E.2d 311.) Here, the circuit court did not properly consider much of the evidence which had a bearing upon the sought after punitive damages and attorney fees. See Hill v. Names & Addresses, Inc. (1991), 212 Ill. App. 3d 1065, 1086, 571 N.E.2d 1085; Smith-Shrader Co. v. Smith (1985), 136 Ill. App. 3d 571, 580, 483 N.E.2d 283.

Upon remand, all the evidence related to the foregoing damages should be considered anew. Accordingly, we reverse judgment for defendants and we remand for further proceedings in consonance with this opinion.

Reversed and remanded with directions.

SCARIANO and DiVITO, JJ., concur.

      At oral argument it was ascertained that when there is a change in the broker of record, the earnings of the previous broker end and the entitlement to earnings for the new broker accrue immediately.

      As the Plan evolved, those given specific assignments were identified by initial: B = Babcock; P = Michails; and J = Tucker.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME SCOTT, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—0763
    Opinion filed February 10, 1993.

      Rita A. Fry, Public Defender, of Chicago (Pamela Pfrang, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Jerome Scott, was convicted of one count of delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(d)) in a jury trial and sentenced to five years’ imprisonment. On appeal, defendant contends (1) the indictment does not apprise him of the offenses charged or bar subsequent prosecution arising from the same conduct; (2) the trial court committed reversible error when it submitted verdict forms to the jury for only one of the three counts charged in the indictment; (3) sebtion 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1100 et seq.) violates the due process and equal protection clauses of the United States and Illinois Constitutions; (4) certain improper and prejudicial remarks made by the prosecutor during closing argument entitle him to a new trial; and (5) the trial court improperly admitted evidence of defendant’s prior convictions. We reverse and remand.

Defendant was charged by three-count indictment with allegedly delivering hand-rolled cigarettes containing phencyclidine (PCP) to three undercover police officers in three unconnected transactions. At the jury instruction conference, the State tendered Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981), which provided for the jury to receive six jury forms, one “guilty” and one “not guilty” verdict form for each of the three counts which defendant was charged. The trial court, however, modified this instruction sua sponte to require only two verdict forms, one “guilty” and one “not guilty,” be submitted to the jury rather than the six forms requested in the tendered instruction. Defense counsel failed to object. The jury subsequently returned a guilty verdict. This appeal followed.

Defendant first contends that the indictment does not apprise him of the offenses charged or bar subsequent prosecution arising from the same conduct. We find the indictment here sufficiently apprises defendant of the charges against him so that he can prepare his defense and protects him from the possibility of duplicate prosecution for the same offense, notwithstanding the omission of a recipient of the alleged deliveries of the controlled substance. Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3; People v. Maxwell (1992), 148 Ill. 2d 116, 136, 592 N.E.2d 960, 969.

Defendant next contends that the trial court committed reversible error when it submitted verdict forms to the jury for only one of the three counts charged in the indictment. Although defense counsel failed to make a contemporaneous objection at the instruction conference, we hold that defendant has not waived appellate review of this issue because the trial court’s error clearly rises to the level of plain error. (134 Ill. 2d R. 615(a); see also 134 Ill. 2d R. 451(c) (substantial defects involving jury instructions are not waived by failure to make timely objections thereto if the interests of justice require).) After reviewing the record in its entirety, we find that defendant’s constitutional right to a unanimous verdict by a 12-person jury was violated when the trial court provided verdict forms for only one of the three counts charged in the indictment. (Ill. Const. 1970, art. I, §13; People v. Lobb (1959), 17 Ill. 2d 287, 298, 161 N.E.2d 325, 331.) Accordingly, defendant’s conviction must be reversed.

Each count of the indictment separately charged defendant with delivering PCP to a different undercover officer. By submitting verdict forms to the jury for only one count of delivery of a controlled substance, the trial court engendered the possibility of a unanimous guilty verdict only in the sense that all 12 jurors believed that defendant was guilty of one, but possibly not the same, delivery count. It is possible here that only four jurors believed that defendant was guilty of delivering a controlled substance to one of the officers, four other jurors believed that defendant was guilty of delivering a controlled substance to another officer and the remaining four jurors believed that defendant was guilty of delivering a controlled substance to the third officer. This scenario, which is plausible given the facts of this case, permits a unanimous guilty verdict to have been rendered without all 12 jurors agreeing that defendant delivered a controlled substance to a particular recipient as set forth in each count of the indictment. We, therefore, conclude that because defendant was denied the right to a unanimous verdict by a 12-person jury as guaranteed by the Illinois Constitution, defendant’s conviction is reversed and the case is remanded for a new trial. Under the circumstances, we do not address the other issues raised by defendant.

Accordingly, the judgment of conviction is reversed and the case is remanded for a new trial.

Reversed and remanded.

TULLY, P.J., and GREIMAN, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY BROWN, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 91—0305
    Opinion filed February 11, 1993.

      Rita A. Fry, Public Defender, of Chicago (Karen Tietz and Murray M. Coffey, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Stephen Dinolfo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Anthony Brown, was convicted of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)), following a jury trial in the circuit court of Cook County. Defendant was sentenced to a prison term of 45 years. Defendant, who was tried separately from five codefendants, contends on appeal that (1) the trial court erred in refusing his requested jury instructions; (2) he was not proved guilty beyond a reasonable doubt; and (3) his 45-year sentence is excessive.

We affirm as modified.

The People charged defendant with first-degree murder for the shooting death of Stephen Anderson. The circumstances preceding the shooting involved the purchase of an automobile by the victim’s brother, Jonathan Anderson, from Eric Langham, one of defendant’s codefendants. At trial, Jonathan testified that in February 1989 he and Langham began negotiating the purchase price of Langham’s car for which Langham initially requested $5,000. A few weeks later, however, Jonathan and Langham both agreed to a purchase price of $3,500. Jonathan paid Langham the entire $3,500 within two days.

On August 22, 1989, Langham contacted Jonathan and accused him of telling others that he had beaten Langham out of his car. Langham insisted that Jonathan owed him $1,500 more. Langham told Jonathan, “I am going to have my boys beat the shit out of you and bring me my car.” Langham then told Jonathan to meet him at the area where the two of them grew up, referring to the area near Cermak Road and Kilbourn Avenue in Chicago. Jonathan offered to return the car if Langham would return his money.

Later that evening, Jonathan told Stephen that he was having trouble with the man who sold him the automobile. When Jonathan informed Stephen that he would be meeting Langham later that evening, Stephen stated that he would accompany Jonathan. Jonathan, however, told Stephen not to come along.

Jonathan also testified that he went to Kilbourn and Cermak, accompanied by two friends. Once there, he spoke with the person in the driver’s seat of a parked Chevrolet Blazer just before Langham arrived, driving a motorcycle. Langham first stopped near a pink car parked nearby and was handed something from a passenger inside the car. Langham then approached Jonathan, grabbed him by the neck, and placed a pistol against his head. Langham ordered everyone else to retreat. Stephen, who was also present, began to approach Jonathan and Langham, who were standing in the middle of the street. Stephen demanded that Langham release Jonathan. Immediately thereafter, gunfire erupted from several different places. Jonathan saw defendant standing near the pink car, firing a handgun. Jonathan then saw Stephen fall to the ground.

Jonathan admitted that he had a .25-caliber pistol inside his car when he went to Cermak and Kilbourn. Once there, however, he never had the gun in his hands. Jonathan claimed that neither Stephen nor any of his friends were armed.

Jarvis Evans and Rodney McNeal each testified that on August 22, 1989, at 11 p.m., they drove together with Stephen to the area near Cermak and Kilbourn. Once there, Evans, who was driving, parked near a Chevrolet Blazer as they waited for Jonathan to arrive. McNeal saw a woman and a man sitting inside a pink car parked nearby. A short time later, Jonathan arrived. Moments later, Langham and another individual arrived, riding a motorcycle. After briefly speaking with Jonathan, Langham grabbed Jonathan by the neck and placed a pistol against his head. Stephen began to approach Jonathan and Langham after which gunshots were fired from several different directions. Stephen was shot while running away. At trial, McNeal identified defendant as the man who had been sitting inside the pink car.

Robert Lee testified that on August 22, 1989, he and another individual accompanied Jonathan to Cermak and Kilbourn. After they arrived, Jonathan exited the car and spoke with the driver of the Chevrolet Blazer parked nearby. Meanwhile, a motorcycle carrying two persons approached. The driver got off of the motorcycle and met Jonathan in the middle of the street. There, he grabbed Jonathan by the neck and placed a pistol to his head. Jonathan pushed the gun away and began running. Gunshots were fired from various directions, during which Lee observed defendant firing a gun from inside a pink car parked nearby.

Thaddeus Melko, an evidence technician of the Chicago police department, testified that on August 23, 1989, at approximately 1:15 a.m., he was assigned to a homicide investigation at 2100 South Kilbourn Avenue. After arriving on the scene, the officer was informed that the victim had been shot to death. The officer conducted a search for physical evidence and found numerous shell casings near the victim’s body. During further investigation, the officer found a .25-caliber pistol under the seat of Jonathan’s car. Officer Melko found no evidence that the pistol had been fired.

Robert Smith, a qualified firearms expert, testified at trial that he examined the pistol found in Jonathan’s car. After examining the casings recovered after the shooting, Smith concluded that none of the shells came from Jonathan’s gun. Smith also testified that his examination of evidence recovered from the scene also revealed that six different weapons had been fired.

Dr. Robert Kirschner, deputy chief medical examiner, testified that he performed an autopsy on the victim’s body which revealed that he had sustained four gunshot wounds and approximately 150 shotgun pellet wounds. The cause of death was multiple gunshot wounds and the manner of death was homicide.

At the close of the evidence, the jury found defendant guilty of first-degree murder. Defendant filed a motion for a new trial, which the trial court denied. Following arguments in aggravation and mitigation, the trial court sentenced defendant to 45 years in the Illinois Department of Corrections. Defendant now appeals both his conviction and his sentence.

Defendant first contends that the trial court abused its discretion in refusing his requested jury instructions. It is well settled that both an accused and the State are entitled to have the jury instructed as to the law applicable to their respective theories of the case, provided some evidence supports the particular theory. (People v. Stamps (1982), 108 Ill. App. 3d 280, 297.) Supreme court rules require that once a trial court determines that the jury should be instructed as to a particular subject, it must then determine whether an applicable Illinois Pattern Jury Instruction (IPI) exists. (134 Ill. 2d R. 451(a).) If an applicable IPI instruction exists, it must be used unless it fails to accurately state the law. People v. Thomas (1991), 217 Ill. App. 3d 698, 703.

In the present case, the State tendered the following jury instruction, inter alia, during the jury instruction conference:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or commission of the offense.” (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 5.03 (Supp. 1989)).)

The trial court accepted this instruction over the defense counsel’s objection and his three non-IPI instructions which stated in essence that defendant could not be found guilty merely because of his presence at the crime scene.

Defendant now argues on appeal that given the variety of evidence presented at trial concerning his presence during the shooting, the jury instruction tendered by the State was inadequate in that the jury could have convicted him based on his mere presence. Defendant also claims that the instruction failed to instruct the jury as to his theory of the case, namely, that he was not present at the crime scene, but even if he had been present he did not participate in the shooting. Our review of the law, together with the facts of this case, requires a finding that the non-IPI instructions tendered by defense counsel were properly denied.

In People v. Thomas (1988), 175 Ill. App. 3d 521, this court reasoned that the decision to give or refuse a non-IPI instruction is within the trial court’s discretion, and refusal of a non-IPI instruction does not constitute an abuse of discretion if an applicable IPI instruction exists. (Thomas, 175 Ill. App. 3d at 528.) There, we also recognized that the IPI instruction on accountability encompasses instructions concerning mere presence at the scene of a crime, such as those offered by the present defendant. (Thomas, 175 Ill. App. 3d at 529.) We went on to hold that the trial court properly refused defendant’s non-IPI instruction where the jury was given IPI instructions on accountability, the presumption of innocence, the required burden and quantum of proof necessary to convict, and the elements of the charged offenses. Thomas, 175 Ill. App. 3d at 529-30.

In the present case, the trial court instructed the jury concerning the presumption of innocence, the burden of proof and the quantum necessary to convict, and the elements of murder, all in addition to IPI Criminal 2d No. 5.03 (Supp. 1989). In so doing, the trial court fully and adequately apprised the jury of both the applicable law and defendant’s theory of the case. Moreover, in People v. Walker (1976), 44 Ill. App. 3d 494, the court stated “the refusal of a tendered instruction is not error if the essence of the instruction is covered by other instructions which are given.” (Walker, 44 Ill. App. 3d at 498.) Since the essence of defendant’s non-IPI instructions was covered by the IPI instructions which were given, we find no abuse of discretion.

Next, defendant contends that, given the contradictory nature of the evidence, he was not proved guilty beyond a reasonable doubt.

Where a conviction is challenged based on insufficient evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any [emphasis in original] rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.’ ” (People v. Collins (1985), 106 Ill. 2d 237, 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Following a guilty verdict, the determination made by the trier of fact regarding witness credibility and the weight of the evidence are “ ‘preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ ” (Emphasis in original.) (Collins, 106 Ill. 2d at 261, quoting Virginia, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.) Moreover, a reviewing court will not overturn a conviction unless the improbable or unsatisfactory nature of the evidence raises a reasonable doubt of defendant’s guilt. People v. Steidl (1991), 142 Ill. 2d 204, 226.

In the case at bar, we believe the evidence sufficiently supports the jury’s determination of guilt. At trial, Rodney McNeal testified that when he arrived at Cermak Road and Kilboum Avenue he saw defendant sitting in a pink car. Also, Jonathan Anderson and Robert Lee both testified that they each saw defendant firing a gun during the shooting. This evidence supports the jury’s conclusion that defendant was present at the scene and either participated in the shooting or was legally accountable for the actions of his codefendants who committed the murder.

Even so, defendant argues that the contradictory nature of the evidence presented to the jury fails to support his guilt beyond a reasonable doubt. To support his argument, defendant points to the fact that (1) Lee mentioned defendant’s presence at the crime scene for the first time at trial, and (2) Lee was awaiting sentencing on an unrelated matter. The State correctly points out, however, that this information, which was presented to the jury, went to the credibility of the witness. Moreover, it is the trier of fact who resolves any conflicts in the evidence, and who also determines the credibility of witnesses and the weight to be given their testimony. People v. Collins (1985), 106 Ill. 2d 237, 261-62.

In the present case, the jury believed defendant was present when the victim was shot to death, and either he shot the victim or he was accountable for the actions of his codefendants who shot the victim. Given the jury’s determination of defendant’s guilt, the jury chose to believe the testimony of the State’s occurrence witnesses. Viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found defendant guilty beyond a reasonable doubt. Consequently, we conclude that defendant was proved guilty of first-degree murder.

Finally, defendant contends that his 45-year sentence was excessive. Following a conviction for first-degree murder, a defendant may be sentenced to a term of not less than 20 years and not more than 60 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1).) In making the sentencing decision, “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) A trial court’s sentencing decision may not be altered on review unless the trial court abused its discretion, i.e., the sentence diverges from the purpose and spirit of the law. (People v. Williams (1990), 196 Ill. App. 3d 851, 867.) Moreover, an abuse of discretion may be found even where a sentence is within the statutory limitations. Williams, 196 Ill. App. 3d at 867.

Under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), this court is empowered to reduce an excessive sentence where the sentencing court abused its discretion in making the sentencing decision. (People v. Perruquet (1977), 68 Ill. 2d 149.) Given that at the time of the offense defendant was 20 years old and lacked any prior criminal history, we believe that his rehabilitative potential was not adequately considered. (See People v. Steffens (1985), 131 Ill. App. 3d 141.) Accordingly, under the authority of Supreme Court Rule 615(b)(4), we reduce defendant’s sentence for murder from 45 years to 30 years.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified by this opinion.

Affirmed, as modified.

JIGANTI, P.J., and CAHILL, J., concur.