author: PRESIDING JUSTICE KNECHT JUSTICE LU.ND,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE JAMES, JR., Defendant-Appellant.
    Fourth District
    No. 4—88—0936
    Opinion filed August 2, 1990.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Kevin T. McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Jesse James, Jr., was charged by indictment with attempt (aggravated criminal sexual assault) (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 12 — 14(a)(1)) alleging defendant, while displaying a knife, attempted to rip the clothes off of K.S. with the intent to place his penis in her vagina. Following a jury trial, defendant was convicted of this offense and sentenced to 25 years’ imprisonment. On appeal, defendant contends: (1) the trial court erred in admitting into evidence a statement made by K.S. to Ken Peterson and Michelle Scogin; (2) the trial court erred in admitting the testimony of Frank Ford concerning a statement made by defendant three months prior to the offense; (3) the trial court erred in refusing to instruct the jury on attempt (aggravated sexual abuse), aggravated battery, and attempt (criminal sexual assault); (4) defendant was denied a fair trial when the State’s closing argument improperly summarized evidence and shifted the burden of proof to defendant; and (5) defendant was not proved guilty beyond a reasonable doubt. We affirm.

The victim in this case, K.S., has been deaf her whole life and can speak very little. K.S. can read lips when spoken to slowly, but has difficulty understanding statements which are spoken at normal speeds. Jenny Singleton was qualified and appointed by the court to act as interpreter and translator for K.S. during the course of the jury trial.

On February 21, 1988, K.S. and her husband, Terry, visited one of Terry’s friends who lived three or four blocks from K.S.’s residence. K.S. testified she knew the friend only by the name of “Charles” or “Chips.” After staying part of the afternoon, K.S. and her husband left in Chips’ car. K.S. was subsequently dropped off at her home while her husband left with a man named Willie.

When her husband did not return in time for dinner, K.S. became worried he was drinking and driving. She walked to Chips’ house to see if Chips would help her look for her husband. Upon finding Chips at home, K.S. communicated with him by writing a note, and Chips responded he would help. Because her husband had Chips’ car, Chips went to speak with defendant about borrowing his car for their search. Defendant subsequently drove them to Willie’s house and then back to Chips’ house.

K.S. testified a person named Cliff arrived at Chips’ house and that the four of them, K.S., Cliff, Chips, and defendant, sat at the kitchen table. They communicated with K.S. by writing notes back and forth in a notebook. Shortly thereafter, K.S. left the residence in defendant’s car with Chips, Cliff, and defendant. Defendant was driving the vehicle and he dropped Cliff off at his home. It was K.S.’s impression the three of them were then going to Chips’ girlfriend’s house. On the way there, defendant and Chips were talking about something; however, K.S. was unable to read their lips. K.S. testified Chips was sitting in the backseat and defendant was talking to him over his shoulder. Chips subsequently got out of the car, leaving only K.S. and defendant inside. Defendant began driving very fast and, though he was talking to her, K.S. could not understand him. K.S. stated defendant ultimately stopped at a trailer, at which time K.S. thought he was going to use the phone.

K.S. and defendant got out of the car and entered the trailer. Defendant slammed the door behind them, locking it. K.S. tried to leave the trailer, but defendant would not allow her to. Defendant grabbed her, pulled her down, and tore at her coat. After defendant ripped K.S.’s coat open, he said, “I will rape you.” K.S. stated she could read his lips when he said this statement as she was on the floor and he was right up in her face. Defendant next stated, “I’ll kill you.” K.S. testified she pushed and screamed, trying to get defendant off of her. Defendant held his hand over her mouth and kept saying to shut up. When defendant removed his hand from her mouth, he placed a knife in her mouth. K.S. felt a cut and saw blood.

After defendant left the trailer, K.S. walked toward the neighboring trailers. Upon finding two people inside a car parked at another trailer, she tried to explain to them what had happened. The couple gave her a piece of paper to write on, and K.S. wrote a note indicating she needed to go home. In response to the question “What’s wrong?” she wrote, “the black man try rape and knife.” K.S. testified it was hard for her to write as she was nervous and shaking. The couple gave her ice for her mouth and took her home. K.S. testified it was about 1 a.m. when the couple brought her home and neither she nor her husband called the police that night because her husband wanted to wait until the morning to do so. K.S. testified when she and her husband went to the police station the next morning, she identified defendant’s photo as depicting the person who had assaulted her.

K.S. further testified that when she first spoke with the police about the incident, she only told them part of the truth. K.S. did not tell the police she was with Chips, Cliff, and defendant prior to the offense because she was afraid her husband would be mad she went out looking for him. K.S. testified her husband later found out she had been looking for him and told her she needed to tell the police the truth. The first story K.S. told the police was that a man had passed her on the street, grabbed her, and threw her in his car.

Terry testified on February 21, 1988, he and his wife, K.S., went to Charles “Chips” Thomas’ house in Urbana. Terry testified he subsequently dropped K.S. off at their home and used Chips’ car to go out drinking with a friend named Willie. Terry testified he did not get home until close to midnight and that K.S. was not at home at the time. Terry was eventually awakened by a knock on the door. When he opened the door, he discovered his wife along with a man and a woman. Terry noticed his wife had an ice pack on her mouth, was cut on the inside of her upper lip, and was missing the top two buttons of her coat. His wife indicated to him someone had attempted to rape her. Terry stated he did not call the police that evening because he was too intoxicated.

The next morning, February 22, 1988, Terry translated a statement from his wife to the police. The statement K.S. gave to police on February 22, 1988, was that a man had passed her on the street, grabbed her, threw her in his car, and took her to a trailer. Terry stated he confronted his wife about that version of the story the next day, after being told by one of his friends that K.S. had not told the police the truth. After reassuring his wife he was not angry with her, K.S. went to the police and explained the change in her story.

Michelle Scogin testified about midnight on February 21, 1988, she was visiting Ken Peterson at the Woods Edge Trailer Park in Urbana. While she and Peterson were sitting in her car in front of his trailer, she noticed a white car pulling away from the trailer located across the street. Shortly after the car left, a woman came running across the street and knocked on their car window. Scogin stated the woman could not speak very well. After Scogin and Peterson gave a piece of paper to the woman, she wrote “need ride home.” Scogin stated the woman was frantic, crying, had a swollen lip, and blood coming from her mouth.

Scogin and Peterson took the woman inside the trailer where K.S. wrote, “black man try rape and knife.” Scogin stated she gave K.S. an ice pack for her mouth, and she and Peterson took K.S. home. Scogin testified she had not heard screaming coming from the trailer. She had volunteered to call the police but K.S. just wanted to be with her husband.

Ken Peterson testified he was living at No. 68 Peachtree in Woods Edge Trailer Park in February 1988. Peterson indicated he was familiar with the trailer at No. 74 Peachtree, located approximately 40 yards across the street. Peterson thought the individual who lived there had moved out before the beginning of February. At about midnight on February 21, 1988, Peterson was sitting in a car outside his trailer speaking to Michelle Scogin. Peterson stated that at some point, a white Cutlass pulled up to No. 74 Peachtree and a black man got out. Peterson stated the same man left in the car approximately 15 or 20 minutes later.

According to Peterson, a white woman came from the trailer at No. 74 Peachtree shortly after the black man drove away. The woman approached the car, in which he was sitting, making weird noises. After finding paper and pencil for her, the woman requested to be taken home. Peterson noted the woman was upset, crying, bleeding around the mouth, and generally looked beaten up. Peterson stated he and Scogin took the woman inside his trailer. Here, the woman wrote a note stating a black man had tried to rape her and he had a knife. Peterson stated he and Scogin drove the woman to her home, knocked on the door, and explained to her husband what had happened.

On the evening of February 22, 1988, Peterson gave a description of the vehicle he observed at No. 74 Peachtree to Detective Michael Cooper of the Urbana police department. He told Cooper the vehicle was a 1972 or 1973 white Cutlass. Peterson stated when the detective drove around the neighborhood where K.S. lived, he saw the same car which he observed in the trailer park the night before.

Frank Ford, Jr., testified that at some time during the week before Thanksgiving, 1987, he was sitting with defendant on Joe Puryear’s porch in Urbana, when K.S. came out of the house next door and waved at Ford. Ford explained Puryear had earlier introduced K.S. and her husband to him. When defendant saw K.S. outside the house he made the statement “I’m going to get me some of that.” Ford responded by telling defendant K.S. was married.

Clifford Walker testified while he was at Chips Thomas’ house during the evening of February 21, 1988, a deaf girl by the name of K.S. came to see Chips. Walker indicated he, Chips, defendant, and K.S. sat around the kitchen table. They communicated with K.S. by writing on a notepad. It was during this time defendant made the statement, “He was going to get some of that pussy.” Walker told defendant to leave K.S. alone because she was looking for her husband. Walker stated that at one point, defendant wrote a note offering to give K.S. a ride to find her husband. The four of them eventually left in defendant’s car. Walker was dropped off at approximately 11 or 11:30 p.m. and did not see any of the other individuals that night.

Charles “Chips” Thomas testified he too recalled defendant’s statement, “I’m going to get some of that pussy,” made at Chips’ kitchen table. Defendant repeatedly referred to K.S. as “the bitch,” and told Thomas and Walker she could not understand what they were saying because she was “deaf and dumb.” At one point, defendant asked for a piece of paper and wrote a note to K.S. stating he would take her to look for her husband. After defendant wrote the note, they all left in his car to take Cliff home. After dropping Cliff off, defendant proceeded toward Thomas’ girlfriend’s house.

At some point prior to reaching his girlfriend’s home, defendant made the statement “Chips, let’s go get the pussy. The bitch can’t talk, you know, and she can’t tell nothing.” Thomas responded by saying, “[B]ut she writes like hell, you know,” and requested to be let out of the car. Thomas stated after he got out of the car, he could see K.S. trying to pull away from defendant as she sat in the front seat.

Michael Cooper testified he was an investigator with the Urbana police department and on Monday, February 22, 1988, he interviewed K.S. Cooper showed K.S. a photo lineup consisting of five photos, and K.S. identified defendant’s photo as depicting the person who had assaulted her. Cooper also interviewed Ken Peterson during the evening of February 22, 1988. Peterson provided him with the note K.S. had written while at his trailer. Cooper drove Peterson past 802 E. Main to look at a car which he believed belonged to defendant. Cooper indicated once he got a little more than a block away from the address, he asked Peterson to start looking around. Cooper indicated Peterson subsequently identified a white Cutlass at the southwest corner of 802 E. Main as the car he had seen at the trailer park the night before. Cooper testified defendant was the driver of this car.

Cooper testified when he went to No. 74 Peachtree on February 23, 1988, it appeared no one was living there. Cooper and Investigator Michael Metzler entered through the front door of the trailer and conducted a search. When Cooper opened the front door, he immediately saw a button lying on the floor which appeared to match the buttons on K.S.’s coat. Cooper stated they found another similar button inside the trailer between the back and bottom cushion of the couch. While there were stains on the carpet and couch cushions, Cooper was unable to determine their nature or cause. Cooper arrested defendant on February 23, 1988.

On February 24, 1988, Investigator Cooper reinterviewed K.S. K.S. had come by the station while he was out working on the case. K.S. had told Investigator Metzler she had made some mistakes in her original report. Cooper reinterviewed K.S. in her apartment with Jenny Singleton present and acting as an interpreter.

Investigator Cooper searched defendant’s car on February 24, 1988, for the knife allegedly used in the offense. Cooper stated he got the keys to defendant’s car from defendant’s fiancee, Lavon Aker. Cooper did not find a knife in the vehicle.

The defense presented the testimony of three persons who lived adjacent to No. 74 Peachtree in February 1988. All three persons testified they were home on Sunday evening, February 21, 1988. None of them heard or saw anything unusual.

Lavon Aker testified that approximately 11:10 p.m. on February 21, 1988, defendant, her fiance, told her Chips and K.S. wanted to look for Chips’ car. Defendant came back at about 11:40 p.m. and stated K.S. wanted him to help her find Terry. Aker, defendant, their baby, and K.S. got into defendant’s car, with K.S. sitting in the backseat. K.S. pointed the way to No. 74 Peachtree Drive and indicated she wanted to go inside the trailer.

Defendant walked with K.S. into the trailer, and they were inside for approximately two or three minutes. After exiting the trailer, defendant came to the car but K.S. stopped halfway between the trailer and the car and pointed to the ground as if she wanted to stay. Aker communicated to K.S. they could come back at a later time. K.S. responded by shaking her head no and pointing to the ground. At this time, Aker, defendant, and their baby went home.

Defendant did not testify.

On appeal, defendant contends the trial court erred in admitting into evidence the statement made by K.S. to Ken Peterson and Michelle Scogin following the offense. The statement was written by K.S. and read, “the black man try rape and knife.” Though defendant now raises this issue on appeal, defendant did not object to these statements at trial nor did defendant raise this issue in his post-trial motion. Failure to raise an issue at trial or in a post-trial motion, constitutes waiver. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Accordingly, we review this issue only to determine whether it constitutes plain error.

The trial court admitted this statement, noting it fell within the hearsay exceptions of a prompt complaint and a spontaneous declaration. On appeal, the State concedes the statement was not admissible as a prompt complaint since the testimony was not restricted to merely the fact the complaint was made. See People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.

To bring a statement within the spontaneous declaration exception to the hearsay rule, three factors are necessary: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) In determining whether a statement is admissible as a spontaneous declaration, the trial court has considerable discretion. Its decision will not be reversed absent an abuse of that discretion. People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285.

The first and third required factors of the spontaneous declaration are clearly met in this case. K.S.’s statement, “the black man try rape and knife,” clearly relates to the circumstances of the occurrence. Furthermore, such an occurrence would be sufficiently startling as to produce a spontaneous declaration.

Regarding the remaining factor, absence of time to fabricate, time alone does not control the admissibility of the evidence, but rather the critical factor is the lack of opportunity to fabricate. (People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395.) The trial court must look to the surrounding circumstances to determine whether there was an opportunity for reflection and invention. People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.

K.S. did not have sufficient time or opportunity to fabricate. Peterson testified K.S. approached the car shortly after defendant drove away. Peterson and Scogin both testified the woman was upset, frantic, and crying. At their car, K.S. was able to communicate she wanted to be taken home by writing on a scrap of paper they found in the car. In an attempt to comfort K.S. and to better understand her, Scogin and Peterson took her inside the trailer where, in response to the question, “[WJhat’s wrong?” she wrote, “black man try rape and knife.” Peterson testified K.S. remained fairly upset during this entire time.

Under these circumstances, K.S.’s statement qualifies as a spontaneous utterance and was properly admitted into evidence. Though the statement was made inside the trailer, it still occurred within moments of K.S.’s first contact with another individual. Moreover, in this instance, consideration must be given to K.S.’s inability to communicate and the necessity to write such a message. The fact the statement was made in response to the question, “What’s wrong?” does not disqualify this statement as a spontaneous declaration. Though one of the circumstances to be taken into account is whether the statement was made voluntarily or in response to a question, it is well established that asking the declarant such a question is insufficient to destroy the spontaneity of a response. Damen, 28 Ill. 2d at 472, 193 N.E.2d at 30; Sanchez, 105 Ill. App. 3d at 491, 434 N.E.2d at 398.

Defendant further contends the trial court erred in admitting the testimony of Frank Ford concerning the statement of defendant made three months prior to the offense. This statement, made upon viewing K.S., was, “I’m going to get me some of that.” Defendant contends this evidence is irrelevant and its introduction only served to prejudice him.

Threats made by an accused against the victim prior to the commission of the criminal act are admissible in evidence as showing malice and criminal intent. (People v. Lion (1957), 10 Ill. 2d 208, 139 N.E.2d 757.) Considerations such as the circumstances under which the alleged threats were made, their repetition, and the lapse of time between them and the offense affect only the probative force or weight of such evidence, but not its admissibility. People v. Jayne (1977), 52 Ill. App. 3d 990, 368 N.E.2d 422.

Here, the probative value of defendant’s statement, made three months prior to the offense, was significant. Taken in its context, the statement showed defendant’s desire and intent to have a sexual relationship with K.S. Such a statement is clearly relevant to defendant’s criminal intent. Accordingly, the trial court did not err in admitting this statement.

Defendant contends the trial court erred in refusing to instruct the jury on the lesser offenses of attempt (aggravated criminal sexual abuse) (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4(a), 12—16(a)(1)), aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—(4)(b)(1)), and attempt (criminal sexual assault) (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4(a), 12—13(a)(1)). Defendant alleges these offenses are included offenses of attempt (aggravated criminal sexual assault). (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4, 12—14.) “Included offense” is defined in section 2—9(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 2—9(a)), which states:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.”

It is undisputed defendant is entitled to an instruction on an included offense when the evidence would permit the jury to rationally find him guilty of the lesser offense and acquit him on the greater. (People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, citing Keeble v. United States (1973), 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98.) However, the lesser offense cannot be completely encompassed within the greater. (Sansone v. United States (1965), 380 U.S. 343, 13 L. Ed. 2d 882, 85 S. Ct. 1004.) An instruction on an included offense is also not required where the evidence clearly shows defendant is either guilty of the greater offense or not guilty of any offense. People v. Thompson (1976), 35 Ill. App. 3d 773, 342 N.E.2d 445.

Here, the trial court did not err in refusing to instruct the jury on these additional offenses. An examination of all the evidence indicates the jury could have reached but two possible conclusions: the defendant was guilty of attempt (aggravated criminal sexual assault), or was guilty of none of these crimes.

The distinction between attempt (aggravated criminal sexual assault) and attempt (aggravated criminal sexual abuse) is the requirement defendant intends to commit an act of sexual penetration and not mere sexual conduct. From the evidence, defendant was unquestionably guilty of attempt (aggravated criminal sexual assault). K.S. testified defendant stated, “I will rape you,” after pushing her to the floor of the trailer and forcefully opening her coat. Immediately prior to the offense and while K.S. was in the car with them, defendant stated to Chips Walker, “Chips, let’s go get the pussy. The bitch can’t talk, you know, and she can’t tell nothing.” Defendant made a similar statement in K.S.’s presence at Thomas’ home earlier that same evening. Three months prior to the offense, defendant stated to Frank Ford, while in K.S.’s presence, that he was going to “get some of that.” There was no evidence in the record showing defendant only intended to commit an act of sexual conduct.

The distinction between the offenses of attempt (aggravated criminal sexual assault) and attempt (criminal sexual assault) is the use of a knife. Again, from the evidence defendant was unquestionably guilty of attempt (aggravated criminal sexual assault). K.S. testified defendant held a knife to her while holding her down. She further testified he cut the inside of her mouth with the knife causing her to bleed. This testimony was substantiated by Peterson and Scogin, who saw K.S. immediately after the offense. They testified her lip was cut and bleeding. There was no contrary testimony presented. Accordingly, the trial court appropriately instructed the jury on the sole offense of attempt (criminal sexual assault).

Battery is generally not an included offense of attempt (aggravated criminal sexual assault). The offense of battery requires bodily harm or physical contact, which is not a required element of attempt (aggravated criminal sexual assault). See People v. Traufler (1987), 152 Ill. App. 3d 987, 505 N.E.2d 21.

However, the indictment in this case alleged defendant “with the intent to commit the offense of Aggravated Criminal Sexual Assault, *** performed a substantial step toward the commission of that offense, in that he while displaying a dangerous weapon, namely: a knife, knowingly attempted to rip the clothes off of ***, with the intent, by the use of force, to place his penis in the vagina of.” While the jury instructions did not contain this language, the portion of the indictment alleging defendant, while displaying a dangerous weapon, knowingly attempted to rip the clothes off of K.S. could constitute aggravated battery when taken by itself.

In support of his argument that the jury should have been instructed on the included offense of aggravated battery, defendant cites People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993. In Dace, the Illinois Supreme Court held the defendants were entitled to the instruction on the included offense. Specifically, the court stated, “We hold that under these circumstances, where the information charged the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give defendant’s tendered instructions was error.” (Dace, 104 Ill. 2d at 103, 470 N.E.2d at 996.) However, under the circumstances of Dace, the evidence adduced at trial supported a conviction for the lesser offense. Dace, 104 Ill. 2d at 103, 470 N.E.2d at 996.

The same does not hold true for the case at bar. Here, the evidence adduced at trial does not support a conviction for only the lesser offense. Clearly, from all the evidence defendant’s intent was that of sexual penetration. The acts which he took were steps toward that ultimate goal. No rational trier of fact could have convicted defendant only of aggravated battery. Where the result of the trial would not have been different if the lesser instruction had been given, a refusal to give the lesser instruction is harmless and not a ground for reversal. (People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327.) Accordingly, any possible error in failing to give the instruction for aggravated battery is not grounds for reversal.

Defendant contends he was deprived of a fair trial when the prosecutor, in the course of closing argument, improperly summarized evidence. Specifically, defendant contends the prosecutor’s comments, stating (1) Ken Peterson saw a black man walk into the trailer shortly before the alleged offense, (2) K.S. looked toward Chips when defendant offered a ride to her, and (3) defendant’s fiancee probably had the knife used in the offense, improperly summarized the evidence and prejudiced defendant. Defendant further states the prosecutor improperly shifted the burden of proof when arguing there was no evidence to contradict K.S.’s testimony concerning the use of a knife in the offense. We disagree.

Initially we note, defendant failed to object to these statements at trial or in a post-trial motion. Failure to do so constitutes waiver. (Enoch, 122 Ill. 2d at 186-87, 522 N.E.2d at 1129-30.) Accordingly, our review of this issue is limited to only whether they constitute plain error.

Prosecutors are allowed great latitude in closing arguments. To determine whether error exists, each case must be decided on its own facts. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) Arguments and statements based upon facts and evidence or upon legitimate inferences from such evidence are not outside the bounds of proper argument (People v. Oliger (1975), 32 Ill. App. 3d 889, 336 N.E.2d 769), and the prosecution can respond to comments by defense counsel which invite or provoke response. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) The substance and style of closing arguments are within the discretion of the trial court, and its finding will not be disturbed absent extreme error. People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.

The prosecutor’s statements in closing argument regarding the evidence or assumptions which could be drawn from the evidence do not constitute plain error. At trial, Peterson’s testimony was he saw a black man exit a white Cutlass upon arrival at the trailer and, “15 or 20 minutes after it got there,” he saw the same man leave the trailer in the same white Cutlass. Chips Thomas’ testimony regarding whether K.S. looked toward him when defendant offered her a ride was that they were all sitting at the kitchen table. K.S. was more or less communicating with him at this time as she was turned sideways in the chair.

It was during the State’s rebuttal that the prosecutor stated defendant’s fiancee, Lavon Aker, probably had the knife used in the offense. This argument was invited by defense counsel, as defense counsel made numerous references to the unknown whereabouts of the knife. During closing argument, defense counsel stated:

“Where’s the knife, the knife that we can’t find, and the knife that [K.S.] can’t [lose]. Why can’t she [lose] the knife? She needs it. She has already told the police about it. She needs it. She has told Terry that all this was against her will, she was forced, and she didn’t know the individual. She can’t [lose] the knife. It’s her only link with the truth. Yet, it’s a lie.”

The comments complained of by defendant are comments made in direct response to defense counsel’s closing argument. Moreover, these remarks represented a reasonable inference from the evidence presented. During cross-examination, Aker admitted to having lied under oath on a prior occasion to protect defendant from going to jail.

We also find no merit to defendant’s allegations the prosecutor improperly shifted the burden of proof during rebuttal when the prosecutor stated, “Well, what evidence is contradicting K.S. saying there’s a knife?” Again, the prosecution was responding to the defense counsel’s statements regarding the absence of the knife.

Although the prosecutor must take great care not to prejudice the jury, he may express opinions. Specifically, the prosecutor has the right to comment on the credibility of the witnesses. (People v. Walsh (1980), 80 Ill. App. 3d 754, 400 N.E.2d 587.) Additionally, it is permissible for a prosecutor to comment on the uncontradicted nature of the State’s case, even where the only person who could have contradicted the State’s evidence was the defendant himself. People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.

It is apparent the prosecutor’s comments were not the equivalent of an improper comment on the defendant’s failure to testify or an improper shifting of the burden of proof. The prosecutor’s statement K.S.’s testimony was uncontradicted is not a reference to defendant’s failure to testify, but rather to the strength of the State’s case. As such, no error occurred.

Last, defendant contends he was not proved guilty beyond a reasonable doubt as K.S.’s testimony concerning the offense was neither clear and convincing nor substantially corroborated. In making this allegation, defendant cites the longstanding rule that in cases involving sexual offenses, the testimony of the complaining witness must be clear and convincing or must be substantially corroborated to support a conviction. People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285; People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.

We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. (See People v. Roy (1990), 201 Ill. App. 3d 166, 184-85, 558 N.E.2d 1208, 1221; People v. Cole (1990), 193 Ill. App. 3d 990, 997-1001, 550 N.E.2d 723, 728-31 (Steigmann, J., specially concurring).) Such a standard is contrary to recent Illinois Supreme Court decisions which disapprove of particularized definitions of reasonable doubt. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344; People v. Crow (1985), 108 Ill. 2d 520, 485 N.E.2d 381.) Moreover, there is no legitimate reason to place additional requirements on the victims of sex crimes regarding how persuasive their testimony must be merely because of the nature of the crime. The testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements. The standard cited in Secret and Server is based upon sexist concepts which have no meaning.

Instead, we review the issue of whether defendant was proved guilty beyond a reasonable doubt pursuant to the same standard applied in any other criminal case. The standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Based on the evidence in this case, the jury’s verdict must be affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE LU.ND,

specially concurring:

Both of my esteemed companions on the panel of this case have now rejected the clear and convincing, or substantially corroborated, test. I express no criticism of the majority’s view on the clear and convincing issue. My examination of the evidence in this case.leads to the conclusion that substantial corroboration was present. The spontaneous declaration and the defendant’s statement to another of his intentions easily provided this evidence.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
      In re MARRIAGE OF WILLIAM PHILIPS, Petitioner-Appellee, and LONNEE PHILIPS, Respondent-Appellant.
    First District (5th Division)
    No. 1—87—3537
    Opinion filed June 15, 1990.

      Richard Gigante, of Chicago (Paul R. Jenen, of counsel), for appellant.
    Kalcheim, Schatz & Berger, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal arises out of an action for dissolution of the marriage of Lonnee and William Philips. Lonnee Philips challenges several aspects of the judgment: whether a condominium was converted to marital property; whether the distribution and assignment of property and indebtedness were proper; whether marital assets were dissipated; and whether denial of maintenance was proper.

We affirm.

At the time of the parties’ trial, William Philips (William), a commodities trader, was 45 years old. Lonnee Philips (Lonnee) was 37 years old. William and Lonnee began dating in July 1982. At that time, William was separated from his first wife and lived in an apartment in Water Tower Place in Chicago. Lonnee was then divorced and lived with her minor son in a townhome in North Miami Beach, Florida, provided by her former husband pursuant to their dissolution of marriage decree.

In 1983, William’s wife filed an action to dissolve their marriage. That action became final on March 27, 1984.

On March 29, 1984, William purchased a townhome in Florida, in Lonnee’s name, near the one in which Lonnee lived under her prior divorce decree.

At about that time, the parties located a condominium at 1500 North Astor Street (Astor condominium) in Chicago for purchase. On April 9, 1984, William purchased the Astor condominium for approximately $465,000 in cash from funds in his trading account. William held title to the Astor condominium through an assignment of beneficial interest in a land trust and retained sole power of direction.

On April 21, 1984, William and Lonnee married.

On April 25, 1984, William purchased a 1984 Jaguar for $37,000 in cash in both parties’ names.

On May 7, 1984, William executed an assignment of the beneficial interest in the Astor condominium to himself and Lonnee as joint tenants, but retained sole power of direction. Shortly thereafter, the parties found the property unsuitable and decided to sell it. By virtue of William’s earning capacity, a $250,000 “bridge loan” from Harris Bank was obtained, and, in July 1984, William purchased a condominium at 1418 North Lake Shore Drive (Lake Shore condominium) for $519,000, paying the excess of the purchase price over the loan in cash. Title was held in William’s name.

In October 1984, the Astor condominium was sold for approximately $469,000 and the bridge loan was repaid.

The record indicates William’s income fluctuated during the period of the parties’ relationship and marriage. At the time of the parties’ marriage, William’s net worth was approximately $1.3 to $1.5 million, based on the value of the trading seat, equity in his trading accounts, equity in a loan to a company in which he had invested, as well as other investments.

However, William’s trading accounts began showing debit balances in 1985. As William’s income declined and his expenses remained constant, he withdrew money from his trading accounts to cover those expenses. At the time of trial, the trading accounts reflected debit balances of approximately $85,000.

In May 1985, William filed his petition for dissolution of marriage. A subsequent attempt at reconciliation failed, and he proceeded with the dissolution action.

Thereafter, Lonnee charged $20,000 on William’s credit cards, returning approximately $14,000 worth of goods for cash by May 1986 in order to pay her living expenses during the pendency of the dissolution action. Lonnee also borrowed small sums from friends and rented the Florida townhome to pay her living expenses.

Lonnee presented no motion for temporary maintenance during pendency of the dissolution action.

Following trial proceedings, the trial judge determined the Astor condominium was William’s nonmarital property. And, because William used the $465,000 in proceeds from sale of that property to purchase the Lake Shore condominium, the trial judge determined William was entitled to that amount from the proceeds of the sale of the Lake Shore condominium as a contribution of nonmarital funds to that marital asset.

The trial judge found the 1984 Jaguar automobile to be marital property, having a fair market value of $20,000. The trial judge ordered the automobile to be sold and the first $7,000 of the proceeds from the sale applied to the payment of Lonnee’s attorney fees. Excess proceeds were to be held in escrow pending future petitions for attorney fees. Any remaining proceeds were then to be paid to William.

The trial judge required William to pay the following marital indebtedness: $329,750 in principal and interest owed to the Harris Bank; $150,000 owed personally to Henry Shatkin; $110,000 representing a debit balance in one of William’s trading accounts; $11,069.43 owed on bank credit cards; $20,000 to $30,000 in estimated tax liability for 1986; $17,617.16 owed in real estate taxes for 1986 and 1987 on the Lake Shore condominium; and $4,000 in miscellaneous bills.

Lonnee was ordered to pay, as marital debts: $13,000 in attorney fees and a total of $5,700 owed to several individuals.

The trial judge found Lonnee had used the $20,000 worth of charged clothing for living expenses and, therefore, had not dissipated a marital asset in that amount.

The trial judge also determined Lonnee had presented no evidence to establish that William had dissipated marital assets.

Last, citing the brief duration of the marriage, and because Lon-nee had made no effort to secure employment, the trial judge denied Lonnee maintenance.

Other facts pertinent to the disposition of the issues raised on appeal will be summarized within the context of our opinion below.

Opinion

Lonnee first contends the trial judge erred in concluding William overcame the presumption contained in section 503(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) that the Astor condominium was marital property. Lonnee argues the Astor condominium was purchased in contemplation of the parties’ marriage, citing her own trial testimony that, in January 1984, prior to dissolution of William’s prior marriage, she and William had begun to look for a residence in Chicago. Lonnee also notes that soon after she and William were married, William assigned the beneficial interest in the property to himself and Lonnee as joint tenants. Lonnee contends the transfer created a presumption of a gift of the property to the marital estate. Lonnee also cited In re Marriage of Ohrt (1987), 154 Ill. App. 3d 738, 507 N.E.2d 160, In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068, and In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065, in support of the contention that Illinois courts have created an exception to the general statutory definition of marital property where evidence indicates property is purchased in contemplation of marriage.

Lonnee further notes that although William purchased the Florida townhome in Lonnee’s name and the Jaguar automobile and a tax shelter investment in both parties’ names, he asserted at trial that the townhome was marital property and the other two assets nonmarital in nature. Apparently because the trial judge ultimately concluded, contrary to those assertions, that the townhome was Lonnee’s non-marital property, and the automobile and investment were marital properties, distribution of the Astor condominium to William was somehow inconsistent.

We are not persuaded by Lonnee’s arguments. Section 503(b) indeed creates a presumption that property acquired after marriage and before a judgment of dissolution, including nonmarital property transferred into a form of co-ownership, is marital property. (Ill. Rev. Stat. 1983, ch. 40, par. 503(b).) However, that presumption is rebutted where it is shown, pertinent here, that the property was acquired before the marriage. Ill. Rev. Stat. 1983, ch. 40, par. 503(a)(6).

In the instant case, William purchased the Astor condominium before the marriage. While we are familiar with the line of authority Lonnee relies on, holding that property acquired before a marriage may nevertheless be included in the marital estate, the circumstances of the Astor condominium’s purchase here do not merit application of the rule applied in such cases. We do not read the cases cited by Lonnee as creating an exception to the statutory exceptions provided in section 503(a) as Lonnee suggests. Generally, the cases stand for the rule that, where the parties use common finances to purchase a home prior to, and in contemplation of, marriage, courts will not permit one party to benefit over the other simply because the purchase precedes the marriage. Thus, a residence purchased prior to the marriage may nevertheless be marital property when “marital funds” are used to repay a loan used for the down payment as well as for mortgage payments (see Ohrt, 154 Ill. App. 3d at 742, 507 N.E.2d at 163), or “joint funds” are used for a down payment and those funds, as well as rental income generated from the property, are used to make mortgage payments prior to moving into the home and, during the marriage, the payments are made with “marital funds” (see Malters, 133 Ill. App. 3d at 177-78, 478 N.E.2d at 1074). Here, however, the Astor condominium was purchased entirely with William’s own funds prior to the parties’ marriage. And, we note, it has been recognized that “section 503 *** is intended to protect such property as may have been purchased by one spouse prior to marriage entirely with his or her own funds.” (Stallings, 75 Ill. App. 3d at 99.) We therefore do not conclude that the Astor condominium was improperly considered William’s nonmarital asset.

Lonnee next contends the trial judge failed to consider certain expenditures of, and indebtedness incurred by, William as dissipations of marital assets.

Under section 503(d)(1) of the Act, one of the factors which must be considered in the distribution of marital property in a dissolution action is “the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.” (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)(1).) The issue in determining whether a dissipation is shown is whether the party used marital property for his own benefit for a purpose unrelated to the marriage during a period when only that party had access to the funds. (In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 516 N.E.2d 566.) Whether a given course of conduct constitutes dissipation within purview of the Act depends upon the facts of the particular case. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.) The trial court's division of property may be disturbed only where an abuse of discretion exists and, absent such showing, it is immaterial whether we agree with the trial judge’s distribution.

Lonnee argues the trial judge failed to consider four dissipations of funds by William: $581,395 from William’s personal bank accounts in 1985; $15,000 from the sale in 1986 of a parking space owned in conjunction with the Lake Shore condominium; $91,137 from a 1985 income tax refund; and the act of securing two Harris Bank loans totalling $325,000 with the interest in the Lake Shore condominium.

Lonnee contends the $581,395 amount resulted from William’s manipulation of his financial affairs in such a fashion as to create the impression that he incurred business losses requiring him to borrow in order to maintain his life-style and continue in his trading business. Lonnee cites her own testimony at trial concerning conversations with William in May and July 1986, in which William indicated he was liquidating his assets in order to create a debit balance in his trading account. Specifically, Lonnee claims, the $581,395 figure consisted of $331,395 transferred from William’s trading account into personal bank accounts, and $250,000 representing a loan from Harris Bank.

The following facts aid in understanding the arguments advanced by Lonnee regarding the above-claimed dissipations. William traded as a member of the Chicago Board of Trade and also maintained a trading account at the Chicago Board Options Exchange. William cleared his trading account through Shatkin Trading Company (Shatkin Trading). Equity in the trading account consisted of a combination of amounts in an account used for actual trading and amounts in a cash account. Only the amounts in the actual trading account reflected income for a particular year for tax purposes. If equity in the trading account fell below zero, creating a debit balance, withdrawals from the account would, in effect, constitute a loan for funds from which to trade and for which William was charged interest.

Lonnee derives the $91,137 figure from the fact that William received a tax refund of $109,384 in 1985, $95,000 of which he placed in his trading account. Lonnee argues only $18,247 of the refund constituted nonmarital funds because only $18,247 was carried over from 1983, prior to the parties’ marriage, and applied to 1984 taxes. The balance, Lonnee reasons, was marital property subject to division and, because William failed to explain how he expended those funds, the trial judge should have deemed that expenditure a dissipation.

The $325,000 amount consisted of the initial $250,000 loan noted above, $25,000 of which was repaid in 1985, and two subsequent Harris Bank loans, totaling $100,000. Lonnee asserts the loans were not obtained for any real need, but to create the appearance William’s financial condition had suffered. Lonnee also contends pledging the interest in the Lake Shore condominium as security for the loans violated a preliminary injunction entered against William on February 5, 1986.

First, the record does not support Lonnee’s assertion that William’s borrowing of funds was in violation of any preliminary injunction. The record indicates that on February 5, 1986, Lonnee filed an “EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION.” An order was entered the same day upon agreement of the parties, restraining William from transferring or disposing all marital and nonmarital assets. The order was labeled “RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION.” Although, as the order appears in the record, the words “RESTRAINING ORDER AND/OR” contained in its label have been crossed out with a pen, by its terms the order was to expire in 10 days where not extended by subsequent order. A second order was also entered the same day making the “preliminary injunction” “reciprocal” as to both parties. On February 21, 1986, another order was entered stating that the tax refund check was “enjoined from being dissipated by a prior preliminary injunction.”

Lonnee subsequently petitioned for William to be held in contempt for violation of the “preliminary injunction.” However, she withdrew the petition and sought, thereafter, to have the initial order conformed into one for a preliminary injunction. However, it does not appear from the record that further action was taken to obtain issuance of any preliminary injunction, nor does it appear that the February 5, 1986, order was extended according to its terms. We therefore do not conclude William violated the terms of any preliminary injunction.

William and his accountant, Earl Holtzman, both testified as to William’s financial condition. Holtzman stated William had no income from trading in 1985 and his losses from trading totaled $22,105. Holtzman explained that, in preparing William’s tax returns, Holtzman based a subsequent year’s tax estimate on the tax paid in the previous year. Holtzman testified that a refund of $95,339 was issued for taxes paid in 1984 based on excess taxes paid in 1983. Holtzman stated William’s adjusted gross income for 1985 was a negative $95,104 or, if William’s alimony payments were included, negative $56,000. William received a refund in 1985 totaling $95,905 based on the excess estimated tax payments William made in 1985 and a $43,660 credit applied from his 1984 tax refund.

William testified that he earned approximately $1.1 million in gross income in 1984, approximately $925,000 of which was earned that year prior to marrying Lonnee. As a result of the trading losses he suffered beginning in 1985, William stated, he withdrew from monies he had built up in equity in his trading account from previous years and deposited them in personal checking accounts. William testified he began running a debit balance in his trading account in 1985 because he was spending significant amounts of money. He obtained a $250,000 loan from the Harris Bank to pay income taxes due for 1984 and to replenish equity in his trading account. Later in 1985, he paid $25,000 on the bank loan.

Pursuant to a stipulation between the parties, William was permitted to testify in summary form regarding major expenditures. The record indicates the expenditures included the following approximate amounts: $33,000 on the parties’ wedding reception; $30,000 in attorney fees in connection with an attempt to modify Lonnee’s prior divorce decree; $93,000 in credit card purchases, the majority of which, William testified, were made by Lonnee; $75,000 on furniture and furnishings for the Lake Shore condominium in addition to $101,000 on improvements to that apartment; $3,472.26 per month in alimony and child support from his previous marriage; $94,000 in payments on the two real estate limited partnership investments; $40,000 per year in business expenses; and income taxes totaling $200,000 in 1984 and $160,000 in 1985.

In reviewing the record, we do not believe the trial judge abused her discretion in the distribution of property with respect to Lonnee’s argument that William dissipated marital assets. Although William did voluntarily incur debit balances in his trading account by withdrawing monies and transferring those funds into personal bank accounts, the record does not indicate William used the transferred funds for his own use to the exclusion of Lonnee. Instead, the record indicates William used the funds to permit him and Lonnee to maintain the life-style he had previously provided, and to which the parties were accustomed, during a period in which William earned negative or decreasing income from trading. We also note that the record indicates William’s equity in his trading account, prior to the parties’ marriage, was approximately $300,000. We have difficulty understanding how funds in that amount could be included in such a claim for dissipation given that those funds would be considered a nonmarital asset. Further, because William’s tax refund can be traced, in large part, to William’s income in 1984, the bulk of which was earned prior the parties’ marriage, we cannot conclude a dissipation of that asset occurred upon which to base a claim for dissipation.

Lonnee’s third major contention is that the assignment of non-marital property and division of marital property and indebtedness were against the manifest weight of the evidence. Lonnee argues that the trial judge failed to properly apply the factors contained in section 503(d) of the Act in the assignment of nonmarital property and division of marital property and indebtedness. Lonnee relies, principally, on the same arguments considered above.

On appeal, a property division may only be disturbed upon a showing of an abuse of discretion (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676), and the concern must be whether the distribution is equitable in nature (In re Marriage of Simmons (1981), 101 Ill. App. 3d 645, 428 N.E.2d 1032).

We conclude the record does not indicate an abuse of discretion in the trial judge’s distribution of property and assignment of indebtedness. As noted above, the record indicates William was the sole source of the funds for all of the assets in the parties’ marital estate, as well as their nonmarital estate, with the exception of some personal belongings of Lonnee’s, valued at less than $5,000. We note, as did the trial judge, that the parties’ marriage was one of brief duration and further note that there is no indication Lonnee sacrificed any development of her career for the benefit of William’s.

Last, Lonnee argues the trial judge’s decision to deny Lonnee maintenance was against the manifest weight of the evidence. Lonnee contends she was entitled to maintenance based on considerations of her vocational skills, employability, financial circumstances, the standard of living established during the marriage, and William’s ability to contribute towards Lonnee’s support. Lonnee asserts the trial judge actually punished Lonnee in denying maintenance based on her observation that Lonnee did not attempt to secure employment during the marriage.

First, contrary to Lonnee’s assertion, the General Assembly, in one of the most important changes brought about by the Act, created an affirmative duty, under section 504, upon the party seeking maintenance to pursue employment. Ill. Ann. Stat., ch. 40, par. 504, Historical and Practice Notes, at 528 (Smith-Hurd 1980).

We cannot conclude the denial of maintenance in the instant case constituted an abuse of discretion. (See In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 465 N.E.2d 649.) Lonnee was 37 years old at the time of trial, and the record indicates she enjoyed good health. Lonnee was a high school graduate and had attended two years of classes at two accredited colleges in Florida in addition to taking other classes at an unaccredited institution. She studied psychology and art. The record also indicated that Lonnee had, in the past, worked as a hostess in a restaurant and had sold shoes.

Given the facts of Lonnee’s employability and the property distribution to her, including the Florida condominium, we do not conclude the denial of maintenance was an abuse of discretion.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.

       Prior to his resignation, Justice R. Eugene Pinchara was assigned to and heard oral arguments in the above case. Following Justice Pincham’s resignation, the case was reassigned to Justice Lorenz, who read the parties’ briefs and listened to a tape of the oral arguments.


text:
    TERRY W. McGREGOR, Plaintiff, v. RUAN LEASING COMPANY, Defendant and Counterplaintiff-Appellee (International Harvester Company, Defendant and Counterdefendant-Appellant).
    First District (5th Division)
    No. 1—89—0601
    Opinion filed June 15, 1990.
    Rehearing denied August 14, 1990.

      Arnstein & Lehr, of Chicago (Louis A. Lehr, Jr., Arthur L. Klein, and John T. Wagener, of counsel), for appellant.
    Rooks, Pitts &' Poust, of Chicago (Terrence J. Madden, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows entry of a directed verdict in favor of Ruan Leasing Company (Ruan) on its counterclaim for indemnity against Navistar International Corporation (Navistar), formerly known as International Harvester Corporation, arising out of a strict products liability action in which Navistar and Ruan were named as defendants.

We reverse and remand.

On February 9, 1978, Terry W. McGregor fell, injuring his back, when, while exiting from a truck manufactured by Navistar, the top portion of an aluminum handhold or “grab handle,” used to aid descent from the truck’s cab, became detached because of a missing screw.

The grab handle was vertically mounted to the upper portion of the side of the cab, immediately behind the driver’s door, and consisted of upper and lower handholds. The top part of the upper grab handle was attached to the cab by a single screw as was the bottom part of the lower grab handle. The top of the lower grab handle and the bottom of the upper grab handle were fastened by a shared third screw.

The truck involved was a 1977 model purchased by Ruan from Navistar. Ruan had leased the truck to Union Carbide Corporation (Union Carbide), pursuant to a vehicle lease and service agreement which obligated Ruan to provide all maintenance.

McGregor subsequently filed a two-count complaint, as amended, sounding in products liability against Navistar and Ruan. Count I, against Navistar, alleged the truck was unreasonably dangerous because of “insufficiencies” respecting the grab handle, the grab handle “retention system,” instructions respecting inspection, repair, maintenance, and service of the grab handle, and the truck’s “entry-exit system.” Count II, against Ruan, cited the vehicle lease and service agreement between Ruan and Union Carbide and alleged, in addition to the same insufficiencies above, that the truck was defective because the grab handle was insufficiently attached, was insufficiently “torqued or tightened,” and was “insufficiently serviced, repaired, and maintained.”

In turn, Ruan filed a counterclaim, as amended, against Navistar for indemnity. Ruan alleged no changes or modifications to the truck’s grab handle had been made between the time the truck was purchased by Ruan from Navistar and the time of McGregor’s injury. Further, Ruan alleged it had serviced and maintained the truck in a manner intended or reasonably foreseen by Navistar.

The matter proceeded to trial before a jury with the indemnity aspect severed pending the jury’s determination as to liability on McGregor’s complaint.

At trial, testimony was presented that, prior to delivery of the truck to Union Carbide, Ruan caused the truck to be painted by New-Look Auto & Truck Repair (New Look). In conjunction with the painting process, the screw securing the top part of the upper grab handle had been loosened. Testimony regarding that process and its possible effects was provided through the evidence deposition testimony of Donald Paugh, vice-president of New Look, and the trial testimony of Edward C. Caulfield, a mechanical engineer, and John Michael Stilson, a safety and automotive engineering consultant.

Paugh estimated that the particular truck involved was painted on May 14 or 15, 1977. Paugh testified to having had observed all 33 trucks which had been painted by New Look for Ruan, but stated he did not observe every phase of the painting process. In describing the normal painting process, Paugh stated the lower grab handles were entirely removed in order to paint the truck cabs. That entailed removing the screw which also secured the lower part of the upper grab handle. With respect to the remaining screws securing the top part of the upper grab handle, it was New Look’s policy only to loosen that screw sufficiently to permit the upper grab handle to be rotated upward, away from the area of the cab to be painted, and taped near the roof of the cab. After the painting, the upper grab handle would be rotated into the proper position and both the lower and upper grab handles would be attached by the same screws using a Phillips-head screwdriver. The screws were tightened as tight as they could be by hand. New Look was not given any torque specifications from Navistar or Ruan regarding the required tightness of the screws.

Caulfield testified as an expert on behalf of Navistar regarding how the loosening of screws might affect the necessary “preload,” achieved through applying torque, or tightening, to the screws to adequately secure the grab handle. Caulfield testified “9 to 11 foot-pounds” of torque would be in excess of the amount of tightening of the screws necessary to secure the grab handle to sustain the truck operator’s weight and any amount of added weight caused by the operator pulling on the handle. Caulfield acknowledged that a person using a hand-held Phillips-head screwdriver would be able to achieve the proper level of torque to secure the screws. He indicated that an average individual could achieve approximately “100-inch pounds,” or “SVb footpounds,” using such a screw driver. Caulfield also testified that the operator and service manuals for the truck did not set out or recommend the proper torque for the grab handle screws. In reference to the painting process in which the screw securing the top of the grab handle was loosened and, after painting, retightened, Caulfield testified that, if the screw were retightened by hand as tightly as possible, any loss of integrity to the joint by loosening the screw would be restored.

Stilson was qualified as an expert and testified on plaintiff’s behalf as to his opinions concerning alleged defects which might have contributed to the cause of plaintiff’s injury. Stilson determined that the grab handle fastening system was sensitive to road vibrations and that such vibrations could cause a screw to loosen, unwind, and fall out. He based his opinion on several tests he conducted using a body panel of a truck similar to the truck from which plaintiff had fallen. Stilson testified that, in the vibration tests, screws tightened to 9 to 11 footpounds of torque did not completely vibrate out of the body panel.

At the close of evidence, the trial judge instructed the jury, pursuant to an Illinois Pattern Jury Instruction, that liability against defendants was premised on one or more of the following defective conditions:

“a. The grab handle fastener system on the truck was insufficient;
b. The instructions regarding inspection or torquing of the grab handle fastener system on the truck were insufficient; and
c. The grab handle was structurally insufficient.” Illinois Pattern Jury Instructions, Civil, No. 400.01 (1968).

The jury returned a general verdict in favor of McGregor and against defendants, awarding $750,000 in damages.

Ruan subsequently moved for a directed verdict on its indemnity counterclaim. The trial judge granted Ruan’s motion, observing that, as the action predated the Contribution Act (see Ill. Rev. Stat. 1987, ch. 70, par. 301), Ruan could not be liable in light of a finding pursuant to a theory of strict products liability.

This appeal followed.

Opinion

Navistar correctly points out that, to be successful in its indemnity action, Ruan must show the defective condition causing Mc-Gregor’s injury existed when the truck left Navistar’s control (see Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 338 N.E.2d 857), and concedes Ruan may rely on McGregor’s proof at trial to do so. Navistar’s argument, essentially, however, is that under the rule announced in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, when the evidence is viewed in its aspect most favorable to Navistar, it does not so overwhelmingly favor Ruan as to preclude a contrary verdict.

We must agree.

Initially, we note that inherent in the general verdict rendered, based on the instructions given, is the jury’s determination that an insufficiency existed with regard to the “grab handle,” the “grab handle fastener system,” or “the instructions regarding inspection or torquing of the grab handle fastener system” which constituted a design defect. Logically, we must assume from its finding that the jury also determined Navistar and Ruan each created defects giving rise to liability.

Nevertheless, after reviewing testimony in the record in light of the standard stated in Pedrick, we do not conclude that Ruan was entitled to a directed verdict. Testimony was presented at trial that, after the truck had been delivered by Navistar to Ruan, the cab of the truck had been painted at Ruan’s direction. In the painting process, the particular grab handle screw, the absence of which directly caused McGregor’s injury, was loosened. While certain testimony in the record indicates hand tightening the screw might have been sufficient to secure the grab handle, thereby preserving the integrity of the fastening system, there is no testimony that the particular screw involved was so sufficiently tightened even to that extent. We believe an inference therefore exists that, while in Ruan’s control, the particular screw may not have been adequately tightened after painting by New Look and that that inference must preclude a directed verdict in Ruan’s favor.

Reversed and remanded.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK HARMON, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2362
    Opinion filed June 15, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Irene D. Cavanaugh, Assistant Public Defender, of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial, defendant, Derrick Harmon, was found guilty of battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—3) and fined $90. On appeal, defendant contends that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. We affirm.

The complaining witness, Werdell Huberty, testified on behalf of the State that at 1 a.m., on March 20, 1988, he had just begun his shift as a security guard at Burger King in Evanston, Illinois. He was dressed in uniform and carried a baton and handcuffs. The security guard whom he relieved advised him to keep watch over a certain group of boisterous customers seated at one of the tables. When he saw these customers filling their drinking cups from a one-liter Coca-Cola container, which apparently had not been purchased on the premises, he asked them to leave. He then observed defendant, who was a member of that group, remove flowers and dirt from an adjacent planter and scatter them on the floor. Afterwards, defendant went to the men’s room, while a Burger King employee summoned the police.

Complainant approached defendant as he came out of the men’s room and informed him that he would have to remain in the restaurant to await the police, who were on their way. Defendant refused and walked around complainant, towards the exit doors. Complainant followed defendant and again demanded that he remain in the restaurant, stating that if he refused he would have to be handcuffed, but defendant pushed him in the chest, causing him to hit a wall. Complainant responded by striking defendant on the back of the head with the baton. Defendant then ran out of the restaurant.

Defendant testified on his own behalf that at 1 a.m. on March 20, he was at the restaurant with his girlfriend, Joann Greaves. When he came out of the men’s room, complainant, who was then holding a “billy club” with both hands, hit him on the chin and ordered him to remain in the restaurant. Defendant testified that he attempted to leave, but complainant came behind him and struck him twice on the back of the head and caused him to fall. He then got back on his feet and pushed complainant into what appeared to be a garbage can. Defendant admitted that he was playing with the plant, but denied throwing the plant onto the floor.

Joann Greaves testified on behalf of defendant that when defendant came out of the men’s room she heard complainant admonish defendant to remain in the restaurant. At this point, she turned her head in another direction, and when she turned back a few minutes later, she saw complainant hit defendant on the back of the head. She was not asked to testify about the relative positions of defendant and complainant when the blow was struck.

At the conclusion of the closing arguments, the trial judge stated that he found complainant’s testimony to be “totally credible,” but found defendant’s testimony to be “totally incredible.” Moreover, he stated that Greaves’ testimony “ substantiate^]” complainant’s testimony. He then found defendant guilty of battery and fined him $90.

On appeal, defendant contends that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. We disagree.

Generally, once the issue of self-defense is interposed by the introduction of some evidence, a requirement satisfied by defendant’s testimony in this case, it becomes the State’s burden to prove defendant guilty beyond a reasonable doubt as to that issue together with all other elements of the offense. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Cochran (1989), 178 Ill. App. 3d 728, 533 N.E.2d 558.) The elements of self-defense include the following:

“(1) that the force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened was unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable.” (People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.)

When, in the judgment of the trier of fact, any of the evidence adduced at trial negates the existence of any one of these elements beyond a reasonable doubt, the State has carried its burden. People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.

In raising the issue of self-defense, defendant contends that complainant was the aggressor. While admitting that he pushed complainant, defendant testified that the pushing occurred only after complainant struck him on the head. Complainant testified that he struck defendant only after defendant pushed him against a wall. Thus, according to complainant, it was defendant who initiated the physical contact. The trier of fact was not compelled to accept defendant’s version of the incident (Seiber, 76 Ill. App. 3d 9, 394 N.E.2d 1044), and in fact, specifically rejected that version, stating that defendant’s testimony was “totally incredible.” Therefore, in accepting complainant’s testimony, the trial court reasonably could have concluded that defendant, not the complainant, was the aggressor.

Moreover, defendant concedes that complainant had a right to detain him under section 7 — 6 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 7—6). Section 7—6 provides, in conjunction with section 7—5 (Ill. Rev. Stat. 1987, ch. 38, par. 7—5), which it incorporates by reference, that a private citizen making a lawful arrest is normally justified in the use of force which he reasonably believes to be necessary to effect the arrest short of force which can cause death or great bodily harm. (Ill. Rev. Stat. 1987, ch. 38, pars. 7—6, 7—5.) Defendant, however, contends that the force employed by complainant was unlawful insofar as it was excessive and that his pushing therefore was a justifiable response to the excessive force used in detaining him. Defendant’s contention would be validly predicated if his version of the incident, that complainant struck him first, had not been rejected by the trier of fact. However, the trier of fact accepted the State’s testimony that complainant was pushed before he exercised any force other than a verbal threat to use handcuffs if defendant refused to wait. Accordingly, the trial court could well have found that the threatened use of force by complainant was lawful and therefore did not justify defendant’s conduct in pushing the complainant.

Defendant further maintains that complainant’s version of the incident was patently false because it would have been impossible for complainant to strike defendant on the back of the head when defendant was facing him. The record, however, discloses that complainant testified that defendant was standing in front of complainant and to his side when struck by the length of the baton, thus making the striking on the back of the head plausible. Defendant also maintains that his testimony was corroborated by Joann Greaves, who testified that she saw complainant strike defendant on the back of the head. The record, however, discloses that Greaves did not observe the events that occurred immediately before the striking, and therefore, she was unable to corroborate defendant’s testimony that the striking preceded the pushing. Nor was she asked to corroborate defendant’s contention that he was standing with his back to complainant when he was struck.

There is therefore insufficient reason for this reviewing court to substitute its evaluation of the credibility of the witnesses’ testimony for that of the trial court. “A reviewing court will not substitute its judgment for that of the trier of fact in matters of weight, credibility, or conflicting evidence, and will not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt.” (People v. Bryant (1984), 123 Ill. App. 3d 266, 272, 462 N.E.2d 780, 784.) Accordingly, we affirm the trial court’s judgment of conviction.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.