text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR WARE, Defendant-Appellant.
    First District (1st Division)
    No. 1—85—2462
    Opinion filed December 27, 1988.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Susan J. Crane, and Patrick M. Brady, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Victor Ware (defendant) was indicted for the offenses of attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 9 — 1) and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4). Following a bench trial, defendant was convicted of attempted murder and sentenced to a 15-year prison term. Defendant appeals his conviction and sentence, contending that the trial court erred in excluding relevant testimony supporting his theory of self-defense, that defendant was not proven guilty of attempted murder beyond a reasonable doubt, and that the trial court abused its discretion in imposing a 15-year prison sentence. We affirm.

Prior to defendant's trial for his involvement in a shooting incident on January 12, 1984, in which Steven Perry sustained four bullet wounds and was subsequently hospitalized in “nonsalvageable condition,” defense counsel agreed that Perry’s deposition could be taken in lieu of bringing a jury to the hospital to hear his testimony. In a subsequent pretrial hearing, the trial court found “good cause” to admit the video-taped deposition at trial instead of a transcript of the deposition. In ruling on objections concerning Perry’s deposition testimony, the court also deleted testimony relating to Perry’s involvement with the Black Gangster Disciple gang over defense counsel’s objection.

At trial, the State and defendant presented conflicting versions of the events surrounding the shooting incident. The State presented the following evidence. Perry testified that at approximately 7 p.m. on January 12, 1984, Edgar Lofton telephoned him and asked him to meet Lofton at Church’s Chicken. While Perry awaited Lofton’s arrival at Church’s, defendant, who was married to Perry’s sister Kim, approached and requested that Perry accompany him to meet some girls. Perry and defendant drove in defendant’s car to defendant’s apartment at 2222 South State Street in Chicago. Perry did not think it was unusual to “go chase women with his brother-in-law,” as he described his relationship with defendant as “real close.”

Upon their arrival at the apartment building, Perry followed defendant into his fourth-floor apartment. As Perry turned to lock the door, he heard defendant say, “Aha, I got you now.” Defendant then shot Perry four or five times from a distance of 15 feet. Perry thereafter opened the door and ran down the stairs of the building, while defendant continued to fire shots at him and struck him several times. Perry finally collapsed into the doorway of an apartment on the first floor.

Perry further testified that his sister Kim, having previously been hospitalized for attempting suicide because defendant was always “jumping” on her, was living with Perry and their mother at the time of these events. These circumstances notwithstanding, Perry stated that he did not provoke defendant or have any personal problems with him, and that he knew of no reason why defendant would want to harm him. Perry also acknowledged a previous conviction for pickpocketing.

Chicago police officers Thomas Chuchman and Debra Brown testified that Perry told them at the scene that defendant shot him. Chuchman also testified that defendant telephoned his mother while Chuchman was at defendant’s mother’s house, and that when defendant later arrived there pursuant to Chuchman’s request, his left forearm was wrapped up and he had bloodstains on his shirt. Chuchman then took defendant to Mercy Hospital, where the doctor told him that defendant’s injury was a possible bullet wound.

Defendant refused to sign a statement prepared by Assistant State’s Attorney Lori Levin after an interview Levin conducted of defendant at Mercy Hospital in the early morning hours of January 13, 1984. Nonetheless, Levin testified as to their conversation. Defendant told Levin that he met Perry at Church’s at Perry’s request to discuss his wife’s moving out of the house. After he refused to give Perry Kim’s clothes, Perry pulled out a gun and forced him to drive to defendant’s apartment. Once at the apartment, Perry ran one way, they tussled, Perry ran the other way, and then defendant shot at him four times. Defendant never mentioned that Perry had a knife or that he saw any witnesses to the occurrence.

Edgar Lofton testified that he telephoned Perry at defendant’s request and told Perry defendant would be at Church’s. He admitted that his testimony differed from his earlier representation that he had never telephoned Perry, explaining that he changed his story after he was informed by police that they were contemplating charging him with conspiracy to commit murder.'

Finally, witnesses from the Chicago police department who investigated the scene testified for the State. Officer Brown recovered live shell casings and two empty casings 25 feet from the first-floor apartment where Perry was lying and three cartridges on the stairwell between the middle and bottom stairs. The State and defendant stipulated that four live cartridges and six discharged cartridges were examined in the crime laboratory and that the discharged cartridges were fired from the same weapon. Detective Edward Schmidt discovered a trail of blood which led from the first-floor apartment up the stairwell to the fourth-floor landing. He also discovered blood on the outside of the door of defendant’s apartment and blood on the carpeting in the apartment approximately 10 feet from the door.

The factual scenario presented by defense witnesses differed from that presented by the State. Defendant testified that Perry telephoned him at approximately 7 p.m. while he was at his sister Debra Ware’s apartment with his other sister Kermitt and Lajuanna Newman and requested that defendant meet him at Church’s to discuss defendant’s wife Kim. At Church’s, defendant refused Perry’s request for Kim’s clothes. Perry then declared that he would shoot defendant if he did not comply with his request and thereupon pulled out a gun and told defendant to drive to his apartment.

There, Perry ordered defendant into the building, locked the door when the two entered his apartment, pointed the gun at defendant, and demanded Kim’s clothing. After defendant again refused, Perry pulled back the hammer of the gun and it fired. A bullet struck defendant’s left hand, and defendant lunged at Perry. The two struggled, during which time the gun discharged several times, with the gun finally falling to the floor. Perry then opened the door and ran out. Defendant picked up the gun and, not seeing Perry in the hallway, headed for the front stairs. As he headed down the hallway, he heard Newman yell, “Victor, watch out,” and turned to observe Perry coming at him with a knife. Defendant fired twice, and Perry went down the back steps. Defendant then descended the front stairs to his sister’s apartment on the second floor, dropping the gun along the way.

Several witnesses corroborated defendant’s testimony as to specific events. Defendant’s sister Kermitt testified that Perry called her apartment on January 12, 1984, and requested to speak to defendant. Steven Anderson and John Frank Harris testified that they were in the parking lot when they noticed defendant and Perry, who was carrying a gun by his side, enter the building. Newman testified that as she entered the fourth-floor hallway, she observed defendant bent over, holding his stomach, and Perry running towards defendant yielding a knife. She hollered to defendant to “watch out” and then ran back down the stairs to Debra’s apartment, where she heard a few gunshots. Anderson testified that about 10 minutes later while he was on the second floor in the stairwell, Perry pushed him aside and rushed down the stairs, carrying a knife. Kermitt and Newman also testified that defendant later returned to Debra’s apartment with his wrist bleeding. Newman stated that defendant told them Perry pulled a gun on him, shot him and then a struggle ensued. None of these witnesses related these events to police.

In addition, defendant called Chicago police officer Popovitz and Mary Ann Furlong, a crime lab technician with the Chicago police department, to corroborate his testimony. Popovitz testified to a conversation with Perry in the hospital 13 days after the shooting, wherein Perry recounted that he and defendant went to defendant’s apartment to pick up Kim’s clothes. Popovitz also wrote in his police report that defendant pulled a gun on Perry as he was “approaching” defendant’s apartment. Furlong testified that defendant’s type of blood was found on the living room floor of his apartment, and defendant’s and Perry’s types of blood were found on defendant’s trousers and shoes.

Defendant’s last corroborating -witness, Ida Boyd, who was a friend of Perry and of defendant, testified that Perry told her four days prior to the shooting that because he was tired of the way defendant treated his sister, he was going to persuade one of his friends to “kill him and shoot him.” Boyd did not tell anyone about this conversation until she related it to defendant a year after the shooting.

A number of witnesses testified as to Perry’s reputation in the community. Boyd stated that Perry was in a gang and was always in trouble. Anderson stated that Perry was “wild,” “off like,” and “always want[ed] to make a move on something.” Kermitt stated that people’s opinion of Perry was bad. On the State’s rebuttal, Lofton testified that Perry was a Black Gangster Disciple.

On appeal, defendant initially contends that the trial court erred in excluding testimony relevant to his self-defense theory that Perry was the initial aggressor. Defendant first directs us to the trial court’s refusal, on defendant’s cross-examination of an attending physician, to admit testimony concerning a report of a psychiatric examination taken of Perry 12 days after the shooting. Defense counsel, in an offer of proof, represented that the consultation report by Dr. Johnson indicated that Perry had “a history of hostility and belligerence towards the staff and that there is an impression that some amount of hostility and belligerence appears to be the norm for Perry.” Defendant also directs us to testimony elicited from Perry that he associates with members of the Black Gangster Disciples and the trial court’s exclusion of this testimony because there was no indication that the crime was gang-related or evidence that Perry was a member of the gang.

It is well established that when a theory of self-defense is raised in a battery or homicide case and defendant provides some evidence that the victim was the aggressor, evidence of the violent character of the victim may be introduced as relevant, circumstantial evidence to show that the victim was the initial aggressor. (People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732; People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292; People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107.) We first recognize that evidence of a complaining witness’ aggressive and violent character or disposition may be relevant to support a theory of self-defense for two different and independent purposes: (1) to show the defendant’s knowledge of the victim’s violent tendencies to demonstrate the reasonableness of the defendant’s state of mind in acting in self-defense, and (2) to support the defendant’s assertion that the victim was the initial aggressor where there are conflicting accounts of the incident. People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018; People v. Buchanan (1980), 91 v. App. 3d 13, 414 N.E.2d 262; People v. Fischer (1981), 100 Ill. App. 3d 195, 426 N.E.2d 965.

“These distinct purposes serve different functions and carry-different requirements as to the defendant’s knowledge of the deceased’s character and reputation. [Citation.] When used for the first purpose, the defendant must have known the information concerning the deceased when the act of self-defense occurred. *** A requirement that the defendant knew of the deceased’s propensity for violence is unrelated to the second purpose, however. Evidence that the victim was a violent person or committed violent acts helps corroborate the defendant’s testimony that the deceased was the initial aggressor; the defendant’s lack of knowledge concerning the deceased’s reputation for character does not affect the relevancy of evidence offered for this purpose.” People v. Buchanan (1980), 91 Ill. App. 3d 13,16, 414 N.E.2d 262, 264.

Defendant in the instant case argues that the excluded evidence should have been admitted for the second purpose — -to show that Perry was the initial aggressor. While defendant need not have knowledge of the victim’s aggressive behavior for the evidence to be admissible for this purpose, the evidence must nevertheless be appropriate. (See People v. Lynch (1984), 104 Ill. 2d 194, 201-03, 470 N.E.2d 1018, 1020-21.) A basic precept for determining whether proof is appropriate to admit into evidence is its relevancy.

Evidence is relevant which tends to prove or disprove a disputed fact or tends to make a point in issue more or less probable. (People v. Jones (1987), 161 Ill. App. 3d 688, 515 N.E.2d 166; People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659; People v. Bouska (1983), 118 Ill. App. 3d 595, 455 N.E.2d 257.) To be probable, it must be tested in the light of logic, experience and accepted assumptions as to human behavior. (Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768, 769.) The initial determination of relevancy is within the sound discretion of the court and will not be reversed absent an abuse of that discretion. People v. Jones (1987), 161 Ill. App. 3d 688, 696, 515 N.E.2d 166, 171; People v. Hunter (1984), 124 Ill. App. 3d 516, 533, 464 N.E.2d 659, 674.

We find that the trial court did not abuse its discretion in finding the evidence in issue irrelevant. The psychiatric report here was taken 12 days after the shooting incident while Perry was hospitalized and nursing critical wounds. Logic, experience, and accepted assumptions as to human behavior suggest that any finding of beli-gerent behavior on the part of Perry were attributable to the shooting and the extensive injuries he sustained as a result of the shooting. This report would not make it more probable that Perry was the aggressor on January 12, 1984. Likewise, the testimony that Perry associated with gang members does not make it more probable that he performed specific acts of violence on January 12, 1984. Perry did not state that he was a gang member, nor was there any evidence showing he performed any acts of aggression in his association with gang members.

In People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018, the supreme court found that the commission of a battery is prima facie probative of aggressive violent tendencies and that convictions for crimes of violence are reasonably reliable evidence of a violent character. (104 Ill. 2d at 203, 470 N.E.2d at 1021.) Unlike Lynch and the other cases defendant cites where specific incidents of aggression were in issue, the testimony here is too general and indefinite to be viewed as reliable evidence and prima facie probative of aggressive violent tendencies.

Defendant next maintains that the State failed to meet its burden of proving beyond a reasonable doubt that defendant did not act in self-defense. To support his contention, defendant argues that the State’s case rested almost totally oñ a witness whose testimony was improbable, conflicting and contradicted and that defendant’s testimony was corroborated and more believable.

In reviewing the testimony presented by the State and the defense here, we must bear in mind that the function of a trial court in nonjury cases is to determine the weight and credibility of the testimony and to resolve conflicts (People v. Jackson (1978), 59 Ill. App. 3d 1004, 1007, 376 N.E.2d 685, 687), and its determination should not be disturbed unless manifestly erroneous (People v. Deming (1980), 87 Ill. App. 3d 953, 959, 409 N.E.2d 352, 357). After a careful review of the evidence in this cause, we do not find that the trial court’s determination as to the credibility of the witnesses was manifestly erroneous.

First, while it is established that a conviction based upon testimony that is improbable, unconvincing and contrary to human experience requires a reversal (People v. Garner (1974), 19 Ill. App. 3d 728, 312 N.E.2d 678; People v. Smiley (1975), 32 Ill. App. 3d 948, 949, 337 N.E.2d 290, 291), we do not find that Perry’s testimony reached that level. The portions of Perry’s testimony that defendant refers us to — that Perry forgot his meeting with Lofton when he left Church’s with defendant, that Perry went looking for girls with his sister’s husband, and that Perry harbored no ill will toward defendant despite defendant’s treatment of his sister — do not demonstrate that his testimony regarding the shooting incident is highly incredible.

Secondly, the fact that the State’s case rested substantially on Perry’s testimony is not determinative. It is established that the testimony of one credible witness, if positive, is sufficient to convict even where testimony is contradicted by the accused (People v. Tribett (1981), 98 Ill. App. 3d 663, 681, 424 N.E.2d 688, 701), and conflicting testimony and corroboration of a defendant’s testimony do not require a reversal where the prosecution presents sufficient evidence to convict (People v. Dixon (1976), 39 Ill. App. 3d 132, 136, 350 N.E.2d 193, 196).

Thirdly, there is sufficient evidence in the record to support the court’s finding that Perry’s testimony is believable, and the contrary evidence presented by the defense is not significant enough to hold that the court’s finding was manifestly erroneous. The State presented some evidence to corroborate Perry’s testimony. Police officers who responded to the scene immediately after the occurrence testified that Perry stated, while he was lying injured on the floor, that defendant shot him. An assistant State’s Attorney testified that following the shooting defendant stated that after he tussled with Perry, defendant shot at him as Perry “ran in another direction.” Live shell casings and empty casings were also found at the scene 25 feet from the first-floor apartment where Perry was found, substantiating Perry’s testimony that defendant continued to shoot at him as he was running down the stairs.

Furthermore, the testimony of most of the defense witnesses was questionable. Although Newman testified she observed what happened in the fourth-floor hallway, she knew defendant, and was a friend of his sister, she never called the police. Likewise, Anderson, who testified he observed Perry running down the stairs with a knife, never related the incident to police at the scene. Boyd, a friend of both defendant and Perry, never told defendant about Perry’s threat to kill him until more than a year after the shooting. Defendant also did not relate significant facts to the police shortly after the shooting, including the fact that Anderson and Newman observed Perry with the gun and the fact that Perry had a knife. Defendant’s, Newman’s and Anderson’s testimony that Perry had a knife appears to be an obvious fabrication, as the knife was not found on Perry or at the scene when police arrived shortly after the shooting, and it is incredulous to believe that Perry, after being shot and fleeing the apartment knowing defendant had the gun, would then return in the hallway with a knife.

The only nonquestionable evidence supporting defendant’s story is the testimony from a police officer that Perry told him two weeks after the shooting that he went to defendant’s apartment to retrieve his sister’s clothing; physical evidence that defendant’s type of blood was found 10 feet from the door; that defendant had a bullet wound in his left wrist; and that defendant’s and Perry’s blood types were found on defendant’s clothing. We do not find this evidence sufficient to hold that the trial court’s finding as to the credibility of the witnesses was manifestly erroneous.

Defendant’s final contention is that the trial court abused its discretion in sentencing defendant to a 15-year prison term by failing to consider mitigating aspects about the circumstances of the offense, failing to adequately consider defendant’s rehabilitative potential, and improperly considering the hostility between defendant and his wife in aggravation.

The record reveals that the trial court followed the statutory framework in imposing defendant’s sentence. It does not indicate, as defendant suggests, that the court was improperly preoccupied with the victim’s injury in aggravation and did not consider defendant’s mitigating attributes. It is clear that a court may consider the degree of harm as a aggravating factor in determining the exact length of a particular sentence. (People v. Saldivar (1986), 113 Ill. 2d 256, 269, 497 N.E.2d 1138, 1143.) The court here noted the degree of harm to the victim, but also noted a number of other aggravating factors, including defendant’s lack of remorse, his danger to society, and his desire to kill the victim, as evidence by his plotting to kill the victim, chasing him, and firing numerous shots at him.

Moreover, the court commented on defendant’s age of 26, his good education, and his lack of a criminal record. The court stated that it weighed these mitigating factors against the possibility of giving defendant an extended term. The sentence imposed of 15 years for an offense with a statutory sentence range of 6 to 30 years also suggests that the court weighed these mitigating factors.

Finally, we do not find that the court improperly considered the hostility between defendant and his wife in aggravation. The court’s comments regarding defendant’s hostile relationship with his wife were made in response to defendant’s negative statements about his wife and during the court’s remarks concerning defendant’s attitude and lack of remorse. There is no indication that the court considered this as an aggravating factor. Furthermore, even if the court did consider defendant’s hostility with his wife as a factor, a sentencing court may inquire into a defendant’s moral character, his social environments, and the stimuli which motivate his conduct. (People v. Adkins (1968), 41 Ill. 2d 297, 242 N.E.2d 258.) It was the State’s position at trial that the shooting was an act of revenge towards defendant’s estranged wife aimed at the victim. Since defendant’s comments at sentencing indicated that hostile feelings towards his wife still existed, the trial court could properly consider this fact in sentencing.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    STEPHEN JACKSON, Plaintiff-Appellant, v. THE VILLAGE OF ROSEMONT et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—3451
    Opinion filed December 30, 1988.

      PINCHAM, J., specially concurring.
    Gregory R. Sun, of Chicago (Lisa Dedmond, of counsel), for appellant.
    Peter M. Rosenthal and Katherine S. Janega, both of Rosenthal, Murphey, Coblentz & Janega, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Stephen Jackson, appeals from an order of the circuit court of Cook County dismissing his amended complaint for failure to serve a statutory notice of his claim upon defendant, the Village of Rosemont, a municipal corporation and owner of the Rosemont Horizon Stadium pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 101 et seq.). On appeal, plaintiff contends that (1) the village’s failure to register its ownership of the Rosemont Horizon pursuant to “An Act in relation to the use of an assumed name in the conduct or transaction of business ***” (Assumed Business Name Act) (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.) precluded it from asserting its notice defense and, in any event, (2) his action can proceed against the Rosemont Horizon as an unregistered fictitious entity and a judgment enforced against its assets. For the reasons set forth below, we affirm.

On June 21, 1985, plaintiff attended a wrestling match event at the Rosemont Horizon and was injured when he slipped and fell on a stairway in the stadium. On December 9, 1986, plaintiff filed a complaint in the circuit court of Cook County, naming as defendants the Village of Rosemont and the Rosemont Horizon Stadium, “an unincorporated association”; the complaint did not contain any allegation that the village was insured or that plaintiff had served notice of his claim upon the village pursuant to section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). Plaintiff subsequently amended his complaint, adding a paragraph alleging (1) that the Rosemont Horizon was not listed with the Secretary of State as a corporation or with the Cook County clerk’s office on its assumed name register and (2) asking that judgment be entered against the Rosemont Horizon and “its unknown owner or owners” pursuant to the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.).

The village filed two section 2 — 619 motions to dismiss plaintiff’s complaint (111. Rev. Stat. 1985, ch. 110, par. 2 — 619). One motion sought dismissal based on plaintiff’s failure to serve a notice of claim or file a lawsuit within one year from the date of plaintiff’s injury as required by sections 8 — 102 and 8 — 103 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 8 — 102, 8 — 103) and the second motion sought dismissal of the Rosemont Horizon as a defendant on the ground that it does not have the legal capacity to be sued. In response, .plaintiff argued that his complaint had been timely filed within the two-year limitation period for personal injury claims (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202) and that the village and the Rosemont Horizon could not invoke the Tort Immunity Act’s notice requirement because the Rosemont Horizon was not registered under the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.).

Following a hearing on the motions to dismiss, the trial court dismissed plaintiff’s complaint for failure to timely serve notice upon the village, and this appeal followed.

Defendants argue, and the trial court so held, that the Tort Immunity Act (111. Rev. Stat. 1985, ch. 85, par 1 — 101 et seq.) is controlling in this matter. Specifically, section 8 — 102 of the Act provides:

“Within 1 year from the date that the injury or cause of action *** accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity *** must serve, either by personal service or by registered or certified mail, *** a written notice on the Secretary or Clerk, as the case may be, for the entity against whom *** the action is contemplated a written statement, *** giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.”

Pursuant to section 8 — 103 of the Act, if notice is not served as required, any civil action against a local public entity will be dismissed and the person to whom a cause of injury accrued will be forever barred from further suing. (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 103.) Accordingly, since plaintiff’s action was filed approximately 18 months after his injury accrued, defendants argue his action is barred.

On the other hand, plaintiff argues that the village is estopped from raising the defense of his failure to timely file a notice of injury pursuant to the Tort Immunity Act because of its corresponding failure to register its ownership of the Rosemont Horizon pursuant to section 1 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4), which provides in pertinent part:

“No person or persons shall conduct or transact business in this State under an assumed name *** other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the County Clerk of the County in which such person or persons conduct or transact *** such business, a certificate setting forth the name under which the business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons owning, conducting or transacting the same, with the post office address or addresses of such person or persons ***.”

Pursuant to section 6 of the Act, if a certificate is not filed as required, and some of the owners are unknown, civil actions may be brought against such persons by filing suit against the business under its assumed name, naming the known owners and designating as “Unknown Owners” the other persons transacting business under the assumed name. It further provides for judgment and execution against the assets of the business and sets forth the procedure for naming as parties defendant such of the “Unknown Owners” whose identity becomes known. (Ill. Rev. Stat. 1985, ch. 96, par. 8a.) Accordingly, plaintiff’s contention appears to be that since the identity of the village as the owner of the Rosemont Horizon was allegedly not immediately discoverable because of its failure to register under the Act, the limitations notice requirement of the Tort Immunity Act should merely be disregarded as a sanction against the village or, in effect, tolled until he ascertained the village’s identity.

We agree with the trial court that the true essence of plaintiff’s argument is premised on the “discovery rule” (see Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656), i.e., because the Rosemont Horizon “was operating under the name of Rosemont Horizon and not under the name of Village of Rosemont doing business as the Rosemont Horizon,” plaintiff could not discover the identity of the village tortfeasor. The discovery rule represents the judiciary’s attempt to alleviate the harsh results from the literal application of statutes of limitations where plaintiffs are ignorant of their injuries, such as in medical malpractice cases. The rule postpones the starting of the period of limitations until the injured party knows of or should have known of his injury. (Bates v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 137, 438 N.E.2d 1250.) However, our courts have refused to extend the discovery rule to apply to cases where the undetermined fact is not the existence of the injury, but rather the identity of the tortfeasor. (Harms v. Northern Illinois Gas Co. (1979), 70 Ill. App. 3d 628, 388 N.E.2d 1127; Guebard v. Jabaay (1978), 65 Ill. App. 3d 255, 381 N.E.2d 1164.) As stated above, plaintiff here is merely arguing that he did not know who the defendant was supposed to be. The discovery rule is therefore clearly inapplicable to the case before us. Accordingly, we hold that the trial court properly dismissed plaintiff’s complaint as time barred.

In light of our disposition above, we briefly comment that the Assumed Business Name Act is not applicable to municipal corporations. The Act refers to persons and individuals and expressly excludes corporations “duly organized under the laws of this State.” (Ill. Rev. Stat. 1985, ch. 96, par. 7.) A village or a city is a voluntary corporation (Leviton v. Board of Education (1940), 374 Ill. 594, 30 N.E.2d 497), not a person. A village is identified as a municipality, not a person, by the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §1). As a municipality, it is a creature of the legislature. (People ex rel. Montgomery v. Lierman (1953), 415 Ill. 32, 112 N.E.2d 149.) Under the Tort Immunity Act, a municipality is a “local public entity” and therefore entitled to the benefits and detriments of the Act. (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 206.) To suggest that the Village of Rosemont is a person within the meaning of the Assumed Business Name Act because it either registers its name or the name “Rosemont Horizon” under the Act defies the ordinary meaning of “person” or “persons” under the statute.

We further observe that the Assumed Business Name Act cannot be utilized to extend a statute of limitations period. In Gulley v. Fountalas (1987), 153 Ill. App. 3d 100, 505 N.E.2d 1176, the plaintiff was precluded from naming additional discovered parties as defendants pursuant to the Act after the personal injury statute of limitations had run where she failed to comply with the Act by suing the “unknown owners” in her original complaint. In the present case, we see no reason to distinguish between a personal injury statute of limitations and the notice limitation requirement of the Tort Immunity Act in existence at the time based upon plaintiff’s inability to immediately discover the village’s identity as the owner of the Rosemont Horizon.

We also reject plaintiff’s theory that the Rosemont Horizon is a legal entity that can be sued. The record discloses that the Rosemont Horizon is owned and operated by the Village of Rosemont. A party to litigation must have a legal existence, either natural or artificial, to sue or be sued. (Precision Components, Inc. v. Estate of Kuntz (1983), 112 Ill. App. 3d 309, 445 N.E.2d 449.) The Rosemont Horizon Stadium is not a legal entity — it is merely a building operated by the village — and is therefore not subject to suit. See Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 496 N.E.2d 323.

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

Affirmed.

LORENZ, P.J., concurs.

JUSTICE PINCHAM,

specially concurring:

Although the parties agreed during oral argument of the instant cause before this court that there were no signs or posted information in or around the Rosemont Horizon (or elsewhere) which indicated that it was owned and operated by the Village of Rosemont, plaintiff did not allege that the village in any way endeavored to conceal its ownership and operation of the Horizon. Nor did plaintiff assert any inability, by the simple, usual and customary means, to discover that the Village of Rosemont was the owner and operator of the Rosemont Horizon. Plaintiffs contention that the defendant, the Village of Rosemont, a municipal corporation organized under the laws of the State, was bound by the provisions of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.), is fallacious, because section 4 thereof provides, “This Act shall in no way affect or apply to any corporation duly organized under the laws of this State ***.” (Ill. Rev. Stat. 1985, ch. 96, par. 7.) Plaintiff’s attempts to rectify his failure to have, through normal channels, ascertained that the Village of Rosemont was the owner and operator of the Rosemont Horizon and to have timely notified the Village of Rosemont of his injuries and of his intent to file and to have properly filed his suit therefor, although somewhat ingenious, must fail.

      Pursuant to Public Act 84 — 1431, article 1, sections 2 and 3, the statute of limitations in section 8 — 101 was reduced from two years to one year and the notice requirement of section 8 — 102 was repealed. These amendments were effective November 25, 1986, but apply only to causes of action accruing after the effective date of the amendments and therefore do not apply to the present case.


author: JUSTICE QUINLAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURT HERMANN, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—1437
    Opinion filed December 5, 1988.
    Rehearing denied January 23, 1989.

      Stephen M. Komie, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Douglas J. Bank, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendant, Curt Hermann, was charged by information with two counts of delivery of 30 grams or more of a controlled substance containing cocaine, in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. SOVs, par. 1401(a)(2)). The defendant waived his right to a jury trial and was convicted on both counts, following a bench trial in the circuit court of Cook County. The trial judge sentenced the defendant to two concurrent terms of seven years and fined him $4,500.

Glenn Schneider testified that in July 1983, when he was an undercover agent with the Illinois Department of Law Enforcement, he had several telephone conversations with the defendant concerning the sale of cocaine. In one of the conversations, the defendant told Schneider that he had a “ton” of cocaine, and the parties then agreed that Schneider would pay $2,725 for an ounce and a quarter of cocaine.

Schneider met the defendant on July 22. The defendant gave him two white envelopes, each containing a clear plastic bag filled with white powder. Schneider gave the defendant $2,720 in prerecorded bills. Schneider testified that he put the envelopes in either his shirt or his sock.

Following this transaction, Schneider met with Illinois Department of Law Enforcement agents and Hoffman Estate police officers at a prearranged location. Schneider initialed and dated the envelopes that the defendant had given him, put each envelope in a clear plastic bag, and then put the bags in an evidence envelope, which he also initialed, dated and sealed. He then locked the evidence envelope in his briefcase, where it remained until July 25, when he delivered it to Debra Jurasic, a crime lab analyst. On cross-examination, Schneider testified that he did not have continuous possession of the briefcase from July 22 to July 25.

Following the July 22 transaction, Schneider and the defendant had another telephone conversation and agreed that the defendant would sell Schneider two ounces of cocaine for $2,050 an ounce. Schneider met the defendant on August 3. Schneider gave the defendant $4,100 in prerecorded bills, and in exchange he received two more white envelopes containing plastic bags full of white powder. The defendant told Schneider that he would sell him more cocaine, but no more than two ounces at a time and only at half hour intervals. When this transaction was completed, the defendant was arrested.

Following the arrest of the defendant, Schneider went to the Hoffman Estates police department and once again signed and initialed the envelopes that the defendant had given him. Each envelope was then placed into a clear plastic bag and the bags were then put into an evidence envelope. Schneider sealed and initialed the envelope and delivered it to Jurasic on August 4. Schneider could not recall where the evidence envelope was kept overnight.

Debra Jurasic testified that she had a B.A. in chemistry and that she had trained for five months with the Bureau of Forensic Sciences Laboratory, learning to identify controlled substances. She had been employed by the Illinois Department of State Police and the Bureau of Forensic Scientists Laboratory for the past 8^2 years. She had analyzed substances for the presence of cocaine on approximately 6,000 to 7,000 occasions and had never made any mistakes. The trial court received Jurasic as an expert witness over the defendant’s objections.

Jurasic stated that she received the first evidence envelope, which was sealed, on July 25. When she opened the envelope, she found two sealed clear plastic bags, each containing a white envelope, which in turn contained a clear plastic bag full of white powder. The two bags were described as exhibits 1A and IB. Jurasic weighed the powder and performed five different tests on the samples of the powder. Exhibit 1A weighed 28 grams and tested positively for the presence of cocaine. She determined that exhibit 1A was 48% pure cocaine. Exhibit IB weighed 6.8 grams and was found to contain cocaine, with a 52% purity.

On August 4, Jurasic received the second evidence envelope from Schneider. All seals on this envelope were intact. The two bags contained in this evidence envelope were also weighed and tested for the presence of cocaine. Sample 1A weighed 27.7 grams and indicated that cocaine was present. Sample IB also tested positively for the presence of cocaine and weighed 27.6 grams. Jurasic did not test either sample for purity. Jurasic testified that she did not calibrate the scale which she used to weigh the samples, but she did subtract the weight of the container used to hold the samples. In addition, Jurasic stated that no one else checked or verified her results.

Dr. James O’Donnell, an assistant professor of pharmacology and assistant director of pharmacy, testified for the defense as an expert witness. He stated that the generally accepted scientific practice, when testing for controlled substances, is to run the test twice. In addition, the scale used to weigh a sample should be calibrated before and after each weighing, and the results of any test should be verified by another person.

On cross-examination, Dr. O’Donnell admitted that he had only performed a test for the presence of cocaine on one occasion and that he did not perform any tests on the powder involved in this case, although he was not prevented from doing so. Dr. O’Donnell stated that, in his opinion, the samples did not contain more than 30 grams of pure cocaine, but he agreed that the weight of each sample was over 30 grams. Dr. O’Donnell also stated that he would not conclude, based on the tests performed by Jurasic, that the samples contained cocaine.

The defense then called Dr. Vincent Papa as an expert witness. Dr. Papa was a research associate for the University of Illinois department of pathology. Dr. Papa did not test the samples involved in this case, but testified that he would not conclude that the samples definitely contained cocaine, based on the tests that Jurasic performed. He also concluded that each sample weighed over 30 grams, but did not contain more than 30 grams of pure cocaine. Dr. Papa also testified that he had reviewed Jurasic’s work on one occasion, in the circuit court case of People v. Gates. In the Gates case, Dr. Papa tested a substance that allegedly contained cocaine and concluded that there was no cocaine present. Jurasic had also tested a sample of the substance in Gates and determined that there was a trace amount of cocaine present.

The trial court found the defendant guilty on both counts of delivery of a controlled substance. A hearing was held in aggravation and mitigation, following which the defendant was sentenced to two concurrent terms of seven years’ imprisonment in the Illinois Department of Corrections and was fined $4,500. Defendant then filed this appeal.

The first issue that the defendant raises on appeal is that the State failed to establish a sufficient chain of custody, and that, therefore, the trial court erroneously admitted the cocaine into evidence. The defendant argues that there was a fatal break in the chain of custody from the time when he sold the alleged cocaine to Schneider until Schneider delivered it to Jurasic. According to the defendant, this fatal break occurred because Schneider was not in continuous possession of his briefcase from July 22 to July 25. There was also a fatal break in the chain of custody of the August 3 alleged sample of cocaine, because Schneider could not recall where he kept the sample between the time he purchased it from the defendant until he delivered it to Jurasic on August 4.

As a result of this alleged break in the chain of custody, the defendant argues that the alleged cocaine absorbed moisture, thus increasing its weight to over 30 grams. The State, on the other hand, argues that the chain of custody was established beyond a reasonable doubt because there was a hand-to-hand delivery of the evidence. Moreover, the evidence was placed in envelopes that were initialed, dated and sealed, and were received by Jurasic in this sealed condition.

A reviewing court will not disturb the trial court’s admission of evidence, absent an abuse of discretion and a showing of prejudice to the defendant. (People v. Holman (1987), 157 Ill. App. 3d 764, 775, 510 N.E.2d 1139, 1146.) The State must lay an adequate foundation in order to admit real evidence (People v. Slaughter (1986), 149 Ill. App. 3d 183, 186, 500 N.E.2d 662, 664), and in order to provide an adequate foundation, the State may establish a chain of custody that shows to a reasonable probability that the evidence has not been altered or tampered with since it was seized. (Slaughter, 149 Ill. App. 3d at 186, 500 N.E.2d at 664.) However, all possibility of tampering or alteration need not be excluded (Holman, 157 Ill. App. 3d at 775, 510 N.E.2d at 1146; People v. Ryan (1984), 129 Ill. App. 3d 915, 919, 473 N.E.2d 461, 464), and, thus, the State need only show that it took reasonably protective measures since the substance was seized (Ryan, 129 Ill. App. 3d at 919, 473 N.E.2d at 464) and that the substance has not been changed in any material respect (Holman, 157 Ill. App. 3d at 775, 510 N.E.2d at 1146).

We agree with the State that a sufficient chain of custody was established in this case. There was no suggestion that the seals on the evidence envelopes had been tampered with before Jurasic received them. Schneider testified that the July 22 sample remained in his locked briefcase until July 25. The August 3 sample also remained under his control, even though he could not remember its exact location. Schneider personally handed the cocaine to Jurasic on both occasions. Jurasic stated that the seals were intact on both evidence envelopes.

The facts in this case are similar to those in People v. Borawski (1978), 61 Ill. App. 3d 774, 378 N.E.2d 255, where an undercover agent testified that he kept a plastic bag full of a controlled substance in his possession for six days, but did not state where or how he kept the evidence. The agent had initialed, dated and sealed the bag, and it was still sealed when it was delivered to an evidence officer. (Borawski, 61 Ill. App. 3d at 780, 378 N.E.2d at 260.) This court held that the evidence had been properly admitted and that a presumption of tampering did not arise merely because the agent did not testify concerning where the bag was for six days.

Likewise, in this case, the facts are sufficient to create a reasonable probability that the evidence had not been altered or contaminated in any way, even though Schneider could not recall exactly where the evidence was at all times. The defendant’s claim that moisture entered the sample is sheer speculation, and speculation is insufficient to support a claim of tampering. (People v. Martine (1984), 121 Ill. App. 3d 793, 800, 460 N.E.2d 456, 461.) The evidence, therefore, was properly admitted.

The defendant’s second issue on appeal is that the trial court improperly restricted his redirect examination of Dr. Papa and improperly restricted his impeachment of Jurasic. Concerning the redirect examination, defendant argues that he was denied the opportunity to question Dr. Papa concerning whether Jurasic’s weighing techniques were accurate, whether the weight of the samples could be conclusively determined, and whether moisture would affect the weight of the samples. The restriction, according to the defendant, prevented him from presenting evidence tending to negate his guilt.

A defendant has the right to use any reasonable opportunity to present evidence tending to negate his guilt, but the trial court retains discretion to resolve questions of the nature and character of the examination and the manner of the presentation of evidence. (See People v. Columbo (1983), 118 Ill. App. 3d 882, 966, 455 N.E.2d 733, 794; People v. Calloway (1979), 79 Ill. App. 3d 668, 673, 398 N.E.2d 917, 920.) Furthermore, the trial court may exclude cumulative or repetitive testimony, and the extent to which cumulative testimony is received is in the trial court’s discretion. (People v. Partee (1987), 157 Ill. App. 3d 231, 268, 511 N.E.2d 1165, 1189-90.) The scope of redirect examination is also within the trial court’s discretion and the court’s ruling should be reversed only upon a showing of clear abuse of discretion, resulting in manifest prejudice to the defendant. People v. Washington (1984), 127 Ill. App. 3d 365, 382, 468 N.E.2d 1285, 1297.

We find no abuse of discretion on the part of the trial court in restricting the redirect examination of Dr. Papa. The defendant had already asked Dr. Papa questions on direct concerning Jurasic’s weighing techniques and concerning Dr. Papa’s opinion as to the weight of the samples. The questions on redirect, thus, were merely cumulative of the testimony already presented.

Similarly, questions regarding whether moisture would affect cocaine were also properly restricted. This theory was merely speculative on the defendant’s part and the line of questioning was beyond the scope of cross-examination. Furthermore, there was no basis in the facts presented at trial to provide a foundation for the question. The elements of a hypothetical question must have an evidentiary basis in the record and should contain all material facts to form the basis of any opinion requested. (People v. Chua (1987), 156 Ill. App. 3d 187, 192, 509 N.E.2d 533, 536.) The defendant here has failed to show that the trial judge abused his discretion by not allowing the defendant’s hypothetical question concerning the effect of moisture on cocaine.

The defendant also argues that his impeachment of Jurasic was improperly restricted because he was not permitted to introduce the verdict from the Gates case into evidence. He claims that this restriction prejudiced his opportunity to present evidence in his defense. The State contends that the verdict in Gates was not relevant to the present case.

Generally, a party seeking to impeach a witness may use any matter which is properly impeaching. (Columbo, 118 Ill. App. 3d at 966, 455 N.E.2d at 793.) If, however, the matter is collateral, then such evidence cannot be used to impeach a witness because it will only tend to confuse the jury and waste time. (Columbo, 118 Ill. App. 3d at 966, 455 N.E.2d at 793-94.) In this case, the defendant had already impeached Jurasic by introducing evidence that she and Dr. Papa reached different conclusions regarding whether the substance in Gates contained cocaine. We agree with the State that whether the Gates defendant was convicted or acquitted was clearly a collateral matter, and the trial judge properly sustained the State’s objection to the question as irrelevant.

The third issue that the defendant raises on appeal is that the State did not prove him guilty beyond a reasonable doubt. However, a reviewing court will only set aside a conviction upon a showing that the evidence is so unsatisfactory that it raises a reasonable doubt as to the defendant’s guilt. (People v. Johnson (1986), 114 Ill. 2d 170, 190, 499 N.E.2d 1355, 1363.) The trier of fact determines the credibility of witnesses and the weight to be accorded disputed evidence, and its finding will not be reversed unless the verdict is against the manifest weight of the evidence. People v. Kaludis (1986), 146 Ill. App. 3d 888, 893, 497 N.E.2d 360, 363-64.

The defendant contends that there is a reasonable doubt as to his guilt because the State did not properly prove a chain of custody. Defendant also asserts that there is a reasonable doubt as to his guilt because Jurasic only had a B.A. in chemistry and because she did not follow scientifically approved procedures in testing and weighing the cocaine.

We find that the evidence in this case was sufficient to prove the defendant guilty, beyond a reasonable doubt, of delivery of more than thirty grams of a controlled substance. First, we disagree with the defendant that the State failed to prove a sufficient chain of custody. Second, Jurasic was admitted as an expert witness through her experience, thus, whether she had a B.A. degree or no degree is irrelevant. The fact that Jurasic testified that her procedures were scientifically correct, and the defendant’s experts disagreed with her procedures, goes only to the weight of her testimony. Hence, based on an examination of the record here, the trial court’s finding that Jurasic was a credible witness is not against the manifest weight of the evidence. We further note that Jurasic was the only expert to actually test the cocaine.

The defendant’s fourth and final issue on appeal is that the statute under which he was convicted, section 401(a)(2) of the Illinois Controlled Substances Act, is unconstitutional because it imposes a mandatory minimum six-year prison term for anyone convicted of delivering 30 grams or more of a substance containing cocaine, whether or not they have a prior criminal record. (Ill. Rev. Stat. 1981, ch. 56V2, par. 1401(a)(2).) When a statute is challenged on equal protection grounds, its classification is presumed valid and the party challenging the statute must show its invalidity. (People v. Mayberry (1976), 63 Ill. 2d 1, 9, 345 N.E.2d 97, 101.) The classification will be upheld if there is any reasonable basis for the classification. (Mayberry, 63 Ill. 2d at 9, 345 N.E.2d at 101.) When there is a due process challenge to a statute, the statute must be reasonably designed to remedy the evil that the legislature has determined to be a threat to the public. People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032.

The defendant claims that the statute is unconstitutional because it applies a heavier penalty to him for delivering more than 30 grams of diluted cocaine, despite the fact that this was his first offense. The defendant states that he is automatically subject to a six-year prison term, while a convicted criminal who delivers only 29 grams of pure cocaine may receive probation. The State argues that the constitutionality of this statute was upheld by the Illinois Supreme Court in People v. Mayberry, and, therefore, defendant’s argument is moot.

In Mayberry, the court upheld a classification scheme providing for punishment based on the amount of substance containing cannabis, rather than on the amount of pure cannabis. (Mayberry, 63 Ill. 2d at 4, 345 N.E.2d at 99.) The court held that this statute was reasonable because the legislature “may have believed that any given amount of drug can be distributed to a greater number of people and thus have a greater potential to be harmful if it is mixed with another substance.” (Mayberry, 63 Ill. 2d at 9, 345 N.E.2d at 101.) Since the Mayberry decision, the second, third, fourth, and fifth Illinois appellate districts have upheld similar classification schemes involving other drug offenses. See People v. Castro (1987), 151 Ill. App. 3d 664, 503 N.E.2d 376; People v. Bradi (1982), 107 Ill. App. 3d 594, 437 N.E.2d 1285; People v. Yettke (1981), 95 Ill. App. 3d 365, 420 N.E.2d 194; People v. Rhoades (1979), 74 Ill. App. 3d 247, 392 N.E.2d 923; People v. Behnke (1976), 41 Ill. App. 3d 276, 353 N.E.2d 684.

We agree that the graduated penalty scheme, based on the amount of substance containing a controlled substance, is constitutional and that Mayberry is dispositive of the issue. There are several rational reasons that the legislature could have concluded that a diluted drug is as dangerous as a pure drug. As stated in People v. Behnke (1976), 41 Ill. App. 3d 276, 279-80, 353 N.E.2d 684, 687, reasons for a drug’s classification, other than its purity, may include the need to punish drug traffickers more severely than petty distributors; the desire to limit the general population’s access to controlled substances; and the desire to deter drug abuse. The defendant’s argument that this was his first offense is irrelevant under the statutory scheme here. The statute states that “[t]he treatment of one who is convicted of delivery of a certain amount of a substance containing a controlled substance is not *** based upon an irrebuttable presumption that the person convicted is a trafficker, but upon the legislature’s reasonable perception of the threat to society in delivery of a large quantity of that substance by any person.” (Emphasis added.) Behnke, 41 Ill. App. 3d at 280, 353 N.E.2d at 687.

The statute, therefore, is not unconstitutional even though its penalties are based on the amount of substance containing a controlled substance. The need to eliminate the threat to society from drugs, whether sold by a major trafficker or a small dealer, as recognized by the statute, provides a reasonable basis for the statute’s classification.

Accordingly, for the reasons set forth above, the judgment of the circuit court of Cook County is affirmed. Additionally, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, and People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that the defendant be assessed $75 as costs for the State’s defense of this appeal and incorporate it as part of our judgment.

Affirmed.

MANNING and O’CONNOR, JJ., concur.


author: JUSTICE BUCKLEY

text:
    LIN HSI HSU et al., Appellants, v. THE HUMAN RIGHTS COMMISSION et al., Appellees.
    First District (1st Division)
    No. 1—87—2592
    Opinion filed January 9, 1989.

      Erwin Cohn & Associates, of Chicago (Charles A. Cohn and Erwin Cohn, of counsel), for petitioners.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Respicio F. Vazquez, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Human Rights Commission.
    Kenneth N. Flaxman and Elizabeth Dale, both of Chicago, for other respondents.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from a housing discrimination complaint filed in the Illinois Department of Human Rights by Eva and Michael Horton against Lin Hsi Hsu and Han Cheng Hsu. On July 3, 1986, the Human Rights Commission (Commission) entered an order finding that the Hsus’ denial of rental housing to the Hortons was motivated by racial discrimination, thereby reversing a prior order of an administrative law judge. Damages and attorney fees were subsequently assessed against the Hsus, and they now appeal. We affirm.

The following testimony was presented on September 4, 1984, before the administrative law judge of the Commission. On March 21, 1983, complainants Eva and Michael Horton, a black couple, responded to an ad in the Chicago Tribune offering for rent a single-family, five-bedroom dwelling at 7879 Northway Drive, Hanover Park, Illinois. After telephoning the owners of the house, Mr. and Mrs. Hsu, who are Chinese, the Hortons went to see it. They claim that when Mrs. Larkin, the white tenant, opened the door, she “hesitated” or “paused” for a few seconds with her mouth agape. She then left the couple waiting in the front hallway for about five minutes before showing the house.

Later that day, Mr. Horton phoned Mr. Hsu, expressed his interest in the house, and asked to fill out an application. When asked if the house was too large for him, Mr. Horton replied “no” because he currently owned a large home. He testified that Mr. Hsu told him he would call him back that evening, but when Hsu failed to do so, Horton called him a few days later and again expressed his desire to fill out an application for the house. After discussing the rent and Horton’s income, Hsu agreed to meet him on Saturday, March 26, at 6 p.m. at the Hortons’ home in Carol Stream.

On that Saturday, according to Horton, Hsu called him at 8 p.m., told him he got lost, and that, in any event, he had made a “judgment” to rent the house to another family. When Horton found out that the advertisement was still in the paper on Monday, March 28, he felt that he had been discriminated against, as did his wife after she learned on Saturday evening that the house had been rented. On cross-examination, Horton admitted that Hsu would have no way of knowing he was black unless told by his tenant.

Mr. Hsu denied that his decision not to rent to the Hortons was based on their race. He stated that during his first conversation with Mr. Horton, he was told that the couple only had a grandchild living with them. Hsu testified that he preferred to rent the house to a large family as they were less likely to be dissatisfied with the high utility bills and the upkeep of a large home. He explained that he did not make definite arrangements with the Hortons at that time because after discussing the rent, he thought the Hortons would want to look at the house again. When Mr. Horton called a second time, Hsu told him it was not his practice to take applications as he only owned one rental property, but he did agree to meet the Hortons on Saturday. He had previously made appointments to meet the Muhatims, an Indonesian family having four adults and three children, at 5 p.m., and the Zahitas, a white family of three, at 7 p.m. on that same Saturday.

While meeting with the Muhatims at a hotel in downtown Chicago, the Hsus orally agreed to rent to them for $600 per month rather than the $650 advertised rate. Mr. Hsu testified that he left the Muhatims at 6 p.m., and arrived at a gas station near Carol Stream at 6:30 or 7 p.m. at which time he called the Hortons because he was lost. When Hsu received a busy signal, he proceeded to the Zahita household, where he stayed for 30 minutes. He did not inform the Zahitas until the next day that the dwelling had been rented.

On Monday, March 28, the Hsus received a $100 deposit from Mr. Muhatim. By a document of the same date, the Hsus entered into a lease agreement with the Muhatims to commence April 1, 1983, although the Muhatims requested that the term of the lease not start until May 1,1983.

After hearing the above testimony, the administrative law judge (hereinafter ALJ) issued a recommended order and decision in favor of the Hsus (hereinafter respondents). Despite his finding that certain actions of respondents “cr[ied] out for an explanation,” the ALJ refused to impute knowledge of the Hortons’ (hereinafter complainants’) race to respondents. The judge stated:

“In opposition to the flimsy circumstantial evidence that the tenant advised Respondent of Complainants’ race, Respondent Lin Hsi Hsu testified, credibly, that he did not know of Complainants’ race at any relevant time. Thus, I must conclude that Complainant has not proven by a preponderance of the evidence that the tenant communicated to Respondent that Complainants were black.”

The ALJ noted, however, that but for this lack of proof, it “would be hardpressed to not find that Respondents violated the Human Rights Act.”

The Commission ultimately reversed this order and remanded the cause for a determination of damages and attorney fees, reasoning that the ALJ “made a mistake of law” in requiring direct proof of respondents’ knowledge of complainants’ race. Rather, the Commission ruled that given the fact that the tenant had ample opportunity to inform respondents of complainants’ race, the ALJ should have inferred a racial motive where respondents treated complainants differently than other similarly situated, nonblack applicants. The Commission, citing an evidence hornbook, wrote, “Where circumstantial evidence exists which makes it likely that something has taken place, a fact finder in a civil case may infer the event based upon the circumstantial evidence.” The Commission’s decision concludes:

“Thus, the Administrative Law Judge should have inferred knowledge of the Complainants’ race based upon the subse- • quent actions of the Respondents. Because the Administrative Law Judge did not make this inference, the Recommended Order and Decision cannot be accepted. Instead, the Commission finds that the denial of rental housing by the Respondents in this case was motivated by the Complainants’ race.”

Upon remand, the ALJ recommended an award of $2,000 to complainants for humiliation and embarrassment, and $1,907.85 as their attorney fees. The Commission modified the recommended order by increasing the attorney fees to $2,585.60, the amount initially sought by complainants plus costs subsequent thereto.

The thrust of respondents’ appeal is that the Commission erred in substituting its judgment for that of the ALJ, thereby violating its own standard of review embodied in section 8 — 107(E)(2) of the Illinois Human Rights Act (Human Rights Act), which directs the Commission to “adopt the hearing officer’s findings of fact if they are not contrary to the manifest weight of the evidence” (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)(2)), and section 5300.1120 of the Illinois Administrative Code (56 Ill. Adm. Code 5300.1120 (1986)), which requires the same. Complainants and the Commission, in turn, citing Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 496 N.E.2d 1138, contend that the Commission’s findings were “prima facie true and correct” and urge this court to consider only whether the Commission’s decision is against the manifest weight of the evidence. We believe that complainants and the Commission properly delineate our scope of review in this matter.

Final administrative decisions of agencies like the Commission are subject to judicial review pursuant to section 8 — Illof the Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111). On administrative review, this court should not reweigh the evidence, assess the credibility of witnesses, or review the ALJ’s findings, but rather must ascertain whether the final decision of the administrative agency, such as the Commission here, is against the manifest weight of the evidence. (Milan v. Human Rights Comm’n (1988), 169 Ill. App. 3d 979, 523 N.E.2d 1155; Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 496 N.E.2d 1138.) For this court to overturn the Commission’s decision as contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident or the decision palpably erroneous. (Smith v. Chicago Board of Education (1988), 176 Ill. App. 3d 109.) If the record contains any evidence to support the agency’s decision, that decision must be upheld. Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 510 N.E.2d 1226.

With this limited standard of review in mind, we must now determine whether the Commission’s decision was indeed against the manifest weight of the evidence warranting reversal. Section 3— 102(A) of the Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 3— 102(A)) makes it unlawful for an owner of rental property to refuse to engage in a real estate transaction with another person on the basis of, among other things, race. As the Seventh Circuit has held with respect to section 3604 of the Fair Housing Act, a provision similar in language and intent to the State statute at issue here, the prerequisites of a prima facie case of housing discrimination are as follows: (1) complainant belong to a minority; (2) respondent be aware of it; (3) complainant be ready and able to accept respondent’s offer to rent; and (4) respondent refuse to deal with complainant. Once these elements are established, the burden then shifts to the respondent to show a legitimate reason for refusing to deal with the complainant. (Turner v. Human Rights Comm’n (1988), 177 Ill. App. 3d 476, 488, citing Hamilton v. Svatik (7th Cir. 1985), 779 F.2d 383.) After articulation of such reason, complainant must then show the reason is a mere pretext, either by direct evidence that a discriminatory reason more likely motivated respondent or by indirect evidence that the respondent’s explanation is unworthy of belief. Turner v. Human Rights Comm’n (1988), 177 Ill. App. 3d 476, 488, citing Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.

With respect to complainants’ prima facie case, the sole element in dispute is respondents’ knowledge of complainants’ race. As the Commission pointed out, citing Urisote v. Madison County Housing Authority (1977), 4 Ill. Fair Employment Prac. Rep. 46, such knowledge can be inferred from the disparate treatment complainants were subjected to in relation to the other similarly situated, nonblack applicants. Specifically, the Commission refers to respondents’ failure to keep their appointment with complainants while visiting both non-black applicants, and their efforts to discourage complainants by failing to return their call and by questioning their interest in such a large house. These actions amply support the Commission’s inference that respondents’ current tenant, who showed surprise at complainants’ appearance and left them in the front hallway for several minutes, informed respondents of complainants’ race.

Respondents argue that they presented a nondiscriminatory reason for not renting to complainants: they preferred to rent to a large family that would be less dissatisfied with the high bills and upkeep of a five-bedroom house. They contend that they were unable to meet complainants that Saturday due to circumstances beyond their control, and in any event, the house had already been rented to the Mu-hatims. Again, in our view, there was sufficient evidence before the Commission from which it could conclude that this explanation was a mere pretext, particularly where respondents rented to people who, unlike complainants, requested modifications in the lease, including the rental price and its term. Furthermore, if the house had in fact been rented on that Saturday to the Muhatims, it would make no sense for respondents to not enter into a firm agreement with them at that time, still meet with the Zahitas, a nonblack family of three, for 30 minutes that evening without mentioning the earlier agreement, and not pull their ad from the newspaper subsequent thereto.

Pursuant to section 8 — 107(E)(1) of the Human Rights Act, the Commission is free to modify or even reject the recommended order and decision of the hearing officer if it is against the manifest weight of the evidence. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)(1).) We, as a reviewing court, however, do not pass upon the propriety of the Commission’s findings in this regard. “Rather, we pass upon the actual determination of the Commission just as if the Commission were the original fact finder.” Carver Lumber Co. v. Human Rights Comm’n (1987), 162 Ill. App. 3d 419, 424, 515 N.E.2d 417, 421.

Thus, given our determination that the Commission’s order is not against the manifest weight of the evidence, we affirm its judgment in favor of complainants.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.

      Respondents attempt to distinguish Urisote from the instant case on the ground that it involves employment discrimination as opposed to housing discrimination. Yet, as this court has most recently recognized in Turner v. Human Rights Comm’n (1988), 177 Ill. App. 3d 476, the principles we apply in housing discrimination cases in fact originated in the context of employment discrimination.