author: JUSTICE MURRAY

text:
    KRONON MOTOR SALES, INC., Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    First District (5th Division)
    No. 1—92—1032
    Opinion filed October 30, 1992.
    Richard W. Cosby, of Cosby & Bell, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE MURRAY

delivered the opinion of the court:

This appeal is brought by Kronon Motor Sales, Inc. (Kronon), on a petition for direct review of an administrative decision of the Illinois Pollution Control Board (the Board). Jurisdiction is vested in this court by virtue of Supreme Court Rule 335 (134 Ill. 2d R. 335) and section 41 of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1991, ch. HV-k, par. 1041). The Board affirmed the decision of the Illinois Environmental Protection Agency (the Agency), which disallowed reimbursement for remediation costs Kronon incurred prior to the date it notified the Illinois Emergency Services and Disaster Agency (ESDA) that a release of a petroleum product was discovered during the removal of an underground storage tank (UST). The facts, which are not in dispute, are as follows.

Kronon had a 1,000-gallon steel gasoline UST on its property, which is located on West Irving Park Road in Chicago, Illinois. The tank was installed on the property in 1976 and registered with the State Fire Marshall on April 4, 1986. On April 25, 1990, Kronon was issued a permit by the City of Chicago for the removal of the tank, and on May 8, 1990, Peter J. Hartmann Company (Hartmann), a contractor hired by Kronon, removed the tank from Kronon’s property. The stated purpose for the tank removal was “upgrade to current regulations.”

During the tank removal, “contamination” was observed and soil samples were collected for testing and analysis. However, ESDA was not immediately notified of the situation. In fact, ESDA was not notified of the incident of release until July 6, 1990, after Kronon apparently received the results of the soil sample testing which confirmed that petroleum, a regulated substance, had escaped from the tank and was present in the ground soil.

Kronon contends that it was unsure whether the “contamination” observed was a petroleum release until the analysis report was received. Nevertheless, Kronon apparently operated under that assumption since Professional Tank Services, Ltd. (Professional), was subcontracted by Hartmann to provide professional consulting services regarding remediation of the site and on May 11, 1990, an Illinois Generator ID Number request was filed with the Agency to obtain manifests for the disposal of land waste at CID II Landfill (CID II) in Calumet City.

On June 14, 1990, a “preliminary analysis” of the soil was reported to Kronon, the purpose of which was to determine if the sample was hazardous as defined by the regulations relating to such matters. (40 C.F.R. 261, Appendix II, Agency Record B, p.31.) The analysis, which included a free liquid test, an open cup flash point test and an E.P. toxicity test, was negative. This means that the soil was not hazardous, that there was no trace of lead in the sample, no free liquid and the flash point was greater than 200° Fahrenheit.

On June 18, 1990, Kronon received clearance to dispose of “soil contaminated with gasoline” at CID II. Excavation of the UST site was then begun under the supervision of Hartmann and Professional. After eight contaminated soil loads were removed from the site and taken to CID II, a second set of soil samples was collected on July 2, 1990. The results of the second set of soil samples was obtained from Environmental Monitoring and Technologies, Inc., on July 5, 1990. This report indicated that benzene and other contaminants were present in the soil. On July 6, 1990, Kronon notified the ESDA that a petroleum release had occurred at the UST site.

Another eight loads of soil were then excavated and disposed of at CID II, and a third set of samples was taken on July 11, 1990. On July 25, 1990, a report of the analysis done on the third set of samples showed that contaminants were still present. After an additional 20 loads of contaminated soil were disposed of at CID II, a report of the analysis of soil samples collected on July 24, 1990, revealed that the remaining site soils were below “EPA Regulated Limits.”

On July 27, 1990, Kronon completed the Agency “Application for Reimbursement from Underground Storage Tank Fund for Corrective Action Costs,” and on August 3, 1990, Kronon, through Professional, submitted a corrective action response and report to the Agency. On August 9, 1990, the Agency sent Kronon a letter stating that its preliminary investigation of Kronon’s application for reimbursement indicated that Kronon was eligible to receive reimbursement from the State Underground Storage Tank Fund (SUSTF) for “corrective action costs, accrued on or after July 28, 1989, in excess of $10,000” (the standard deductible). The letter also noted that the corrective action costs would be reviewed separately for a determination of their allowability.

On June 19, 1991, the Agency notified Kronon that a review of the corrective action report filed August 3, 1990, indicated that no further remediation appeared necessary. However, in a letter dated July 10, 1991, nearly 11 months after the initial determination of eligibility, the Agency informed Kronon that $12,317.54 in expenses submitted by Kronon were being disallowed pursuant to section 22.18b(d)(4)(D) of the Act (Ill. Rev. Stat. 1989, ch. llV-lz, par. 1022.18b(d)(4)(D)) because they were “charges incurred prior to the notification made to the Illinois Emergency Services and Disaster Agency.” Other miscellaneous expenses were also disallowed for other reasons. Thus, Kronon’s request for reimbursement in the amount of $48,990 (minus the standard deductible of $10,000) was granted in the amount of $26,234.51.

On August 14, 1991, Kronon filed a petition to review the Agency’s decision with the Board, as set forth in the Act. (Ill. Rev. Stat. 1989, ch. Ill, pars. 1022.18b(g), 1040.) The issue was presented on cross-motions for summary judgment. On January 9, 1992, the Board, by a six-to-two decision, affirmed the Agency’s decision to deny the corrective action costs prior to notification of the ESDA. On February 27, 1992, the Board denied Kronon’s petition for rehearing and this timely appeal followed.

The crux of the dispute is not whether Kronon is eligible for reimbursement for corrective action taken, the Act clearly indicates that Kronon is eligible and the Agency concedes the point. However, the dispute revolves around the notice requirement as set forth in the Illinois Administrative Code and the Act. Therefore, it is necessary to review the applicable provisions of the Code and Act.

Section 22.18b(d)(4)(D) of the Act states:

“(4) Requests for partial or final payment for claims under this Section shall be sent to the Agency and shall satisfy all of the following:
* * *
(D) The owner or operator notified the State of the release of petroleum in accordance with applicable requirements.” (Ill. Rev. Stat. 1989, ch. Ill. par. 1022.18b(d)(4)(D).)

In subpart E of title 35 of the Illinois Administrative Code, section 731.150, which was adopted effective June 12, 1989, and is entitled “Reporting of Suspected Releases,” states:

“Owners and operators of UST systems shall report to the ESDA within 24 hours and follow the procedures in Section 731.152 for any of the following conditions:
(a) The discovery by owners and operators or others of released regulated substances at the UST site or in the surrounding area (such as the presence of free product or vapors in soils, basements, sewer and utility lines or nearby surface water).” 35 Ill. Adm. Code §731.150 (1992).

In subpart F of title 35, the Code states at sections 731.160 and 731.161 that “[ujpon confirmation of a release in accordance with Section 731.152 or after a release from the UST system is identified in any other manner” owners and operators must report the release to the ESDA within 24 hours. 35 Ill. Adm. Code §§731.160, 731.161 (1992).

Kronon maintains that, based upon the above-cited provisions of the Code and the Act, it was not required to contact the ESDA in May 1990 when the UST was removed from the site and the contamination was observed. Kronon contends, and the June 14, 1990, report seems to confirm, that there was no free product or vapor present in the soil. Therefore, Kronon argues that it could only speculate that the contamination observed was a regulated substance. Kronon avers that it was only obligated to notify ESDA when it received confirmation that a release had occurred. Since confirmation did not come until Kronon received an analysis report on July 5, 1990, notification of the ESDA on July 6, 1990, conformed with the notice requirements under the regulations and full reimbursement of all corrective action costs should be granted.

In opposition, the Agency contends, and the Board agrees, that Kronon was obligated to report to the ESDA within 24 hours of May 8, 1990, when contamination was first observed. The Agency and Board maintain that because the UST contained gasoline, any observed contamination would give rise to a suspicion that petroleum (a regulated substance) had been released. Therefore, because there was a suspected release of a regulated substance, Kronon was obligated to notify the ESDA. Furthermore, timely compliance with the notice requirement was a condition precedent to full reimbursement. Consequently, corrective action costs incurred prior to ESDA notification were properly disallowed.

This is a case of first impression. The only case cited to by any party is an administrative decision, North Suburban Development Corp. v. Illinois Environmental Protection Agency (December 6, 1991), PCB 91 — 109, in which the Board, under nearly identical circumstances as in the present case, disallowed corrective action costs incurred prior to ESDA notification. Two Board members dissented in that decision also.

We note, too, that the situation encountered here is not likely to recur because the legislature amended the Act, effective September 6, 1991, to specifically state that corrective action costs incurred before providing ESDA notification shall not be eligible for payment. See Ill. Rev. Stat. 1991, ch. 111, par. 1022.18b(d)(4)(D).

Therefore, the issue is really whether Kronon, which removed its UST in accordance with all other applicable regulations and statutes and was otherwise eligible to obtain reimbursement from the SUSTF, should be denied full reimbursement for the corrective action taken because it failed to comply with the notice requirement as interpreted by the Agency. Although we certainly sympathize with Kronon and, in addition, find the arguments presented before this court by Kronon’s attorney to have been highly persuasive and well delivered, we must affirm the Agency’s interpretation of the notice requirement and uphold its decision to disallow full reimbursement.

Courts must give considerable deference to interpretations of statutes and ordinances made by the agency charged with their administration. (Spitz v. Goldome Realty Credit Corp. (1992), 151 Ill. 2d 71.) Of course, we are not bound by the interpretation if it is unreasonable or erroneous. (Press v. Code Enforcement Board of Appeals (1992), 149 Ill. 2d 281, 285, 595 N.E.2d 1068.) However, in this case we do not find the Agency’s interpretation of section 731.150 to be unreasonable or erroneous. Although the statute, as interpreted, seems to require an owner or operator of a UST to notify the ESDA upon both the suspected release of a regulated substance and the confirmation that a release has occurred, this is not an unreasonable demand. Nor does it impose a significant hardship upon the owner or operator of a UST to comply with such a notice requirement.

The only hardship is that in this case, Kronon’s reimbursement is tied to the strict adherence to the notification requirement. As stated before, although this may seem a harsh result in this case, we cannot overturn the Agency’s decision simply because we might have reached a different conclusion.

Because we must accord the Agency’s decision deference and because we do not find the Agency’s interpretation of the Code or the Act to be either unreasonable or erroneous, we affirm the administrative order which denied Kronon reimbursement for corrective action taken prior to notification of the ESDA.

Affirmed.

McNULTY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL LOUISVILLE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—3595
    Opinion filed November 18,1992.
    Rehearing denied March 9,1993.

      Rita A. Fry, Public Defender, of Chicago (Lynn Hubanks Miller and Robert Guch, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen M. O’Neill, and Michael B. McHale, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Samuel Louisville, was convicted of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)) and sentenced to six years’ imprisonment. On appeal, defendant asserts that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) he was denied due process because the knife used in the crime was not offered as evidence at trial; (3) he was denied due process because a repossession notice was attached to a document that went to the jury room; (4) he was denied due process because a photograph showing his knife and ski mask was admitted into evidence, although not shown to the jury; (5) he was denied due process because the State made improper comments during the trial and closing arguments; (6) he was prejudiced by testimony of the police radio messages concerning the robber’s description; and (7) his motion for substitution of judge was improperly denied. We affirm the conviction.

On January 25, 1988, Eugene Tellez was working alone at Jack’s Mobil gas station at 162nd and State Streets in South Holland. Defendant came into the station about 8 p.m. Around the same time, a woman entered the station, paid for gas, and left. After defendant gave Tellez $2 for gas, Tellez told him that he would have to stop the pump himself because it could not be stopped from inside. At that time, Tellez observed defendant for one to two minutes.

When defendant pumped over $5 worth of gas, Tellez went outside to tell defendant that he had gone over the $2. Since Tellez was within 10 feet of defendant’s red Chevette and the outside area was well lit, Tellez could see defendant’s face. Before leaving, defendant paid for the extra gas.

Around 8:30 p.m., Tellez saw defendant return to the station, park his car on the side of the station, and enter the station, complaining that it was cold outside. He asked for a pack of Virginia Slims cigarettes and gave money to Tellez, who was standing behind the counter. Tellez gave defendant the cigarettes, put the money on top of the cash register, and opened it to make change. At that point, defendant tried to grab Tellez with his left hand and pulled a knife from inside his pants with his right hand. Tellez pulled away quickly and fell to the floor, telling defendant, “Take anything you want, I don’t care what you do, just leave me alone.”

Tellez watched defendant reach over the counter and take money from the open cash register. When defendant noticed Tellez looking at him, he warned, “[I]f you call the police, I’ll shoot you, I will shoot you.” Tellez ran out the back door and behind the building. From there, he watched defendant leave the gas station. When defendant saw Tellez watching him, he again threatened that he would come looking for Tellez if he called the police. Defendant got into his car and drove southbound on State Street.

Tellez went into the station, where he saw the open cash register and money lying on the floor. It was later determined that approximately $307 had been taken. Tellez called the police. When they arrived, Tellez described the robber as a black man, approximately 6 feet 2 inches tall, and 220 pounds, wearing a tan leather jacket and a Chicago Bears baseball cap. Tellez described the knife as a hunting knife with a black handle and a six- to eight-inch blade. He also told the police that the robber was driving a red Chevette, traveling south on State Street.

About 30 minutes later, defendant was brought to the gas station, where Tellez identified him as the robber. Later that evening, Tellez went to the police station and identified the Chevette. The knife used in the robbery and a pack of cigarettes were on the car seat.

Officer Michael Becka of the South Holland police department testified that he interviewed Tellez at the gas station. At 8:45 p.m., he transmitted a radio message that there had been an armed robbery at the gas station and an undetermined amount of currency had been taken. The message described the robber as a large-built black man, 6 feet 2 inches tall, with a six- to eight-inch survival-type hunting knife, driving a red two-door Chevette last seen going southbound on State. Three to five minutes later, in response to requests for more information, Officer Becka transmitted a clothing description, including the Chicago Bears baseball cap.

Officer Brad Borys of the Lansing police department testified that he was at the intersection of Torrence Avenue and 173rd Street, in Lansing, when he saw defendant driving a car that matched the description from the police radio message. Defendant was turning around in a gas station. Instead of stopping for gas, defendant went east on 173rd Street, then north on Torrence Avenue.

Borys followed defendant, staying one car length behind and one lane to the right of defendant’s car. Borys stated that he pulled alongside defendant’s car, where he observed defendant’s face and clothing. Noticing that defendant was wearing a Chicago Bears cap, Borys contacted the South Holland police and asked for a clothing description. As Borys was getting the additional information, defendant abruptly turned left into a Wendy’s restaurant without using the center turn lane. Borys pulled into a driveway about 100 feet away and watched defendant walk into the restaurant.

When back-up arrived, Borys went into the Wendy’s restaurant and arrested defendant. Borys walked over to defendant’s car and looked through the window. On the passenger seat, he saw a knife matching the radio message’s description and an unopened pack of Virginia Slims cigarettes. No money was recovered from the car, but a tan leather jacket was found in the car.

Defendant testified that he was on vacation from his job as a crane operator on January 25, 1988. According to defendant, he used a knife to strip rolls of paper at work and he usually kept the knife in his car when he was not at work. Around 8 p.m., defendant went to the Mobil gas station. While he was pumping gas, Tellez came out of the station, leaned over the car, and told him he was going over the dollar amount. Defendant stated that he had not yet paid Tellez any money. He said he was planning to buy $5 worth of gas, but went over that amount.

At that time, a woman drove into the station and went inside. According to defendant, he followed her into the station and saw Tellez give her a small brown paper bag. Defendant then paid for the gas and bought a pack of cigarettes. When defendant left, Tellez and the woman were still inside the station. In rebuttal, Tellez denied giving a brown paper bag to a woman on the night of the robbery.

Defendant then testified that he stopped at two nearby car dealerships before going to the Wendy’s restaurant, where he was arrested. He admitted having a knife in his car, having $9.20 on him, and wearing a tan leather jacket when he was arrested. He denied all other allegations, including that he turned around in the gas station at 173rd Street and Torrence Avenue.

On cross-examination, the State asked defendant whether he had made any post-arrest statements. Defendant replied that he spoke to the police and to some lawyers. On redirect examination, defendant stated that he told the police, “I haven’t robbed anybody.”

The jury returned a guilty verdict and defendant was sentenced to six years’ imprisonment.

Defendant asserts that the State did not prove him guilty of armed robbery beyond a reasonable doubt since his actions after leaving the gas station were inconsistent with guilt. We disagree.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) It is not the reviewing court’s function to retry defendant when considering a challenge to the sufficiency of the evidence of his guilt. People v. Jimerson (1989), 127 Ill. 2d 12, 43.

This case rested on the credibility of the witnesses. Determinations of credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence are exclusively within the province of the jury. (Jimerson, 127 Ill. 2d at 43.) Any conflicts in the testimony are to be resolved by the jury. (Collins, 106 Ill. 2d at 261-62.) Where the guilt or innocence of the defendant depends on the credibility of conflicting testimony, the jury’s findings should not be disturbed on review unless they are palpably against the manifest weight of the evidence. People v. Jacquith (1984), 129 Ill. App. 3d 107,113.

Where the identification of the defendant is at issue, the trier of fact is not required to accept the defendant’s alibi testimony over the positive identification by the victim. (People v. Palmer (1989), 188 Ill. App. 3d 414, 420.) The testimony of a single witness, if positive and credible, is sufficient for a conviction even in the presence of contradictory alibi testimony. (Palmer, 188 Ill. App. 3d at 421.) The test of a positive identification is whether the witness had an opportunity to view the offender for a sufficient length of time under conditions adequate for observation. Palmer, 188 Ill. App. 3d at 421.

The jury had the opportunity to view both Tellez and defendant while they were testifying and to determine their credibility. Tellez positively identified defendant as the man who robbed him and defendant’s knife as the one used during the robbery. Tellez had at least four opportunities to view defendant at close range in a well-lit area. When the police arrived, Tellez gave them descriptions of the robber’s physical characteristics, clothing, and car.

Next, defendant asserts that he was denied due process of law because the knife used in the crime was not offered as evidence at trial; the police confiscated and kept the knife found in his car; the State used the knife as a major issue at trial; and the police or the State negligently lost the knife, depriving defendant of the opportunity to make in-court demonstrations of how he used the knife at work and how Tellez could not have observed the knife’s details if it had been pulled from defendant’s waistband in the manner alleged.

To support his position, defendant relies on People v. Steptoe (1976), 35 Ill. App. 3d 1075, 1079, which stated that sometimes due process requires a new trial if the police lost confiscated evidence through their negligence and deprived a defendant of the opportunity of determining whether the evidence might be helpful in his defense. Steptoe, however, supports the State’s argument, not defendant’s. The Steptoe court upheld the defendant’s conviction despite the fact that police failed to produce a note used in an attempted robbery. 35 Ill. App. 3d at 1078.

We reject defendant’s argument. Due process violations are found when the prosecution purposefully suppresses available evidence favorable to the defendant. (Steptoe, 35 Ill. App. 3d at 1079.) Unless a defendant shows bad faith by the police, failure to preserve potentially useful evidence is not a denial of due process of law. (Arizona v. Youngblood (1988), 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337.) There was no evidence of bad faith by the police or the State in not presenting the knife at trial.

Any duty the Constitution imposes on the prosecution to preserve evidence must be limited to evidence that might be expected to play a significant role in the defendant’s defense. (California v. Trombetta (1984), 467 U.S. 479, 488, 81 L. Ed. 2d 413, 422, 104 S. Ct. 2528, 2534.) Defendant did not show that he expected the knife to be significant in his defense.

The knife not being presented at trial did not prejudice defendant because Tellez testified that he saw the knife and positively identified it in a photograph of defendant’s car showing the knife on the front passenger seat. Furthermore, any demonstrations of how the knife was used or would be taken from defendant’s waistband were irrelevant. Thus, there was no due process violation.

Next, defendant asserts that he was denied due process because a repossession notice was improperly attached to the abstract of title to his car. Since the notice went to the jury room, defendant claims that it could have caused the jury to improperly question defendant’s credibility or to improperly infer a motive from that document.

Defendant waived this issue. The exhibit was tendered to the defense counsel in court, defense counsel looked at it, and stated that he had no objection to its admission. If defense counsel was surprised by the documents and needed more time to review them, the proper recourse was to ask for a recess or a continuance at that time. Generally, the failure to seek a continuance waives a claim of error based on surprise. (People v. Jackson (1990), 198 Ill. App. 3d 831, 847; People v. Nelson (1980), 92 Ill. App. 3d 35, 45.) Since defense counsel looked at the exhibit and overlooked the document and stated that there was no objection, defendant cannot now claim unfair surprise and prejudice.

Next, defendant asserts that he was denied due process because a photograph showing defendant’s car interior with a knife, cigarettes, and a ski mask was improperly admitted into evidence. Defendant contends that the photograph was not relevant or material because it was not probative of the issue involved, which was whether he used the knife to commit the armed robbery when he purchased the cigarettes. Defendant states that he never denied having a knife or a pack of cigarettes in his car.

Defendant’s argument is meritless. It is within the trial court’s discretion to determine whether evidence is relevant and admissible, and its decision will not be overturned absent a clear abuse of discretion resulting in manifest prejudice to defendant. (People v. Hayes (1990), 139 Ill. 2d 89, 130.) Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. People v. Gonzalez (1991), 142 Ill. 2d 481, 487-88.

The trial court allowed the State to use the photograph for the purpose of identifying the knife and the cigarettes. It was relevant to corroborate Tellez’s identification of defendant by showing the knife used in the robbery and the pack of cigarettes taken by defendant from the gas station. It was also relevant to corroborate Officer Borys’ testimony about seeing those items in defendant’s car at the time of his arrest.

Defendant also argues that the photograph was highly prejudicial and inflammatory because it showed a ski mask next to the knife and cigarettes. The very existence of the photograph created suspicion and presumption of concealment in the jury’s mind, defendant claims.

It is the trial court’s function to weigh the probative value and prejudicial effect of evidence in determining whether it should be admitted. (Gonzalez, 142 Ill. 2d at 489; People v. Eyler (1989), 133 Ill. 2d 173, 218.) The trial court correctly balanced those considerations. Although the trial court admitted the photograph into evidence, it did not allow the photograph into the jury room or to be passed among the jurors. The jury saw it only briefly from 10 feet away during closing arguments. There was no mention of the ski mask and no evidence that the jury ever saw the ski mask.

Next, defendant asserts that he was denied due process because the State improperly commented on his post-arrest silence. Although he made some post-arrest statements, defendant argues that they were not justified as impeachment because they were not inconsistent with his trial testimony. After his arrest, defendant told the police that he did not commit the robbery, but was at the gas station, where he bought cigarettes and gas. At trial, defendant testified that he did not tell the police about the woman to whom Tellez allegedly passed a brown paper bag.

During its closing argument, the State commented that defendant remembered the woman and her car in great detail, but never told the police or the lawyer that he saw Tellez hand the woman a brown paper bag. This argument was intended to invite the jury to infer from defendant’s initial silence that his trial testimony was a recent fabrication. (See People v. Ridley (1990), 199 Ill. App. 3d 487.) In Doyle v. Ohio (1976), 426 U.S. 610, 617, 49 L. Ed. 2d 91, 97, 96 S. Ct. 2240, 2244, the United States Supreme Court ruled that silence following recitation of the Miranda warnings is always ambiguous because the silence may be nothing more than the accused’s exercise of his right to remain silent. The court further ruled that it is fundamentally unfair to permit use of a defendant’s silence as impeachment after inducing him to remain silent. Doyle, 426 U.S. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.

The State argues that there was no Doyle violation since defendant did not remain silent after his arrest. Instead, the State maintains that his statements were inconsistent with his trial testimony.

The State’s cross-examination of defendant and closing argument comments were improper. Defendant’s post-arrest statements were not inconsistent with his trial testimony. Before the prosecution is permitted to comment on the defendant’s post-arrest silence, there must be a showing of manifest inconsistency between the defendant’s post-arrest statement and his trial testimony. People v. Smith (1987), 157 Ill. App. 3d 465, 469.

No such showing was made. Before trial, defendant simply denied committing the armed robbery although he admitted being at the gas station to purchase gas and cigarettes. He did not contradict those statements at trial. Instead, he added that he saw Tellez pass a brown paper bag to a woman.

Since the evidence of defendant’s guilt is overwhelming, however, the prosecutor’s improper comments did not substantially prejudice defendant and are harmless error. For a trial error affecting a constitutional right to be held harmless, it must be determined beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. (Chapman v. California (1967), 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827; Fahy v. Connecticut (1963), 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 173, 84 S. Ct. 229, 230.) Considering the totality of the evidence presented, we conclude that a trial without this error would produce no different result. People v. Warmack (1980), 83 Ill. 2d 112, 128-29.

Defendant then argues that the State improperly shifted the burden of proof to him during closing arguments. Defendant waived this issue, and we decline to consider it under the plain error rule.

Next, defendant asserts that he was prejudiced by the introduction of the police radio messages concerning the robber’s description. Citing People v. Orr (1986), 149 Ill. App. 3d 348, defendant argues that the police radio message testimony, both as hearsay and as a prior consistent statement, impermissibly bolstered the veracity of the victim’s observation of the defendant as the robber. The Orr decision, however, is contrary to defendant’s position since it reversed the conviction due to the cumulative prejudicial impact of numerous trial errors. (149 Ill. App. 3d at 362.) The Orr court stated that there was no prejudicial error in introducing evidence of the police officer’s testimony of circumstances surrounding the defendant’s arrest because it was an integral part of the narrative of police investigation of the crime leading to the arrest. Orr, 149 Ill. App. 3d at 365.

We reject defendant’s argument. The content of a police radio message is not hearsay if it is offered for the limited purpose of explaining the reason and manner in which the police conducted their investigation. (Palmer, 188 Ill. App. 3d at 423.) A police officer may testify to the contents of police radio communications where such testimony is offered to show that the police officer had probable cause to arrest on the basis of the communication. People v. Williams (1978), 62 Ill. App. 3d 966, 974.

Finally, defendant asserts that his motion for substitution of judge was improperly denied since the trial court was predisposed to questioning defendant’s credibility. Defendant relies on Tumey v. Ohio (1927), 273 U.S. 510, 531, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444, which is distinguishable because that judge was paid for his services only when he convicted the defendant, thus violating due process. The Court stated that due process is violated if a judge has a direct, personal, substantial, or pecuniary interest in convicting the defendant. Tumey, 273 U.S. at 523, 71 L. Ed. at 754, 47 S. Ct. at 441.

Defendant also cites People v. Chatman (1967), 36 Ill. 2d 305, 309, where the court ruled that a defendant has an absolute right to a different judge in a trial on a second charge if the judge indicates during the first trial that he does not believe the defendant. Chatman is distinguishable because the judge in that defendant’s first rape trial did not allow the State to offer rebuttal testimony because he had already made up his mind. Chatman, 36 Ill. 2d at 307.

On October 1, 1990, this case was set for trial. Defendant, who was present in court, told the judge that he had the flu. The trial court excused him to go to the doctor and called a recess until 1 p.m. that afternoon. The trial judge told defendant that without a medical excuse, he would not give a continuance.

At 1 p.m., the defense counsel told the judge that defendant was at the Ingalls Hospital emergency room, waiting to see the doctor. The trial court gave a continuance until the next day. On October 2, 1990, the trial court asked about the status of defendant’s illness. At that time, he continued the case until October 9, 1990, due to defendant’s illness. On October 9, 1990, the trial court continued the case to October 15, 1990. He stated that he would deny another continuance without medical records and the doctor coming to testify.

On October 15, 1990, defendant filed a petition for substitution of judge for cause. Another judge heard the petition, denied it, and transferred it back to Judge Gierach for trial.

The burden of establishing actual prejudice is on the defendant. (People v. Vance (1979), 76 Ill. 2d 171, 178.) A defendant’s right to substitute judges for cause is not absolute, but requires substantiation to ensure that his claim of prejudice is not frivolously made. (People v. Washington (1984), 121 Ill. App. 3d 479, 485.) In the absence of proving animosity, hostility, ill will, or distrust towards the defendant, he falls short of establishing actual prejudice that would interfere with a fair determination of his guilt or innocence at trial. People v. Neumann (1986), 148 Ill. App. 3d 362, 370.

The trial court did not err in denying defendant’s motion for substitution of judge. Defendant did not establish that the trial court had any actual prejudice against him. There was no showing of animosity, hostility, ill will, or distrust toward defendant. Vance, 76 Ill. 2d at 181.

Based on the foregoing, the circuit court’s judgment is affirmed.

Affirmed.

RIZZI and TULLY, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CAMPBELL, Defendant-Appellant.
    First District (6th Division)
    No. 1—91—1220
    Opinion filed December 4, 1992.

      Rita A. Fry, Public Defender, of Chicago (Pamela Pfrang, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Matthew L. Moodhe, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, James Campbell, was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)) and aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(b)) of his 11-year-old daughter, and was sentenced to a term of 10 years. Defendant appeals, contending that the hearing conducted pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10) failed to comport with the statutory requirements; the entry of judgment on the aggravated criminal sexual abuse conviction should be vacated; and that improper prosecutorial comments were made during closing arguments.

The record reveals the following pertinent facts. The victim was born on June 22, 1978, and lived with her mother and defendant, her natural father, until he moved out in 1989. Thereafter, the victim saw her father approximately once a week. The victim testified that on the morning of December 29, 1989, she was at home with her mother, who was preparing to go to work when defendant arrived. Shortly after her mother left the apartment, the victim, dressed in a nightgown, went into her bedroom and listened to the radio. Defendant called to the victim from her mother’s bedroom. Defendant was lying in the bed and had a blanket covering him. Defendant was not wearing any clothes. Defendant told the victim to get on top of him, and inserted his penis into her vagina. Defendant then moved his body up and down against the victim. After engaging in intercourse for one or two minutes, defendant told the victim to take a shower. Thereafter, defendant took the victim out to the store to buy some food. They did not discuss what had happened; however, defendant told the victim that she better not tell her mother about what had occurred.

On January 2, 1990, the victim was at her cousin Zaundra’s apartment. Zaundra was 13 years old. The victim testified that she told her cousin about the incident which had occurred with her father four days earlier. At that point in the trial, defendant objected to the victim’s testimony concerning what she had told Zaundra. Defendant contended that the victim’s testimony regarding her statement to Zaundra was hearsay and inadmissible unless the trial judge conducted a section 115 — 10 hearing to determine the reliability of the statement. (Prior to trial, the court had inquired whether the State would seek to introduce outcry statements made by the victim concerning the incident that would require an additional hearing. The State indicated that it did not anticipate adducing that type of testimony, thereby negating the need for such hearing prior to trial.)

After conducting a cursory analysis of the statute and case law, including People v. Salas (1985), 138 Ill. App. 3d 48, 485 N.E.2d 596, the judge determined that a section 115 — 10 hearing was appropriate. Outside the presence of the jury, the judge asked the victim preliminary questions concerning her disclosure to her cousin. The victim stated that about four days after the incident, she was at the apartment of Zaundra and Zaundra’s mother. Zaundra told the victim that she was “acting funny” and asked the victim whether something was wrong. After the victim told Zaundra what had happened, Zaundra went into another room and told her mother about the incident. A few minutes later, the victim’s mother arrived at the apartment. The judge inquired whether Zaundra and her mother would be available for cross-examination. The judge determined that the victim’s testimony concerning the time, content, and circumstances of the statement provided sufficient safeguards of reliability. No other witnesses were called to testify at the section 115 — 10 hearing.

The victim’s mother testified at trial that she met defendant in the summer of 1976 and that they began living together shortly after the victim was born. They lived together until early 1989, at which time defendant began having personal problems and moved' out of the apartment. On the morning of December 29, 1989, she left her daughter and defendant at the apartment while she went on a job interview. The victim’s mother described the victim’s demeanor as withdrawn and moody for three days following the incident, and that she persistently asked her daughter whether she had a problem.

On January 2, 1990, the mother went to her sister’s residence after work. The victim, Zaundra, and the mother’s sister were present when she arrived. The mother had a conversation with the victim, and she next talked to her sister. After speaking with her sister, she called the police. The victim was then taken to a hospital for examination. The mother described the relationship between her daughter and defendant as normal.

Zaundra testified that on January 2, 1990, she was at home with her mother and the victim. Zaundra stated that she and the victim “were like sisters.” Zaundra stated that she spoke with the victim on that day and she seemed nervous and upset. Zaundra did not testify to the content of the conversation she had with the victim.

Sergeant Larry Strzechowski testified that he and his partner were assigned to investigate the victim’s complaint against defendant. On January 3, 1990, Strzechowski picked up defendant at his place of employment, advised him of his Miranda rights, and drove him to the police station. Thereafter, Assistant State’s Attorney Penny Gainer testified that she again read defendant his Miranda rights. Gainer informed defendant of the allegations made by his daughter against him and prepared a handwritten statement of his account of the events which he signed.

In his statement, defendant indicated that he arrived at the victim’s apartment on the morning of December 29, 1989, around 7 a.m., and that the mother left for work about three hours later. Defendant went into the mother’s room and was lying down on the bed. About one-half hour later, the victim came into the room wearing a tee-shirt and underpants. The victim got into bed with defendant, and the two of them “played with each other for a while.” The victim got on top of defendant. Defendant had his shirt and his pants on. Defendant began to hold his penis after unzipping his pants. Defendant touched his penis to the victim’s vagina while her underpants were on, but moved to one side so that contact could be made. The victim moved up and down on top of defendant while he held his penis against her vagina. Defendant did not put his penis inside the victim’s vagina. Shortly thereafter, defendant asked the victim to take a shower because he was going to take her for something to eat. They went to a restaurant after the victim showered. Defendant first started having his penis touch the victim’s vagina when she was about nine years old.

Defendant testified that at the time of the alleged incident, his relationship "with the mother was not good, and that they had problems concerning money the victim’s mother wanted from defendant for the support of the victim. Defendant denied any inappropriate touching of the victim, or that she touched him, and denied having sex with his daughter. Defendant denied signing the statement prepared by Gainer, but that he did sign a statement prepared by the police. In rebuttal, Gainer testified that no other handwritten statements were prepared other than the one which was signed by defendant.

During closing arguments, the prosecutor stated that we must hear and listen to our children, and when things happen to children, they must be believed and that the victim must be believed. The judge overruled defendant’s objection to the statement.

On appeal, defendant first contends that the section 115 — 10 hearing conducted by the trial court failed to comport with the mandates of the statute. Specifically, defendant complains that although the section 115 — 10 hearing was called during the State’s direct examination of the victim, the State neither before trial nor during the hearing itself gave notice of all the outcry evidence it sought to place into evidence. Defendant argues that the State failed to comply with the statutory requirement to give the defense “reasonable notice of [its] intention to offer the statement,” nor did the State provide defendant with “the particulars of the statement” it sought to offer. Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(d).

Section 115 — 10 provides in relevant part:

“§115 — 10. (a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such an act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
* * *
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.

Prior to the passage of section 115 — 10 of the Illinois Code of Criminal Procedure, Illinois law largely limited testimony concerning corroborative complaints to rape cases and to the fact that a complaint was made. Section 115 — 10 was initially enacted to extend the common-law corroborative-complaint doctrine to complaints of young victims of sexual offenses other than rape. (See Ill. Rev. Stat. 1983, ch. 38, par. 115 — 10; see also People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366.) However, the courts soon recognized that in order to effectively corroborate the fact that a complaint was made, the testimony pertaining to the complaint necessarily had to include some detail. (See People v. Thompson (1990), 198 Ill. App. 3d 417, 421, 555 N.E.2d 1122, citing People v. Deal (1989), 185 Ill. App. 3d 332, 541 N.E.2d 695.) The legislature amended section 115 — 10 effective January 1, 1988. As amended, section 115 — 10 now permits hearsay testimony concerning details of the offense beyond the mere fact that a complaint was made. (People v. Thompson, 198 Ill. App. 3d 417, 555 N.E.2d 1122; People v. Morton, 188 Ill. App. 3d 95, 543 N.E.2d 1366; People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125.) Thus, the judge’s reliance upon People v. Salas was misplaced, because the trial in this case occurred subsequent to the amendment of section 115 — 10.

Defendant correctly asserts that the State, as the proponent of the evidence, bore the burden of proving that the “time, content, and circumstances” of the victim’s statements provided “sufficient safeguards of reliability.” (See Idaho v. Wright (1990), 497 U.S. 805, Ill L. Ed. 2d 638, 110 S. Ct. 3139.) Defendant argues that protections afforded him pursuant to the confrontation clause were violated because the statements offered did not provide sufficient safeguards of reliability. In order for corroborating statements such as those offered at trial to be admissible under the confrontation clause, “hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Idaho v. Wright, 497 U.S. at 822, Ill L. Ed. 2d at 657,110 S. Ct. at 3150.

Defendant complains that at trial, outcry testimony was elicited from the victim, her mother, Zaundra, Officer Strzechowski and Assistant State’s Attorney Gainer; however, defendant did not raise this issue in his post-trial motion. Nor did defendant object at trial to the lack of sufficient notice or detail of the victim’s testimony, nor did he raise this issue in his motion for a new trial. We find, therefore, that defendant’s failure to expressly raise this issue in his post-trial motion results in waiver upon review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Mitchell (1991), 215 Ill. App. 3d 849, 576 N.E.2d 78.) While defendant did attack the propriety of the section 115 — 10 hearing, he challenged it only on the basis of the admissibility of testimony concerning an unrelated incident involving consensual sex between the victim and two minors two days after this incident occurred.

Even assuming that defendant did not waive this issue, careful review of the record finds it devoid of any testimony from the victim’s mother, Zaundra, Strzechowski and Gainer of any detail of the conversation in which the victim first related to Zaundra that defendant forced her to have sexual relations with him. Indeed, the victim herself only testified that the first person she told about the incident was Zaundra, which precipitated the section 115 — 10 hearing. Once the hearing was completed and the trial resumed, the court sustained defendant’s objection during the victim’s testimony concerning what Zaundra told her mother and the victim’s mother. The victim’s other testimony in this regard simply stated that she told Zaundra, and no further detail was elicited. Defendant acknowledges that the jury never heard the content of the outcry statement, and that most of the testimony did not concern details of what was said, only that the victim either “told me” or “told what happened.” As such, we reject defendant’s contention that he was deprived of a fair trial because the other purported outcry witnesses were not subjected to a section 115 — 10 hearing.

Review of the testimony of the victim's mother reveals that she had a conversation with her daughter and her sister, after which she called the police. Similarly, Zaundra testified that she talked with the victim, and thereafter she spoke with her mother, and later the mother of the victim. Strzechowski also stated only that he spoke with the victim. Admittedly, Strzechowski later testified that Gainer told defendant that the victim had told her that she had sexual intercourse with her father, and that he also told defendant that the victim told him that she had sexual intercourse with her father. However, we find the effect of such testimony harmless under the circumstances in view of the substantial corroborating evidence and the fact that none of the details of the conversation was elicited at trial.

Defendant next contends that the court should vacate his conviction for aggravated criminal sexual abuse. Specifically, defendant contends that the trial court improperly entered judgment against defendant for aggravated criminal sexual assault and aggravated criminal sexual abuse, a lesser included offense, in violation of the “one act-one crime” rule. However, at sentencing the court stated there will be no sentence on the aggravated criminal sexual abuse conviction because for purposes of sentencing, it merged with the conviction for aggravated criminal sexual assault. While it is axiomatic that there is no final judgment in a criminal case until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be entertained (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507), it does not follow, however, that the conviction must be vacated. Thus, there can be no appeal of defendant’s conviction of aggravated criminal sexual abuse in view of the absence of an imposition of sentence.

Finally, defendant complains that he was denied a fair trial because of instances of prosecutorial misconduct during closing arguments. Defendant contends that the State attempted to attach substantial weight behind the State’s key witnesses as falling within inherently believable categories, including child sexual complainants, their mothers, police and prosecutors. However, defendant failed to include this issue in his post-trial motion for a new trial, which results in waiver upon review. (People v. Fields (1990), 135 Ill. 2d 18, 552 N.E.2d 791; People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) Nor do we find that the comments made during closing argument deprived defendant of a fair trial or were so egregious as to warrant the application of the plain error doctrine. In order that statements made in closing arguments be considered plain error, they must be either “so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process.” (People v. Phillips (1989), 127 Ill. 2d 499, 524, 538 N.E.2d 500.) In the present case, we do not find that the comments made by the State in closing argument should be characterized as plain error.

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

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WILLIS et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—91—3232, 1—91—3236, 1—91—3980 cons.
    Opinion filed December 11,1992.

      Rita A. Fry, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellants Terry Willis and Camille Smith.
    Thomas J. McDonough, of Chicago, for appellant Robert Smith.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jon J. Walters, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following separate, simultaneous bench trials, defendants Terry Willis, Camille Smith and Robert Smith were found guilty of armed robbery, and each defendant was sentenced to six years’ imprisonment. Defendants appeal, contending that they were not proved guilty beyond a reasonable doubt. Willis and Camille Smith further contend that the trial court improperly restricted the cross-examination of the victim.

The following facts were adduced at trial. Camille Smith and the victim, Eddie Davis, previously dated and lived together. On August 19, 1988, the victim called Camille and asked whether she wanted to go for a drink later that night after he finished work. Camille agreed, and the two arranged to meet at a tavern. The victim arrived at the tavern around midnight. Camille and her cousin, Robert Smith, arrived shortly thereafter. Camille asked the victim to give Robert gas money for driving her to the tavern. The victim gave the money to Robert. Camille and the victim sat at the bar and ordered drinks.

Approximately 10 minutes later, Willis entered the bar. After a brief conversation, Willis asked the victim for bus fare. The victim gave the money to Willis, and also bought him a beer. The victim told Camille that he did not intend to spend any more money on her friends.

Camille agreed, and she and the victim left the bar. After visiting an adjacent restaurant, they walked to the corner to catch a bus or cab. While they were waiting at the corner, a co-worker of the victim’s, Jerome Ferguson, and his girl friend pulled up to the curb and asked whether they wanted to accompany them to a barbecue restaurant. Camille and the victim entered Ferguson’s car and drove to the restaurant. Ferguson entered the restaurant while his girl friend remained in the car.

The victim testified that he and Camille exited the automobile and were walking south to the corner of 79th Street. Willis and Robert were walking toward them. Willis ordered the victim to give him his money, and hit him with a shiny circular object which the victim described as a gun or pipe with a hole in it. The victim stated that the weapon was approximately six inches long and that it was made of steel. Willis hit the victim’s left wrist with the weapon. During the course of the ensuing fight with Willis and Robert, they hit the victim and knocked out two of his teeth. Robert and Willis tried to remove the victim’s wallet from his back pocket. Willis told Camille to take the victim’s wallet while he and Robert held him down. Camille jumped on the victim, tore his pants, and took the wallet out of his pocket. The three defendants then fled through an alley. The victim estimated that his wallet contained approximately $700.

Ferguson took the victim to the police station at 51st and Wentworth to file his complaint. The victim’s brother, who was an officer at that station, took him to the hospital. The victim’s wrist was fractured in three places. He also received bruises and scars as a result of the altercation.

On cross-examination, the victim stated that after he refused to drop the charges against Camille, her family became angry and accused him of sexually molesting Camille’s daughter. He denied arguing with Camille about the purported molestation on the evening of the robbery. The victim further testified that the object wielded during the robbery could have been a pistol, pipe, or a wrench; it could not have been a ring on the finger of one of the assailants.

On redirect examination, the victim testified that Camille’s mother fabricated the allegations against the victim to intimidate him into dropping the charges against her daughter. The victim first learned of the allegations during a court appearance after the robbery. Charges were never filed against him.

Ferguson testified for the State that he worked with the victim and that they worked until 10 p.m. on the night of the incident. At about 12:45 a.m., he and his girl friend saw the victim and Camille. Ferguson asked the couple whether they needed a ride and drove them to a barbecue restaurant. After Ferguson entered the restaurant, his girl friend ran in and spoke to him. He ran outside and saw two men holding the victim down on the ground and going through his pockets. Ferguson did not see Camille at that time. Ferguson ran over to the victim and asked whether he was hurt. Ferguson drove the victim to the police station and later identified Willis and Robert at a police lineup.

On cross-examination, Ferguson stated that Camille and the victim never argued while they were in his car. Ferguson did not see a weapon during the attack; however, he was standing approximately 20 feet from where the incident occurred.

The parties stipulated that if Detective Barry Costello were called as a witness, he would testify that on September 2, 1988, he interviewed Willis and Robert. Willis told Costello that he did not know the victim, nor did he have any knowledge of the armed robbery. Robert indicated that he knew the victim and he saw him on the night of the incident, but that he had no knowledge of the robbery.

During a second interview conducted after the lineup, Willis told Costello that he was with Robert in his automobile, which was parked on Halsted Street. Willis observed the victim and Camille across the street arguing. Robert joined in the melee. The victim was knocked to the ground, and Camille ripped the victim’s pants and took his wallet. Camille and Robert returned to the car and they left the area.

During Robert’s second interview, he told Costello that he observed the victim arguing with Camille. Willis exited the automobile with a shiny object in his hand and approached Camille and the victim. Shortly thereafter, a fight ensued and the victim was knocked to the sidewalk by Willis. Camille ripped the victim’s pants and took his wallet. Willis and Camille returned to the car and they left the area. Robert received $40.

The parties further stipulated that Doctor Young of Roseland Community Hospital treated the victim and determined that there were two left lower incisors missing from his mouth. He would further testify that the victim’s left wrist had a comminuted fracture.

At the close of the State’s case in chief, the trial court denied defendants’ motion for a directed verdict on the armed robbery count. They unsuccessfully argued that the State had failed to prove beyond a reasonable doubt the existence of a dangerous weapon.

Camille testified that the victim had been her boyfriend for approximately three years. On the night of the incident, Camille, Robert and Willis went to the lounge where she met the victim. The group began drinking beer. Camille asked the victim why he had molested her daughter. She then left the lounge with the victim and Willis. Robert returned to his car. Thereafter, Ferguson and his girl friend gave the couple a ride. A fight commenced between the victim and Camille concerning the accusations of molestation. Camille stated that she hit the victim, and he hit her back. Willis then tried to break up the fight. Camille admitted that while she had the victim on the ground, she saw his wallet, took it and walked away. She took the wallet because the victim attempted to sexually abuse her daughter. Willis was present when Camille took the wallet; however, she was the only person who struck the victim. Camille also stated that the victim had lost his teeth prior to this incident.

On cross-examination, Camille stated that she broke up with defendant approximately one month prior to this incident after she learned that he had molested her daughter. Camille never called the police or filed any charges against the victim.

At the close of all the evidence, the judge determined whether a dangerous weapon was used by considering the following factors:

“The record in this case reflects the testimony of Davis as being a shiny object, like steel, six inches long, and capable of imposing an injury to the extent that medical treatment required putting his arm in a cast. Whether it’s permissible for me to conclude that his arm or his wrist was therefore fractured without any medical evidence to support that is not relevant. But it is relevant that the evidence shows that whatever the injury was, it was severe enough to cause the arm to be placed in a cast by the instrumentality that he said Mr. Willis had. Consequently, I find this to be an armed robbery as defined in our statute.”

On appeal, defendants contend that they were not proved guilty beyond a reasonable doubt. All three defendants argue that the State failed to prove the use of a dangerous weapon. Willis makes the additional argument that the State failed to prove that he was accountable for Camille’s action.

Defendants assert that the evidence regarding the character of the object was insufficient to demonstrate that it was a dangerous weapon within the purview of the armed robbery statute. That statute provided in relevant part:

“A person commits armed robbery when he or she violates Section 18 — 1 [robbery] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.” Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a).

Defendants rely upon People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455, in which our supreme court found that the defendant could not be found guilty of armed robbery where the toy gun used in the commission of the offense was only Alz inches in length, was quite light in weight, and except for the cylinder, it was constructed entirely of hard plastic. The court found that it was entirely too small and light in weight to be used as a bludgeon, fired no pellets, and except for the fact that it would conceivably have been used to poke a victim in the eye, it was harmless.

We find, however, that the present case is factually distinguishable from Skelton. The Skelton court noted that in the great majority of cases, it becomes a question for the fact finder whether the particular object was sufficiently susceptible to use in a manner likely to cause serious injury to qualify as a dangerous weapon. Where the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. (People v. Skelton, 83 Ill. 2d at 66, citing People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164; People v. Dwyer (1927), 324 Ill. 363, 155 N.E. 316.) Here, the victim testified that after he was ordered by Willis to give him his money, he was struck with a shiny circular object which he described as a gun or pipe with a hole in it. He stated that the weapon was six inches in length and that it was made of steel. The victim’s left wrist was struck repeatedly with the weapon, and he felt pain each time he was struck. As a result of this injury, the wrist was fractured in three areas and placed in a cast.

While Ferguson stated that he did not see the victim’s attackers with any type of metal object, we note that the robbery occurred late at night and that he was standing approximately 20 feet away.

We are also unpersuaded by the claims that the trial judge relied on facts outside the record to determine that the victim’s wrist injury was caused by a dangerous weapon. Even if we set aside the controverted evidence concerning whether the victim lost two teeth as a result of this incident, we find that the damage sustained to the victim’s wrist, in conjunction with the bruises and scars he received during the altercation, is sufficient to substantiate the victim’s assertion that a dangerous weapon was used during the commission of the robbery. The trial judge was entitled to infer from circumstantial evidence that a dangerous weapon was used. People v. Meadows (1981), 92 Ill. App. 3d 1028, 416 N.E.2d 404; People v. Dupree (1979), 69 Ill. App. 3d 260, 387 N.E.2d 391.

Willis maintains that there was a reasonable doubt that he participated in the taking of the wallet so as to be accountable for Camille’s actions. Willis attacks the trial judge’s conclusion that based upon the victim’s and Camille’s testimony alone, there was insufficient evidence of his guilt, but when Ferguson’s testimony was taken into account, the totality of the evidence supported Willis’ conviction.

It is well established that a criminal conviction will not be set aside on insufficiency of evidence grounds unless evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Kargol (1991), 219 Ill. App. 3d 66, 578 N.E.2d 1356.) As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis added.)

In this case, the record establishes the victim stated that Willis ordered him to give him his money, and struck him in the wrist and mouth with a metal object. Robert and Willis then attempted to remove the victim’s wallet from his back pocket. Ferguson stated that he saw two men holding the victim down on the ground, and that they were going through his pockets. Ferguson identified Willis at a lineup as one of the perpetrators of the offense.

We find this evidence sufficient to establish that Willis, Robert and Camille were acting in concert; as such, we support Willis' conviction on the basis of accountability. (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) In People v. English (1975), 32 Ill. App. 3d 691, 336 N.E.2d 199, this court upheld a conviction for armed robbery where the only act in which one defendant did not take part was physical removal of money from the victim either as a principal or on the basis of accountability. The law commits to the trier of fact the determination of credibility of witnesses, weight to be given their testimony, and inferences to be drawn from the evidence. (People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.) Upon review of the record, we will not disturb the trial court’s conclusion that Willis was proved guilty beyond a reasonable doubt.

Finally, Camille and Willis contend that they were denied a fair trial when the judge improperly restricted cross-examination of the victim about whether the fact that his brother was a police officer at the station where Eddie was charged with molesting Camille’s daughter had any bearing on why the complaint was not filed. We note, however, that defendants failed to specifically raise this issue in their post-trial motions, which results in waiver upon review. It is well established that in order to preserve an issue for review, defendant must object both at trial and in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) While the plain error rule can be invoked in instances where the error complained of is so egregious that it deprives defendant of a fair trial, we do not find that the circumstances of this case warrant its application.

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

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE O’CONNOR

text:
    ESTATE OF SOLOMON JESMER, Deceased, Appellee, v. NATASHA ROHLEV, Claimant-Appellant.
    First District (1st Division)
    No. 1—91—2644
    Opinion filed January 19,1993.

      Joel Heilman, of Chicago, for appellant.
    Chuhak & Tecson, P.C. (Barry A. Feinberg and James W. Naisbitt, of counsel), and Albert Zemel, both of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Solomon Jesmer died at his home in Chicago on October 10, 1987. Jesmer left a will, which was admitted into probate on November 6, 1987. On July 11, 1988, Natasha Rohlev, Jesmer’s niece, filed a claim against the estate, seeking $100,000 for services performed for Jesmer during his lifetime. Specifically, Rohlev alleged that from September 1, 1985, up until the time of Jesmer’s death in 1987, she served him as a companion, cooked for him and his three nurses, and ran the household by doing the shopping and the cleaning. Rohlev also sought money for “loss of consortium” because, in order to take care of Jesmer, Rohlev had to move away from her husband, who continued to reside in Colorado. Rohlev also claimed that Jesmer promised to help Rohlev move her mother, Enya Leske, Jesmer’s younger sister, to the United States from Russia. The estate subsequently moved for summary judgment, which the circuit court granted. Rohlev appeals.

We reverse and remand.

The following evidence was adduced from portions of Rohlev’s deposition which were submitted to the circuit court. Rohlev arrived in Chicago from Colorado in June 1985 to take part in an anniversary celebration that was being planned in Jesmer’s honor. Apparently that celebration never occurred because Jesmer became ill and required hospitalization. During this time, Rohlev was told by her cousin, Victor Gregory, that Jesmer did not have long to live. According to Rohlev, Jesmer asked her to come to Chicago because he was “afraid to be alone and lonely.” When Rohlev returned to Denver, she related the situation to her husband, and they decided that she would “go and help him.” At that time, Rohlev was a student at Colorado State University and was seeking employment. Rohlev did not expect to be paid for the voluntary things that she did, and, in fact, she admitted that “everything [she] did was on a voluntary basis.” However, she filed the claim because Jesmer “asked me to come when he got sick, and I came, of course, on my own will, and helped him for two and one half years.” Moreover, Rohlev stated that Jesmer “always promised me he will help me and my mother. *** For example, when it was too hot for me and I wanted to move from his apartment, he asked me to stay. And he always would say ‘Natasha, after my death, I will leave you substantial — ’ it was his words ‘substantial amount of money, so just not to leave.’ ” Rohlev admitted that she received $5,000 from Jesmer’s estate after his death. Rohlev stated that she was seeking $50,000 for her services because Jesmer paid his nurses $30,000 per year, and she “thought” her services were worth $25,000 per year. However, she and Jesmer never agreed on the $25,000 figure, and, in fact, the two “never talked about money.” In September 1986, Rohlev’s mother suffered a heart attack. Rohlev, who was very upset, was told by Jesmer not “to worry about it” and that “everything will be okay.” When she told him that she wanted to invite her mother to the United States, Jesmer told her that she “will not be poor.”

Rohlev subsequently moved to Chicago in August 1985. Nurse Ollie Cooper was Jesmer’s sole nurse at this time. No evening nurse was secured for Jesmer until December 1985 when Nurse Bobbie Chase was hired. From August until December 1985, Jesmer was cared for by both Cooper and Rohlev. At night, Rohlev tended to Jesmer, while Cooper slept. Rohlev’s bedroom was close to Jesmer’s so that she could hear him ring his bell when she was needed.

In October 1985, Rohlev began her employment with the University of Chicago, where she worked Mondays through Fridays, from 8 a.m. until 4 p.m. On several occasions, Rohlev would work overtime on Saturdays or at nights. Rohlev stated that she had friends who lived in Wilmette and would occasionally stay with them on Saturday nights, but she would always return by Sunday afternoon. If she did this, she would always tell Jesmer, who would sometimes ask her not to go because he was feeling lonely.

Although Jesmer eventually was cared for by three nurses seven days per week, Rohlev continued to do certain things for Jesmer such as shampooing his hair, applying skin lotion to his body, and giving him manicures. Rohlev prepared a fresh dinner every night because Jesmer disliked eating “leftovers.” To that end, Rohlev arrived home from work by 5 p.m. so that she could ask Jesmer what he wanted to eat, go shopping to get the food, and serve dinner by 7 p.m. Rohlev stated that Jesmer gave her $1,000 per month for shopping. It was Rohlev’s testimony that Nurse Cooper only prepared breakfast for Jesmer because Rohlev prepared Jesmer’s lunch herself on the night before. Once a week, dinner would be ordered in from neighborhood restaurants. During the first six months of Rohlev’s stay with Jesmer, Rohlev did the laundry. Thereafter, Chase did it. The household accumulated a large amount of laundry because Cooper changed the towels and bed linen every day. Even after Chase started doing the laundry, Rohlev oftentimes would “redo” it because Jesmer was “suspicious” that the laundry had not been done correctly.

In addition to her cooking duties, Rohlev cleaned the house and reviewed Jesmer’s mail with him. Rohlev also arranged several parties for Jesmer, including three parties in one week in honor of his birthday. On such occasions, Jesmer would invite two or three couples to join them for dinner. Rohlev would prepare all the food. Rohlev also read Russian poetry to Jesmer. Rohlev shopped for Jesmer on the weekend, buying him things like pajamas.

Rohlev also filed the deposition of Marshall Patner with the circuit court. In it, Patner stated that Jesmer had told him that Rohlev had given up a great deal to come to Chicago. Jesmer also told Patner that he asked Rohlev not to return to Colorado and told him

“that her not going back to Colorado and giving up her husband for that period — they were only married for about two years when she came, *** was of great value to him, and he mentioned how much Mrs. Cooper earned, which was around $25,000, and he said that a minimum that he should take care of her in his will for some amount. But he was very mysterious in all ways, even as a client, and I don’t know if he meant more than that, but I would have taken it never to be less than that. And he was emphatic.”

Patner believed Jesmer promised Rohlev that if she gave up these things and took care of him in a limited way by supplementing the nurses, that he would compensate her in his will and that he was going to take care of her mother.

The affidavits filed on behalf of the estate contradict Rohlev’s and Patner’s depositions in all material respects. Indeed, the only undisputed fact that can be gleaned from the record is that Rohlev arrived in Chicago in 1985 and soon thereafter found employment at the University of Chicago. Chester Harris, Jesmer’s longtime friend and colleague, swore that he reviewed Jesmer’s mail with him from June 1985 until the time of Jesmer’s death. Both Harris and Victor Gregory, Jesmer’s nephew, stated that Jesmer told them that Rohlev came to Chicago to find employment. Jesmer allowed her to stay at the apartment, rent-free, in order to save money. Jesmer’s nurses, Ollie Brown and Bobbie Chase, both swore that they, along with Nurse Rose Brown, performed all the nursing duties required by Jesmer. Cooper shopped for the household’s food and prepared the daily meals. Chase did the laundry. All other household cleaning was done by Mrs. Jones. No one relied on Rohlev to do any work around the apartment because, many times, Rohlev would not return home after work. Chase was present once during a conversation between Rohlev and Jesmer concerning Rohlev’s mother. Rohlev told Jesmer that she was anxious to have her mother come to the United States, and she wanted her to live in an apartment in the same building. Jesmer told Rohlev that he would not pay for any part of the expense in bringing her mother to this country and was opposed to her living in the same building. Chase stated that Jesmer was “emphatic” about this and told Rohlev that if she wanted to do it, she would have to pay all the expense and “not count on him” to pay any part of it.

The estate, in its motion for summary judgment, argued that no agreement, either written or implied, existed between Jesmer and Rohlev, that Rohlev’s services were voluntary, and that the claim was unenforceable under the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1). In its ruling, the circuit court found that, based on all the documents which had been submitted, there was no genuine issue of material fact regarding whether there had been a contract between Rohlev and Jesmer. The court ruled that there was no implied contract between the parties, and an order to that effect was entered on July 8,1991.

A claim against an estate for services rendered to the decedent can be established by evidence of either an express or implied contract or obligation, with the burden of proof on the claimant. (In re Estate of Clausen (1977), 51 Ill. App. 3d 18, 366 N.E.2d 162.) Services rendered by a family member on behalf of another family member are presumed to be done gratuitously. (In re Estate of White (1973), 15 Ill. App. 3d 200, 303 N.E .2d 569; In re Estate of Foster (1964), 46 Ill. App. 2d 319, 197 N.E.2d 257; Meyer v. Meyer (1942), 379 Ill. 97, 39 N.E.2d 311.) The presumption may be rebutted by sufficient evidence of a contract, express or implied, to negate any presumption that the services were performed gratuitously. (Campion v. Tennes (1981), 93 Ill. App. 3d 597, 417 N.E.2d 748; Moreen v. Estate of Carlson (1937), 365 Ill. 482, 6 N.E .2d 871.) The burden is on the claimant to establish the existence of an implied contract by “ ‘proof of facts and circumstances showing that it was the intention of the parties that payment should be made for the *** services furnished.’ ” Campion v. Tennes, 93 Ill. App. 3d at 603, quoting Switzer v. Kee (1893), 146 Ill. 577, 581, 35 N.E. 160,162.

The record in the present case clearly establishes that no express contract existed between Jesmer and Rohlev. The law, however, recognizes two kinds of implied contracts, contracts implied in law (sometimes called quasi-contracts) and contracts implied in fact. (In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 461 N.E.2d 1075.) Here, the circuit court ruled that no implied contract existed between the parties, but the court did not specify upon which type of implied contract it based its ruling.

A contract implied in fact is one in which a contractual duty is imposed by reason of a promissory expression which may be inferred from the facts and circumstances and the expressions on the part of the promisor which show an intention to be bound. In re Estate of Milborn, 122 Ill. App. 3d 688, 461 N.E.2d 1075.

Here, Patner stated that Jesmer told him that Rohlev’s “not going back to Colorado and giving up her husband” ’’was of great value to him” and that “he should take care of her in his will.” Rohlev, herself, stated that Jesmer promised to leave her money after his death to take care of her and her mother. Words to that effect have been held to support a trier of fact’s finding that an implied contract to pay for services existed and that an intent to pay existed on the part of the promisor. (See Heffron v. Brown (1895), 155 Ill. 322, 40 N.E. 583; In re Estate of Dal Paos (1969), 118 Ill. App. 2d 235, 254 N.E.2d 300; In re Estate of Lyons (1940), 303 Ill. App. 642, 25 N.E.2d 555.) These promises, in addition to the burdensome nature of the work Rohlev alleged to have performed, could support a trier of fact’s finding that Rohlev expected to receive substantial payment from the resources of Jesmer’s estate, based on the promises Jesmer made to her. That Rohlev never made a demand for payment does not detract from her claim. (See In re Estate of Dal Paos, 118 Ill. App. 2d at 241.) The mere fact that there was no specific agreement as to the amount to be paid for the services, or the time of payment, does not prevent the inference of a promise to pay for necessary services requested and faithfully performed. In re Estate of McWain (1966), 77 Ill. App. 2d 359, 222 N.E.2d 576.

The estate directs our attention to Rohlev’s answer to an interrogatory question in which she stated that she performed her services of her own free will. Rohlev’s voluntary action, the estate argues, denotes that she had no expectation of being paid, and thus defeats her claim because the expectation of compensation is an element needed to establish an implied contract. We disagree with the estate’s characterization of Rohlev’s response. Rohlev’s full answer to the question was

“[i]f by voluntary you mean that I performed the services of my own free will, then the services which were performed for SOLOMON JESMER were performed voluntarily. If you have a different meaning for the word voluntarily then I do not understand the question. These services were performed based on an agreement.”

Rohlev’s answer states that the services were performed based on an agreement. Her next answer goes on to state that she

“performed these services at the request of SOLOMON JES-MER. Mr. Jesmer requested these services at numerous times during the period I was with him, *** when Mr. Jesmer first asked me to come to take care of him in Chicago, he promised to bring my mother, Enya to the United States and to see that she was adequately provided for. He also told me, at that time and numerous times before his death, that I would be taken care of for all of the services which I provided and the losses I suffered for moving to Chicago from Colorado.”

We believe the term “voluntary” as used by Rohlev in her answer to the interrogatory does not connote that Rohlev had no expectation of compensation. Indeed, “voluntary” has a number of meanings apart from doing some act gratuitously or for free. For example, “voluntary” also could mean, in this case, that Rohlev’s actions were “produced in or by an act of choice” or were “done by design or intention” (Webster’s Third New International Dictionary 2564 (1986)) in light of Jesmer’s promises. Moreover, the full context of Rohlev’s responses reveals that she expected to receive some compensation for her services.

We also find many of the cases relied upon by the estate to be distinguishable from the present case in that those appeals stemmed from trials and, as a result, do not address principles of summary judgment. See Campion v. Tennes, 93 Ill. App. 3d 597, 417 N.E.2d 748; Skurat v. Kellerman (1977), 53 Ill. App. 3d 361, 368 N.E.2d 966; In re Estate of White (1977), 15 Ill. App. 3d 200, 303 N.E.2d 569.

The purpose of summary judgment is not to try a question of fact, but rather to determine whether one exists. (Addison v. Whittenberg (1988),124 Ill. 2d 287, 529 N.E.2d 552.) A motion for summary judgment appropriately is granted if the pleadings, depositions, and affidavits on file “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Summary judgment is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right to relief. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Rambert v. Advance Construction Co. (1985), 134 Ill. App. 3d 155, 479 N.E.2d 1007.) An order granting summary judgment will be reversed if the reviewing court finds the existence of a genuine issue of material fact. Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 476 N.E.2d 413.

We are mindful that summary judgment has been found to be particularly inappropriate where the inferences sought to be drawn by the parties deal with questions of motive, intent, or subjective feelings and reactions. (In re Estate of Jessman (1990), 197 Ill. App. 3d 414, 554 N.E.2d 718; Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 423 N.E.2d 1170; Schuster v. East St. Louis Jockey Club, Inc. (1976), 37 Ill. App. 3d 483, 345 N.E.2d 168.) In the present case, both parties sought to draw inferences regarding Jesmer’s intent and feelings from the facts surrounding Rohlev’s arrival in Chicago in the summer of 1985. In fact, our review of the evidence reveals conflicting testimony as to Jesmer’s intentions regarding Rohlev’s position at the apartment. Victor Gregory and Chester Harris both stated that Jesmer told them he had invited Rohlev to stay with him rent-free so that she could find employment and accumulate money. Gregory also indicated that Rohlev enjoyed living with Jesmer and never had to do any chores. Rohlev’s deposition, however, paints a different picture of her life at the Jesmer apartment — one which entailed cooking, cleaning, and nursing chores. Patner’s testimony also indicates that Rohlev’s conduct was of “great value” to Jesmer and that Jesmer spoke of some type of compensation after his death. This tends to corroborate Rohlev’s allegations that Jesmer promised to “take care” of her in his will and could support a finding of an implied contract. In addition, we note the evidence is rife with discrepancies, some of which could be viewed as corroborative of Rohlev’s version of the events at the Jesmer apartment. For example, Rohlev stated that Nurse Chase did not begin working for Jesmer until December 1985. Chase, however, swore that she started her position with Jesmer in April 1985. Cooper stated that she prepared Jesmer’s breakfast and lunch. However, Rohlev swore that Cooper only prepared breakfast, and Rohlev made Jesmer’s lunch the night before. In view of the evidence presented to the circuit court, we are of the opinion that reasonable persons could draw different inferences from these facts regarding whether the parties intended that payment should be made for the services rendered. Accordingly, the circuit court erred in granting summary judgment.

The estate argues that, assuming an oral contract exists, its enforcement is barred by the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1) as a matter of law because the agreement could not be performed within one year.

The record indicates that Rohlev performed her obligation to tend to Jesmer’s needs. In Illinois, an oral contract is not unenforceable under the Statute of Frauds if the contract has been performed completely by one party. (Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App. 3d 669, 425 N.E.2d 1137. See also David v. Schlitz (1953), 415 Ill. 545, 114 N.E.2d 691; Mapes v. Kalva Corp. (1979), 68 Ill. App. 3d 362, 386 N.E.2d 148.) Executed contracts, as opposed to executory contracts, are never voided by the Statute of Frauds. (Swanzey v. Moore (1859), 22 Ill. 63.) Moreover, where the contract extends to a point in time, be it death or some other circumstance, at which time the full service contemplated will have been rendered, and that point of time could occur within one year, the Statute of Frauds will not be a bar to the enforcement of the action. See Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 195 N.E.2d 250, affd (1964), 31 Ill 4).

The judgment of the circuit court, therefore, is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.

      The record on appeal contains only portions of Rohlev’s deposition, and it is unclear from the record whether the circuit court considered the deposition in its entirety.

      It was Rohlev's testimony that she tended to her uncle’s needs. The evidence presented by the estate contradicts this. Thus, this too could be considered a question for the trier of fact to resolve.