author: JUSTICE O’CONNOR

text:
    ERICK A. WALTERS, Plaintiff-Appellant, v. MAREN ENGINEERING CORPORATION, Defendant and Third-Party Plaintiff-Appellee (Winter Paper Stock Company, Inc., et al., Defendants and Counterdefendants and Third-Party Plaintiffs; Air Conveying Corporation, Third-Party DefendantAppellee).
    First District (1st Division)
    No. 1 — 90—0315
    Opinion filed May 10, 1993.

      Michael R. Panter & Associates and David A. Novoselsky & Associates, both of Chicago (Michael R. Panter and David A. Novoselsky, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy J. Arnold and John C. Doyle, of counsel), for appellee Maren Engineering Corporation.
    John T. Burke & Associates, P.C., of Chicago (John T. Burke and David 0. Lehman, of counsel), for appellee Air Conveying Corporation.
    Hinshaw & Culbertson, of Chicago (Carlton D. Fisher, Nancy D. Lischer, and Gary J. Bazydlo, of counsel), for other defendants.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On September 15, 1978, plaintiff Erick Walters sustained personal injuries when he reached into an access port of a cardboard paper shredding system while working for the Love Box Company (Love Box) in Wichita, Kansas. The system consisted of conveyor belts, which fed into a shredder, a transition hood, which led into an air duct system, and a baler, to which the air ducts ultimately carried the shredded cardboard. The access port in question was located on the transition hood.

On September 4, 1980, plaintiff filed a two-count complaint in the circuit court of Cook County which asserted a strict products liability claim against defendant Maren Engineering Corporation (Maren), the manufacturer of the shredder and baler, and a negligent modification claim against defendants Winter Paper Stock Company, Inc., Laboiteaux Recycling Company, Laboiteaux Company, Segal Schadel Company and Segal Schadel Company, Inc. (the LaBoiteaux defendants, collectively). This latter theory claimed that the LaBoiteaux defendants, to whom the system was originally sold, negligently changed the glass which covered the access port from a fixed window to a moveable one. After owning and using the system for two years, the LaBoiteaux defendants dismantled it and sold it to Love Box.

Maren and the Laboiteaux defendants subsequently impleaded Love Box and Air Conveying Corporation, the original designer of the transition hood. Maren and the LaBoiteaux defendants also filed contribution actions against each other and charged plaintiff with assuming the risk and contributory negligence.

Eighteen months prior to trial, Love Box successfully moved to dismiss itself from the case based on an exclusivity of remedy provision within Kansas’ worker’s compensation laws. This dismissal is not at issue on appeal. Maren subsequently moved prior to trial to confirm the application of Kansas substantive law to the remainder of the case. Maren received the confirmation it sought.

Following a jury trial, the jury returned on June 13, 1989, its verdict which found plaintiff 40% at fault and Love Box Company 60% for plaintiff’s injuries. Maren and the LaBoiteaux defendants were found to be 0% at fault.

On appeal, plaintiff asserts that the circuit court erred in the following respects: (1) in applying the substantive law of Kansas rather than that of Illinois where Illinois has the most significant relationship to this action; (2) in allowing defendants to seek contribution from one another where Kansas, unlike Illinois, only recognizes indemnity actions; (3) in allowing defendants to introduce evidence of Love Box’s negligence at trial where plaintiff was not previously notified that such evidence would be offered; (4) in directing plaintiff’s expert during cross-examination to either invoke the fifth amendment’s self-incrimination privilege or answer the question posed, where such court action suggested criminal activity on the part of the expert; (5) in precluding plaintiff from amending his complaint following trial to allege a negligence action against Maren where such amendment merely conformed the pleadings to the proof; (6) in instructing the jury with certain Kansas pattern jury instructions where they did not adequately set forth plaintiff’s theory of his case and improperly allowed apportionment of fault contrary to Kansas law; and (7) the court erred in denying plaintiff’s motion for new trial based on the jury’s verdict being against the manifest weight of the evidence.

In 1973, Winter Paper Stock Company, Inc., an Ohio corporation, contacted Maren, an Illinois corporation, about purchasing a shredding system to shred and bale scrap paper and cardboard. Winter Paper and Segal Schadel Company, an Ohio corporation, had been purchased by LaBoiteaux Recycling Co., an Ohio corporation, in 1973 and were divisions of LaBoiteaux Recycling Co. The LaBoiteaux Company owns 100% of the stock of the LaBoiteaux Recycling Co.

Maren constructed the shredder and the baler. Air Conveying, an Illinois corporation, designed the transition hood and duct work. Memphis Blow Pipe, a Tennessee corporation, manufactured the transition hood based on those designs. The original design and manufacture of the transition hood utilized a fixed plexiglass window over the access port.

In 1974, the entire system was delivered and installed at Winter Paper. Winter Paper used the system for about one year after which the machine was shut down. In 1976, the system was dismantled and sold to Love Box in Wichita, Kansas. Love Box was in the business of making cardboard boxes and the shredder was used on waste cardboard.

On September 15, 1978, plaintiff was working for Love Box on the shredding machine when he attempted to clear a jam by sticking his hand into the access port, which by now was covered by a moveable sheet of Plexiglass. Testimony at trial conflicted as to when the change occurred.

Testimony also conflicted on whether plaintiff shut the machine off prior to inserting his hand, with plaintiff testifying he did, and a co-employee testifying that plaintiff admitted to him after the accident that he did not. The testimony shows, however, that soon after plaintiff stuck his hand into the machine, the shredder blades engaged, causing serious injuries to plaintiff. An “on/off” switch next to the access port was subsequently installed by Love Box.

The case quickly became a battle of the experts. Maren blamed plaintiff for his own injuries, blamed others for modifying the access port window and blamed Love Box for failing to properly train and supervise its employees. Maren’s experts claimed that the system was properly designed: no interlocks were needed for a fixed window assembly. An interlocking device turns the system off in the event an access port window is opened. If a downstream user installed a moveable window, simple safety precautions could then be taken.

The LaBoiteaux defendants asserted during trial that they bought and sold the machine in the same condition — with a fixed access port window. Their experts, like Maren’s, were also critical of plaintiff’s conduct and Love Box’s.

Air Conveying’s expert testified that its fixed window design was not defective and that either the LaBoiteaux defendants or Love Box modified the access port window. No interlocking device was required for a fixed window assembly.

Plaintiff’s experts testified that Maren’s shredder was defective, inter, alia, because it failed to anticipate an access port window being present on the transition hood. The experts asserted that Maren should have built electronics into its system which would shut the system down in the event an access port window on the transition hood was opened. Even though Maren did not construct the transition hood, it could anticipate the use of one. Instructions in the owner’s manual should have instructed owners on how to install a protective mechanism such as an interlock device. The experts also opined that the system should have had better on-off indication lights which would be visible from the access port.

Plaintiff first alleges on appeal that the circuit court improperly applied the substantive law of Kansas where Illinois had the most significant relationship to the parties and the occurrence. We disagree.

In Ingersoll v. Klein (1970), 46 Ill. 2d 42, 45, 262 N.E.2d 593, our supreme court abandoned Illinois’ prior choice of law rule applicable to tort actions — the doctrine of lex loci delicti — and instead adopted the “most significant relationship” test of the Restatement (Second), Conflicts of Laws. The court stated: “the local law of the State where the injury occurred should determine the rights and liabilities of the parties, unless Illinois has a more significant relationship with the occurrence and with the parties, in which case, the law of Illinois should apply.” Ingersoll v. Klein (1970), 46 Ill. 2d 42, 45, 262 N.E.2d 593; accord Ferguson v. Kasbohm (1985), 131 Ill. App. 3d 424, 475 N.E.2d 984 (the law of the place of injury presumptively controls unless another State has a more significant relationship to the occurrence or parties).

The factors a court is to consider in determining which forum has the most significant relationship with the occurrence and the parties are: (1) the place where the injury occurred; (2) the place where the conduct occurred; (3) the domicile, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship of the parties is centered. (Ingersoll, 46 Ill. 2d at 47-48.) In determining the relative importance of the contacts, the forum is to consider the issues, the character of the tort and the relevant purposes of the tort rules of the interested States. Ingersoll, 46 Ill. 2d at 48.

In this case, the States have the following contacts:

Kansas: the place of injury, the place of plaintiff’s contributory negligence and/or assumption of the risk; the place of Love Box’s alleged negligence; the location of the machine in question at the time of the injury; the place of plaintiff’s residency; and Love Box’s State of incorporation.

Tennessee: the place where Memphis Blow Pipe manufactured the transition hood containing the access port into which plaintiff stuck his hand.

Ohio: the State of incorporation of Winter Paper, to whom the cardboard paper recycling assembly was originally sold and where Winter Paper allegedly modified the transition hood’s access port; the State of incorporation of the Laboiteaux Recycling Company (originally known as Segal Schadel Company, an Ohio corporation), a holding company which owns stock in Winter Paper; the place of incorporation of the Laboiteaux Company, which owns 100% of the stock in the Laboiteaux Recycling Company.

Illinois: the place of incorporation of Maren; the place where Maren designed, manufactured and sold the shredder and baler; the place of incorporation of Air Conveying Corporation; the place where Air Conveying designed the transition hood in question; the place where the LaBoiteaux Company had an office at the time of injury (but from which it conducted no business related to this litigation).

We find that plaintiff has failed to overcome the presumption that the substantive law of Kansas, the place where the injury occurred, governs in the instant case. Admittedly, Illinois has an interest in this case in seeing its substantive law apply. Illinois is Maren’s place of incorporation and the State where it designed, manufactured and sold the allegedly defective shredder system. Illinois is also Air Conveying’s State of incorporation and where it designed the transition hood through which plaintiff inserted his hand. Illinois has an interest in seeing its substantive laws applied to resident corporations sued over conduct arising within Illinois.

However, the contacts which Kansas has with the parties and the occurrence are at least as significant as those of Illinois and, arguably, even more so. The alleged improper modifications occurred in either Ohio or Kansas; plaintiff was injured and resided in Kansas; and other questioned conduct of Love Box, a Kansas corporation and Kansas employer, occurred in Kansas.

Thus, on balance, while Illinois’ contacts with the occurrence and the parties are not unimportant, we cannot say that Illinois has a more significant relationship than Kansas. The court correctly applied Kansas law.

Plaintiff has made the related argument that he was prejudiced by the court’s late determination that Kansas’ substantive law would apply. We find it difficult to understand how a party is prejudiced by the application of the correct substantive law. Moreover, choice of law issues frequently arise in actions such as this, which involve multiple States. At least 18 months prior to trial, when Love Box was dismissed based on Kansas’ worker’s compensation laws, plaintiff had notice that Kansas substantive law may apply to the remaining issues. Prior to trial, the LaBoiteaux defendants moved for a clarification on this issue, and the circuit court determined that Kansas law would indeed apply. Effective counsel would have been prepared for such a result, and even contemplated it when selecting a forum removed from where the injury took place. If plaintiff desired an earlier guarantee that Illinois substantive law would apply, he could have moved to clarify as Maren did. For these reasons, plaintiff’s claim of prejudice is unpersuasive.

Plaintiff next alleges on appeal that the circuit court erred in allowing defendants to file and maintain claims for contribution. Plaintiff asserts that, because Kansas only recognizes indemnity actions, and not contribution actions where comparative negligence is at issue, no substantive basis exists to support defendants’ contribution actions. Plaintiff accordingly asserts that these contribution actions should have been stricken.

We reject plaintiff’s argument. Plaintiff has not directed this court to a motion to strike the contribution claims of which he complains. If plaintiff believed the contribution claims to be improper, he should have taken the appropriate action. Having so failed, plaintiff’s argument is unpersuasive.

Additionally, plaintiff has failed to demonstrate on appeal how he sustained prejudice from the mere existence of the contribution claims. Illinois law holds that error is not “reversible unless it is demonstrated *** [to be] substantially prejudicial and affected the outcome of the trial.” (E.g., Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 416, 476 N.E.2d 1232.) Plaintiff has failed to articulate on appeal how the existence of these claims prejudiced his case. Plaintiff’s argument is thus rejected.

Plaintiff next asserts that the circuit court erred in allowing defendants to present evidence of Love Box’s negligence at trial. Plaintiff’s argument is a procedural one. He asserts that under Kansas law, he was entitled to prior notice that defendants would present evidence of Love Box’s negligence at trial.

An analysis of this issue must begin with Kansas’ comparative negligence statute, which provides in relevant part:

“(b) Where the comparative negligence of the parties in any such action is an issue, the jury shall return special verdicts, or in the absence of a jury, the court shall make special findings, determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants, and the entry of judgment shall be made by the court. No general verdict shall be returned by the jury.
(c) On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed to such death, personal injury, property damage or economic loss shall be joined as an additional party to the action.
(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of such parties causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.” Kan. Civ. Pro. Code Ann. §60 — 258a (Vernon Supp. 1992).

In Brown v. Keill (1978), 224 Kan. 195, 580 P.2d 867, the Kansas Supreme Court interpreted major portions of the Kansas comparative negligence statute. Three principal holdings emerged from that opinion.

First, “the concept of joint and several liability between joint tortfeasors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases.” Brown, 224 Kan. at 204, 580 P.2d at 874.

Second, “a defendant in a comparative negligence case [may] bring in other joint tort-feasors so their percentage of fault can be determined and their liability, if any, adjudged.” Further, even where this joined party has a valid defense, such as interspousal immunity or a covenant not to sue, “such a party’s fault should be considered in each case to determine the other defendant’s percentage of fault and liability, if any.” Brown, 224 Kan. at 206, 580 P.2d at 875-76.

Third, “the intent and purpose of the legislature in adopting K.S.A. 60 — 258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.” Thus, “the percentage of fault of one who is not or cannot be formally joined as a party under subsection (c) [is to] be considered under subsection (d) to arrive at the proportionate liability of the defendant or defendants^] ” Brown, 224 Kan. at 206-07, 580 P.2d at 876.

No party to this appeal readily disputes the principal holdings of Brown. The present issue on appeal, however, requires this court to go further than these holdings. The issue on appeal is whether any procedural conditions precedent exist prior to a defendant asserting at trial the negligence of a “phantom” defendant. To answer this issue, although not squarely addressed in Brown, the opinion provides persuasive guidance.

Brown was an automobile collision case in which Brown sued Keill for property damage to his Jaguar. Keill answered Brown’s complaint alleging that the driver of the Jaguar at the time of the accident, Brown’s son, was 90% at fault for causing the accident. Keill did not join the son in the action. Evidence of the son’s negligence was introduced at trial, and the jury found that the son was indeed 90% at fault. Keill appealed from a judgment requiring her to pay Brown 10% of the damages awarded. The final two paragraphs of the Brown opinion are informative as to the current issue on appeal:

“One final question must be answered in this case. Was the answer filed by the defendant and the evidence introduced thereon sufficient to obtain the determination of the percentage of fault attributable to the nonparty [the son]?
The defendant Keill in her answer alleged that the son who drove the Jaguar was a party whose negligence or fault contributed to cause the collision and damage to plaintiff’s vehicle. She alleged specific acts of negligence on the part of the son. There was sufficient testimony introduced at the trial to support these allegations and from which a percentage of fault could be determined. The son appeared at the trial and testified on behalf of the plaintiff. The plaintiff and defendant both understood the nature of the issue and introduced evidence on that issue. The trial court made findings as to the percentage of fault of each party involved in the collision, including that of the son. These findings adequately support the judgment entered thereon. We hold that the issue of the percentage of fault of the son was adequately raised in the pleadings, supported by substantial competent evidence and properly decided by the trier of fact.” Brown, 224 Kan. at 207, 580 P.2d at 876.

In this case, Love Box was identified in prior pleadings. Both Maren and the LaBoiteaux defendants impleaded Love Box and alleged acts of negligence on its part which contributed to plaintiff’s in-^. jury. Although Love Box was later dismissed, the claims put plaintiff on notice that Love Box’s fault was potentially an issue.

Further, prior to trial, Beldon Rich, a LaBoiteaux defense expert, testified for five pages in his discovery deposition regarding Love Box’s negligence. Beldon Rich testified at trial about Love Box’s negligence, and other evidence was introduced on this issue as well.

In the pretrial conference, Love Box was identified as a phantom defendant. Defendants pointed out that experts had given deposition testimony critical of Love Box. In fact, defendants referred to plaintiff’s own expert as possessing opinions regarding Love Box’s conduct. Counsel for Air Conveying also indicated that this type of evidence would be important during the instruction stage of the proceedings.

The facts of this case are similar to those presented in Brown. Love Box’s conduct was identified in pleadings, the subject of expert opinions during discovery, discussed during the pretrial conference and testified to during trial. Plaintiff’s allegation that he was without notice that defendants would- raise Love Box’s conduct at trial is not supported by the record. Moreover, plaintiff has directed this court to no Kansas case holding or court rule requiring a formal document to be filed declaring an intention to introduce phantom defendant evidence. Although section 60 — 258a(d) speaks in terms of requiring a formal motion, Brown did not require one, nor have subsequent cases (see Glenn v. Fleming (1987), 240 Kan. 724, 732 P.2d 750; Lester v. Magic Chef, Inc. (1982), 230 Kan. 643, 641 P.2d 353).

Finally, if plaintiff desired an earlier ruling which would have prohibited the introduction of “phantom” evidence, plaintiff could have easily filed a motion in limine to prevent the introduction of such evidence. Having not taken action to protect himself, plaintiff’s present complaint of surprise is not persuasive.

Plaintiff next alleges that the circuit court erred when it interjected into trial the privilege against self-incrimination during the cross-examination of plaintiff’s expert, Marvin Salzenstein. Plaintiff alleges that he suffered “irreparable” prejudice because the jury could infer criminal behavior, which negatively affected the credibility of an important witness.

Maren and the LaBoiteaux defendants respond that plaintiff misrepresents what occurred during trial. Rather than the court unilaterally injecting the issue at trial, the record reveals that it was interjected in an attempt by the court to ferret out the witness’ own objection to answering a properly posed question. Defendants allege that the court’s conduct fell within a trial court’s broad discretionary-power to control courtroom proceedings. We agree.

The alleged error occurred during the following questioning by Maren’s counsel:

“Q. My question is to you, sir, and would you please tell us what would represent 50 percent of your annual salary over the last two years?
* * *
THE COURT: Ordering the witness to answer the question.
THE WITNESS: I feel my salary is a very private thing, and I’m sorry, I can’t give that to you because the question as asked doesn’t really resolve [sic] around expert witnessing.
THE COURT: Just a moment.
MR. DOYLE: I move to strike the witness’ comment.
THE COURT: The witness’ comments are stricken. If you wish to refuse to answer the question on the grounds it might incriminate you, you may do that. That’s the Fifth Amendment, and you have that privilege not to answer a question if you consider it to be something that you shouldn’t answer. You have the Constitutional privilege of not answering a question. If you wish to do that the Court won’t take further action on it and we "will go on?
Do you take the Fifth Amendment?
THE WITNESS: Your Honor, I feel that’s such a private thing that yes, I would refuse to answer the question.
THE COURT: You refuse to answer the question on the grounds it might incriminate you?
THE WITNESS: Not that it is going to incriminate me.
THE COURT: That’s the only basis you can take the Fifth. Otherwise the Court is ordering you to answer the question.
THE WITNESS: What my salary is?
THE COURT: That’s correct, whatever it is.
* * *
THE COURT: Let the record show that the witness refused to answer the question.” (Emphasis added.)

As urged by Maren and the LaBoiteaux defendants, no error has occurred here. Contrary to plaintiff’s argument, the witness conveyed the reason why he refused to answer the question. The witness stated it was not because of criminal wrongdoing, but because the witness believed the answer to be personal in nature. Given the witness’ open-court statement regarding his motivation for refusing to answer the question, plaintiff cannot claim that the jury drew a negative inference where the witness negated that inference himself.

Plaintiff next asserts that the court erred in denying his attempt to amend his complaint against Maren to add a negligence count. Maren responds that the court properly exercised its discretion in denying the amendment.

The record reflects that plaintiff moved to amend his complaint following the close of evidence and the presentation of directed verdict motions. Maren objected to the motion, contending that if the motion were granted, it would have no opportunity to establish its own due care. The court agreed with Maren, noting that if an amendment were allowed, a mistrial would have to be declared to allow Maren to fully develop its due-care defense. In the interests of judicial economy, the court believed it better to just deny plaintiff’s desired amendment.

Plaintiff has failed to show an abuse of discretion on appeal. Plaintiff’s injury occurred in 1978, with plaintiff filing suit in 1980. Plaintiff’s suit against Maren alleged strict liability, and Maren planned its defense based on this theory. Trial commenced in mid-1989 on this theory as well. Had plaintiff earlier amended his complaint, Maren would have had the opportunity to demonstrate at trial that it acted with due care in designing the shredding machine. Plaintiff’s late attempt to amend denied Maren that opportunity. If the amendment were allowed, the jury would have deliberated on a theory which Maren did not have the full opportunity to defend. Thus, Maren would have suffered actual prejudice had the amendment been allowed. For these reasons, the amendment was properly rejected.

Plaintiff next asserts that the circuit court erred in instructing the jury with certain Kansas pattern jury instructions. Plaintiff directs this court to numerous instructions which he claims to be erroneous.

We agree with Maren and the LaBoiteaux defendants that plaintiff has waived review of his alleged instructional errors. At no point did plaintiff proffer alternative instructions. Plaintiff has therefore waived any claim of error. Harrington v. Rush-Presbyterian-St. Luke’s Hospital (1991), 210 Ill. App. 3d 183, 569 N.E.2d 15, appeal denied (1991), 141 Ill. 2d 540, 580 N.E.2d 114.

Defendant’s final argument is that the jury’s verdict was against the manifest weight of the evidence. We disagree.

A jury’s verdict on contested factual issues will not be disturbed on review unless it is against the manifest weight of the evidence. (Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 444, 511 N.E.2d 798, appeal denied (1987), 117 Ill. 2d 554, 517 N.E.2d 1096.) Where there is evidence in favor of the defendant which, if believed, supports the verdict in favor of defendant, the reviewing court should not set aside a jury determination. (Tedrowe, 158 Ill. App. 3d at 444.) “[T]he test is not whether the evidence could have supported a verdict for the movant if contrary inferences were drawn but whether a contrary verdict is clearly evident.” (Emphasis in original.) Tedrowe, 158 Ill. App. 3d at 444.

Plaintiff has failed to meet his burden on review. The jury’s verdict reflects its belief that plaintiff caused his own injury by inserting his hand through the window located on the transition hood without taking reasonable assurances that the machine in fact was off. Regarding Love Box’s fault, the jury’s verdict reflects one of two propositions. First, that Love Box altered the access window from a fixed to a moveable one without reasonably assuring that employees such as plaintiff did not inadvertently insert their hands while the shredder was operational. Second, even if Love Box did not alter the access window, it failed to take reasonable precautions to assure the safety of its employees. Ample evidence exists to support the findings of the jury. Accordingly, plaintiff’s manifest weight of the evidence argument is unpersuasive.

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

Judgment affirmed.

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


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN GRIFFIN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—2101
    Opinion filed April 13, 1993.
    Rehearing denied June 7, 1993.

      Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Ann L. Benedek, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Marvin Griffin, Duane Calhoun (Calhoun), and Brian Jackson (Jackson) were charged with eight counts of aggravated criminal sexual assault, two counts of criminal sexual assault, and two counts of aggravated kidnapping, for events occurring on June 13, 1988. The aggravated criminal sexual assault counts included two "violations each of the following subsections of section 12 — 14 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14): (1) that defendants committed a criminal sexual assault and caused great bodily harm to the victim (section 12 — 14(a)(2)); (2) that defendants, who were 17 years of age or older, committed a sexual penetration of a victim who was under the age of 13 (section 12 — 14(b)(1)); (3) that defendants committed a criminal sexual assault and threatened or endangered the life of the victim (section 12 — 14(a)(3)); and (4) that defendants committed a criminal sexual assault during the commission of another felony (section 12 — 14(a)(4)). Prior to trial, the State nolprossed the four alleged violations of sections 12 — 14(a)(3) and (a)(4) as well as the aggravated kidnapping counts. The causes of the three co-defendants were severed, and defendant was tried for two counts each of aggravated criminal sexual assault in violation of sections 12— 14(a)(2) and (b)(1), as well as for two counts of criminal sexual assault.

The State presented the following evidence at defendant’s trial. At approximately 10:30 p.m. on June 13, 1988, the complainant, M.G., a 12-year-old girl, testified that she went to Roy’s Food and Liquor Store in Robbins, Illinois, with her 12-year-old cousin R.H. in order to purchase a bottle of soda. After making the purchase, the girls began to walk toward their home about two blocks away when two young men called out to them. M.G. recognized that one of the boys was Calhoun, and R.H. saw that the other was Jackson; the girls knew the men from the Robbins Community Center. While the girls were talking with Calhoun and Jackson, they noticed defendant, whom neither of the girls knew, standing near a brown station wagon parked on the street.

After conversing for several minutes, the men asked the girls if they wanted a ride home, and when they refused and began to walk away, Calhoun and Jackson grabbed M.G.’s arms and threw her into the station wagon. M.G. was forced into the back seat with Calhoun, Jackson was in the front passenger seat, and defendant was driving. At the time, M.G. thought the men were “fooling around” and thus told them to “stop playing.”

Defying M.G.’s plea that she be taken home, defendant drove the station wagon to the Woodlawn projects approximately four blocks away. Calhoun tried to remove M.G.’s shirt, and when she resisted, he took off her shoes. M.G. then escaped from the vehicle, and the three men chased after her in the car. As they neared M.G., Calhoun alighted and pulled her back into the vehicle. Defendant then drove away and parked the station wagon on a side street near the Midlothian Turnpike, where Calhoun tore off M.G.’s shorts and underwear and, while striking her on the head, forced her to have vaginal intercourse with him. M.G. continued to resist Calhoun’s efforts, but he fought her off and continued to have intercourse with her.

When Calhoun finished sexually assaulting M.G., Jackson joined the two in the back seat and forced her to have intercourse with him as well. Although she again pleaded with the men to leave her alone, Calhoun told her to shut up and continued to pummel her on the head while Jackson was forcing her to have intercourse with him. Defendant remained in the front seat during the entire assault and, although she was screaming loudly, he did nothing to help her.

After Calhoun and Jackson finished sexually assaulting M.G., defendant drove the four toward her aunt’s home and stopped on Spaulding Avenue, where they allowed M.G. to leave. She was barefoot and crying, had bruises on her face, and had a lump on her head. Before she left, however, Calhoun told her that if she told anyone about the incident, he would “throw [her] in the canal and that he [would] kill [her] before he go [sic] to jail, because he wasn’t going to go jail for nothing [sic] like that.”

Meanwhile, R.H. had notified the police that M.G. had been abducted by three men. At about 12:30 a.m., R.H. was talking to Robbins police officer Charles Harris when she noticed the car into which M.G. had been forced pass by. Officer Harris pursued the vehicle driven by defendant, and by the time he apprehended it, M.G. had already been released. Eventually, both M.G. and R.H. arrived at the scene and identified Calhoun, Jackson and defendant as the abductors. M.G. told Officer Harris that she had been sexually assaulted by the men, and he placed them under arrest.

After defendant was taken into custody and read his Miranda warnings, he gave a statement to Assistant State’s Attorney Terry Takash which was later reduced to writing and read to the jury. In that statement, defendant admitted being in the presence of Calhoun and Jackson when M.G. was sexually assaulted. He stated, however, that he drove the car only while Jackson was sexually assaulting her; but he did admit that he knew that Calhoun had hit the victim and that he had heard him threaten her life. According to his statement, however, Jackson was driving the car when M.G. was released.

After the State rested, defendant presented the character testimony of Constance Moody, who stated that defendant was a peaceful, law-abiding citizen. Finally, defendant took the stand and related substantially the same story that he gave Takash shortly after his arrest. He added, however, that: (1) he thought Calhoun and Jackson were just playing until Jackson began to sexually assault M.G.; in other words, he did not realize that Calhoun was sexually assaulting her; (2) he exited the car while Calhoun was assaulting her; and (3) after Calhoun and Jackson finished sexually assaulting M.G., he got in the back seat with her so they would not hurt her any more.

The jury returned a single general verdict finding defendant guilty of aggravated criminal sexual assault and of criminal sexual assault. The jury’s aggravated criminal sexual assault verdict did not indicate upon which count it was based. After denying defendant’s post-trial motion and hearing argument in mitigation and aggravation, the court merged the two aggravated criminal sexual assault counts based on section 12 — 14(b)(1) (age) and the two criminal sexual assault counts into the aggravated criminal sexual assault counts based on section 12 — 14(a)(2) (bodily harm), and sentenced defendant to two concurrent terms of seven years in the custody of the Illinois Department of Corrections.

I

Defendant asserts that the evidence in this case was insufficient to convict him of aggravated criminal sexual assault and criminal sexual assault based on accomplice liability. In People v. Sutherland (1992), 155 Ill. 2d 1, our supreme court had occasion to summarize the standard of review which we must apply to sufficiency of evidence claims. The court stated:

“When faced with a challenge to the sufficiency of the evidence, the relevant inquiry for the reviewing court 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. [Citations.] The reviewing courts apply this standard regardless of whether the evidence is direct or circumstantial. [Citations.] This standard of review does not allow the appellate court to ‘substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of witnesses [citation].’ [Citation.] Therefore, [a reviewing] court will not reverse a criminal conviction unless the evidence is so ‘unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt [citation].’ [Citation.]” Sutherland, 155 Ill. 2d at 17.

A person is legally accountable for the conduct of another when, either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5—2(c); People v. J.H. (1990), 136 Ill. 2d 1, 17, 554 N.E.2d 961, 968.) Our supreme court, in interpreting this section, has endorsed the “common design” principle of accountability, as set forth in People v. Perez (1985), 108 Ill. 2d 70, 483 N.E.2d 250:

“ ‘Evidence that one voluntarily attaches himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain a conviction as a principal for a crime committed by another in furtherance of the venture. [Citation.] Proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group, and the fact that the criminal acts were not committed pursuant to a preconceived plan is not a defense if the evidence indicates involvement on the part of the accused in the spontaneous acts of the group. [Citation.]’ ” (Emphasis in original.) Perez, 108 Ill. 2d at 82-83, 483 N.E.2d at 255, quoting People v. Johnson (1966), 35 Ill. 2d 624, 626, 221 N.E.2d 662, 663.

While a defendant’s mere presence at the scene of a crime is insufficient to impose criminal liability (Johnson, 35 Ill. 2d at 626, 221 N.E.2d at 663; People v. Lovelady (1991), 221 Ill. App. 3d 829, 840, 582 N.E.2d 1217, 1227, appeal denied (1992), 143 Ill. 2d 644, 587 N.E.2d 1021), “[a]ctive participation has never been a requirement for the imposition of criminal liability upon the theory of accountability.” (People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190; accord People v. Johnson (1991), 220 Ill. App. 3d 550, 554, 581 N.E.2d 118, 122.) Instead, courts have looked to the following factors to determine if one can be held responsible for the criminal acts of another: (1) defendant’s presence at the scene of the crime without any negative reaction to it; (2) flight from the scene; (3) continued association with the perpetrators after the criminal act; (4) failure to report the incident; (5) acceptance of illegal proceeds from the actual perpetrators which the accused knew did not belong to that person; and (6) subsequent concealment or destruction of evidence. (See People v. Haynes (1991), 223 Ill. App. 3d 147, 150, 583 N.E.2d 1177, 1179; Johnson, 220 Ill. App. 3d at 554-55, 581 N.E.2d at 122.) Finally, it has been invariably held in this State that a defendant may be held accountable for aggravated criminal sexual assault when he is aware that the offense is being committed by another in his presence and does nothing to dissociate himself from the criminal activity, even if he does not actively participate in the crime. See, e.g., People v. Tyler (1979), 78 Ill. 2d 193, 196-97, 399 N.E.2d 975, 977; People v. Coleman (1991), 222 Ill. App. 3d 614, 623, 584 N.E.2d 330, 336, appeal denied (1992), 144 Ill. 2d 637, 591 N.E.2d 25; People v. Jones (1989), 184 Ill. App. 3d 412, 431, 541 N.E.2d 132, 143-44.

Applying these principles to the case at bar, it becomes inescapably clear that the jury’s finding that defendant was accountable for the actions of Calhoun and Jackson was eminently reasonable. The evidence, when viewed in the light most favorable to the State, not only establishes that defendant did not dissociate himself from the crime after he knew it was being committed in his presence, but also that: (1) he drove the station wagon during the entire incident, including when the victim escaped and was recaptured; (2) he fled the scene with the perpetrators; and (3) he made no attempt to report the crime after its commission. Accordingly, we find that the evidence presented against defendant was indisputably sufficient to support the jury’s guilty verdict.

II

Defendant next contends that he was deprived of his right to a fair trial because of certain comments made by the prosecutor during his rebuttal argument. Generally, a prosecutor is given wide latitude in closing argument (People v. Shum (1987), 117 Ill. 2d 317, 351, 512 N.E.2d 1183, 1191), and “[b]ecause the trial court is in the best position to determine the prejudicial effect, if any, of a remark made during argument, the character and scope of argument to the jury is left largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him.” (People v. Manley (1991), 222 Ill. App. 3d 896, 907, 584 N.E.2d 477, 486.) Moreover, “[i]n order for a remark to be deemed reversible error, the complained-of remark must have resulted in substantial prejudice to the accused, such that the verdict would have been different had it not been made.” (People v. Morgan (1991), 142 Ill. 2d 410, 453, 568 N.E.2d 755, 770, rev’d on other grounds (1992), 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222; People v. Malone (1991), 211 Ill. App. 3d 628, 636, 570 N.E.2d 584, 590, appeal denied (1991), 141 Ill. 2d 660, 584 N.E.2d 135.) In making that determination, we must consider the content of the language used, its relation to the evidence, and the effect of the argument on defendant’s right to a fair and impartial trial. Manley, 222 Ill. App. 3d at 908, 584 N.E.2d at 487.

We hold that defendant has waived any objection to the prosecutor’s rebuttal argument for the reason that he failed to include this allegation of error in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30.) At any rate, as we discuss below, we hold that any comments made by the prosecutor, even were we to consider them plain error, as defendant requests, would not amount to reversible error. See Morgan, 142 Ill. 2d at 456-57, 568 N.E.2d at 771.

Defendant first claims that the prosecutor impermissibly shifted the burden of proof to him by stating that he had the “same subpoena power that we do [and h]e didn’t bring [certain witnesses] in.” Although the State may not comment on a defendant’s failure to call witnesses (People v. Holman (1988), 103 Ill. 2d 133, 151, 469 N.E.2d 119, 128), such comments are permitted when they are made solely in response to defense counsel’s own reference to the State’s failure to call those witnesses. (People v. Richardson (1988), 123 Ill. 2d 322, 355, 528 N.E.2d 612, 625.) Here, defendant’s attorney expressly criticized the prosecutor during his closing argument for not calling certain witnesses and for failing to present expert testimony to support the State’s theory of the case, thus implying that the State was concealing material witnesses and withholding relevant evidence. Since the prosecutor was merely responding to such insinuations, we hold that no error was committed.

Defendant also asserts that the prosecutor improperly diluted the reasonable doubt standard (see People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432) by stating that “the burden in this case is beyond a reasonable doubt. It is not beyond one reasonable doubt.” We fail to see how this isolated comment could have prejudiced defendant; we therefore hold that any error committed in making this statement was harmless. See People v. Bell (1992), 234 Ill. App. 3d 631, 638, 600 N.E.2d 902, 908.

Defendant next complains that the prosecutor made the following remarks which were not based on the evidence: (1) that defendant actually penetrated the victim; (2) that Robbins’ police officers are not well trained; and (3) that the victim came from an impoverished family. It is axiomatic that a prosecutor may not make comments during argument which are unsupported by the evidence. (People v. Mullen (1990), 141 Ill. 2d 394, 405-06, 566 N.E.2d 222, 226-28.) Although we agree with defendant that these remarks were not based on the evidence or upon any reasonable inference therefrom, we find that the outcome would not have been different had the comments not been made. (See People v. Bivens (1987), 163 Ill. App. 3d 472, 484, 516 N.E.2d 738, 745, appeal denied (1987), 119 Ill. 2d 561, 522 N.E.2d 1248.) Accordingly, we hold that the improper comments were harmless beyond a reasonable doubt, especially in light of the fact that the jury was instructed to disregard any comments by either counsel during argument which were not based on the evidence. See Manley, 222 Ill. App. 3d at 910, 584 N.E.2d at 489.

Finally, defendant complains that the prosecutor impermissibly commented on defendant’s post-arrest silence when, in responding to defense counsel’s argument that defendant was too afraid of Calhoun and Jackson to dissociate from them once the criminality began, he stated:

“You know, you can talk about being afraid, you know. That is why as soon as he got out of the car and ran right up to Sergeant Harris. Here is Sergeant Harris: T am afraid of these guys, that is why I went along.’ No, he did not say that. Or [to] the State’s Attorney, right? That is why he told the State’s Attorney he was afraid. You never heard any evidence from the witness stand until yesterday that he was afraid.”

The United States Supreme Court has held that a prosecutor may not comment on a defendant’s post-arrest silence. (Doyle v. Ohio (1976), 326 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; accord People v. Pegram (1988), 124 Ill. 2d 166, 529 N.E.2d 506.) We find the above-quoted comment made by the prosecutor to be a violation of that principle for the reason that he expressly referred to defendant’s post-arrest failure to inform the police that he feared Calhoun and Jackson. Nonetheless, the Hlinois Supreme Court has recently held that a Doyle violation may be considered harmless error in certain circumstances. (People v. Patterson (1992), 154 Ill. 2d 414, 465-68.) In the case at bar, we find the error to be harmless beyond a reasonable doubt considering the towering evidence of defendant’s guilt and that the Doyle violation consisted of an isolated comment during the entire trial. See Bell, 234 Ill. App. 3d at 631, 600 N.E.2d at 908; People v. Frisby (1987), 160 Ill. App. 3d 19, 41, 512 N.E.2d 1337, 1351.

In sum, from a review of the entire record in the case at bar, by reason of the overwhelming evidence of defendant’s guilt, his failure to object to some of the improper comments of the prosecutor, and the instances where the trial court sustained defense counsel’s objections to the improper arguments, we are unwilling to say that the remarks of which complaint is made and to which defendant’s objections were overruled deprived him of a fair trial or were a factor in his conviction. See Bivens, 163 Ill. App. 3d at 484, 516 N.E.2d at 745; see also People v. Albanese (1984), 102 Ill. 2d 54, 82-83, 464 N.E.2d 206, 220 (cumulative effect of harmless errors cannot amount to reversible error for “[t]he whole can be no greater than the sum of its parts”); accord Manley, 222 Ill. App. 3d at 912, 584 N.E.2d at 490.

Ill

Defendant next asserts that several deficiencies in the jury instructions deprived him of his right to a fair trial. The State responds that defendant waived this issue because he did not object to the instructions at trial or include the alleged errors in his post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1129-30.) Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)) provides, however:

“Instructions in criminal cases shall be tendered, settled, and given in accordance with section 2 — 1107 of the Code of Civil Procedure, but substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (Emphasis added.) 134 Ill. 2d R. 451(c).

In People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, our supreme court explained the “substantial defects” exception to the waiver rule embodied in Supreme Court Rule 451(c):

“The interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure the fundamental fairness of the trial. [Citations.] Fundamental fairness includes, among other things, seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. [Citation.] The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. [Citations.] It is of the essence of a fair trial that ‘the jury not be permitted to deliberate a defendant’s guilt or innocence of the crime charged without being told the essential characteristics of that crime.’ [Citation.]” Ogunsola, 87 Ill. 2d at 222, 429 N.E.2d at 864.

Accord People v. Payne (1990), 194 Ill. App. 3d 238, 246-47, 550 N.E.2d 1214, 1219.

Since defendant’s allegations of error implicate the question of whether the jury was properly instructed on the elements of the crimes charged, we review the issues presented under Supreme Court Rule 451(c).

A

Defendant first claims that the issues instructions to the jury were improper because they were in a general form which combined in the disjunctive three different ways in which aggravated criminal sexual assault could be committed. Therefore, since the jury returned a general verdict of guilty, defendant asserts, it is possible that the jury was not unanimous on any one count of the offense, thus violating due process.

The jury instructions pertinent to defendant’s claim state as follows:

“To sustain the charges of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, committed an act of sexual penetration upon [M.G.]; and
Second That the act was committed by the use of force or threat of force; and
Third: That the defendant, or one for whose conduct he is responsible, caused bodily harm to [M.G.];
or
Third: That the defendant, or one for whose conduct he is legally responsible, acted in a manner as to threaten or endanger the life of [M.G.]:
* * *
[or]
First: That the defendant, or one for whose conduct he is responsible, committed an act of sexual penetration upon [M.G.]; and
Second: That the defendant, or one for whose conduct he is legally responsible, was 17 years of age or older and that [M.G.] was under the age when the act was committed.”

Defendant’s unanimity argument has been previously rejected by our courts. (People v. Smith (1991), 209 Ill. App. 3d 1043, 568 N.E.2d 482, appeal denied (1991), 139 Ill. 2d 603, 575 N.E.2d 921; People v. Travis (1988), 170 Ill. App. 3d 873, 525 N.E.2d 1137; appeal denied (1988), 122 Ill. 2d 590, 530 N.E.2d 260.) These cases stand for the proposition that “the jury need only be unanimous with respect to the defendant’s guilt or innocence, and need not be unanimous as to the alternate ways in which the crime could have been committed.” Smith, 209 Ill. App. 3d at 1059, 568 N.E.2d at 492.

The United States Supreme Court recently visited this issue in Schad v. Arizona (1991), 501 U.S. 555, 115 L. Ed. 2d 555, 111 S. Ct. 2491, where a jury convicted the defendant of first-degree murder after he was found with the murder victim’s vehicle. The prosecutor argued for a first-degree murder conviction on theories of both premeditated murder and felony murder, and the jury convicted defendant of first-degree murder in a general verdict without indicating on which theory it relied. Schad, 501 U.S. at 629, 115 L. Ed. 2d at 563-64, 111 S. Ct. at 2495 (plurality opinion).

The issue before the Court was whether the United States Constitution requires a jury to agree on a single theory of first-degree murder. Although the case produced no majority opinion, the four-member plurality, with Justice Scalia concurring in the judgment, concluded that generally, “when a single crime can be committed in various ways, jurors need not agree on the mode of commission.” (Schad, 501 U.S. at 649, 115 L. Ed. 2d at 577, 111 S. Ct. at 2506 (Scalia, J., concurring).) The plurality and the concurrence also agreed that some alternative courses of conduct are so different that the due process clause of the fourteenth amendment to the United States Constitution prohibits them from being defined as alternative means of committing a single offense. (Schad, 501 U.S. at 632, 649, 115 L. Ed. 2d at 566, 577, 111 S. Ct. at 2497-98, 2506 (plurality opinion).) The disagreement between the plurality and Justice Scalia centered around which due process test should be applied to determine when the State’s classification of crimes offends due process; the plurality adopted an evolving notion of due process, while Justice Scalia espoused his familiar historical approach. (Schad, 501 U.S. at 640-45, 651, 115 L. Ed. 2d 570-74, 577-78, 111 S. Ct. at 2500-03, 2507.) All five members of the plurality concluded, however, that there was nothing unconstitutional about offering a jury premeditated murder and felony murder as alternative methods of committing first-degree murder.

The rule to be derived from Schad is that a jury can properly return a single general verdict of guilty based on instructions which provide in the disjunctive alternative methods of committing a single crime, so long as those alternatives are not so divergent as to be constitutionally infirm. (Accord United States v. Harris (D.C. Cir. 1992), 959 F.2d 246, 255; Usher v. Gomez (N.D. Cal. 1991), 775 F. Supp. 1308, 1313.) In the case sub judice, we find that the instructions do not even approach a violation of that due process requirement. The instructions, which track section 12 — 14, state that defendant may be convicted of aggravated criminal sexual assault if the jury finds either that: (1) he committed a criminal sexual assault and inflicted bodily harm upon the victim; or (2) he committed a criminal sexual assault and threatened or endangered the life of the victim; or (3) he committed an act of sexual penetration, while 17 years or older, upon a victim who was under the age of 13. It is evident that these alternatives are merely three different methods of committing aggravated criminal sexual assault. The fact that the mens rea for the last method of committing the offense (strict liability) is different than the other two (general intent) is irrelevant, since the mental states of the two alternative methods of committing first-degree murder approved of in Schad, i.e., premeditated murder (specific intent) and felony murder (general intent), were also different. Accordingly, since the jury was not required to specify upon which of the alternative means of committing aggravated criminal sexual assault it based its verdict, we find no error in its return of a general verdict of guilty for that offense.

B

Defendant also argues that the jury instructions are fatally defective because they erroneously define the elements of the offense of aggravated criminal sexual assault under section 12 — 14(bXl). In considering the adequacy of instructions to a jury, our sole task is to determine whether they fully and fairly reflect the law. People v. Kolep (1963), 29 Ill. 2d 116, 125, 193 N.E.2d 753, 758; People v. Campos (1992), 227 Ill. App. 3d 434, 442, 592 N.E.2d 85, 90.

A person commits the offense of aggravated criminal sexual assault under section 12 — 14(b)(1) when “the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1).) The jury instruction pertaining to this count reads as follows:

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, committed an act of sexual penetration upon [M.G.]; and
Second: That the defendant, or one for whose conduct he is legally responsible, was 17 years of age or older and that [M.G.] was under 13 years of age when the act was committed." (Emphasis added).

Thus, it can be readily seen that in giving this instruction, the trial court inserted the phrase “or one for whose conduct he is legally responsible” into both elements of the offense of aggravated criminal sexual assault under section 12 — 14(b)(1). The Illinois pattern instruction on accountability was also given to the jury, and the committee note to that instruction states:

“When [the accountability] instruction is given, insert the phrase ‘or one for whose conduct he is legally responsible’ after the word ‘defendant’ in each proposition of the issues instruction for the offense charged. ***
Note, however, that for some offenses, it will be inappropriate to insert that phrase in some or all of the propositions. * * *
[Some] statutes would appear to require that particular conduct be committed by the defendant personally or that a status that is an element of the offense pertain to the defendant himself. Whenever accountability language is to be inserted in an issues instruction, caution should be exercised to assure that accountability language is not used in any proposition that involves such conduct or status.” (Emphasis added.) IPI Criminal 3d No. 5.03, Committee Note.

We hold that this is one instance where the accountability language should not have been inserted into the issues instruction because the offense of aggravated criminal sexual assault under section 12 — 14(b)(1) is one where the status of the person accused of penetrating the victim is particularly important. It is clear that the age of the one who committed the penetration (here, either Calhoun or Jackson), and not the age of the one vicariously responsible for that conduct (here, defendant), is relevant for purposes of section 12 — 14(b)(1). It cannot be an either/or proposition for the reason that if Calhoun and Jackson were under 17 years of age, then section 12 — 14(b)(1) simply was not violated, as under that section a 16-year-old individual does not commit an aggravated criminal sexual assault merely because he sexually penetrates one who is 12 years old.

It is hornbook law that one cannot be held vicariously liable for an act committed by others which did not constitute an offense at the time of its commission. (J. Decker, Illinois Criminal Law, Criminality of Others 102 (1986) (“The key element in accountability is affirmative conduct on the part of an accomplice that in some way aids, en-. courages, or incites another person to commit an illegal act”) (emphasis added); W. LaFave & A. Scott, 2 Substantive Criminal Law, Limits of Accomplice Liability §6.8, at 161 (1986) (A cannot be held liable for B’s burglary for B did not commit a burglary).) Consequently, if Calhoun and/or Jackson was under the age of 17, no illegal conduct occurred for which defendant could have been criminally responsible. The instruction given by the court, however, allowed the jury to convict defendant of aggravated criminal sexual assault under section 12 — 14(b)(1) even if it believed that he was over the age of 17, but that Calhoun and Jackson were under that age — an unsupportable proposition under section 12 — 14(b)(1). Accordingly, by inserting the Illinois pattern instruction phrase on accountability into the issues instruction for section 12 — 14(l)(b), the trial court improperly instructed the jury on this count of aggravated criminal sexual assault.

The State nevertheless contends that the error here was harmless because the evidence clearly supported the other count (bodily harm) of aggravated criminal sexual assault. The United States Supreme Court recently considered this issue in Griffin v. United States (1991), 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466. In that case, the Court considered whether a reversal of a conviction based on a general verdict is required when an instruction contains alternative methods of committing the same crime, and one of those alternative methods is unsupported by the evidence. The Court first recognized that under the rule espoused in Stromberg v. California (1931), 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532, where an instruction offers several alternative methods of committing a crime, one of which violates the United States Constitution, a conviction based on a general verdict must be reversed since it is impossible to determine upon which ground the jury relied. (Griffin, 502 U.S. at 53, 116 L. Ed. 2d at 378-79, 112 S. Ct. at 471.) It also noted that the “Stromberg rule” was expanded in Yates v. United States (1957), 354 U.S. 298, 1 L. Ed. 2d 1356, 77 S. Ct. 1064, to require a reversal of a conviction where an instruction contains several alternative ways of committing a crime, one of which is legally, though not necessarily constitutionally, infirm. (Griffin, 502 U.S. at 54-55, 116 L. Ed. 2d at 379-80, 112 S. Ct. at 472; see also People v. Simms (1991), 143 Ill. 2d 154, 171, 572 N.E.2d 947, 953 (adopting Yates).) The Court in Griffin, however, refused to expand the Stromberg rule any further, holding that a reversal of a general verdict of guilty is not required simply where the evidence is insufficient to support one of several alternative methods of committing the same crime given in an instruction to the jury. Griffin, 502 U.S. at 56, 116 L. Ed. 2d at 380-81,112 S. Ct. at 472.

After Griffin, then, a general guilty verdict based on an instruction which includes different methods of committing the same offense in the disjunctive is grounds for reversal only where one alternative is legally defective, i.e., fails to correctly state the law, and not where the flawed alternative is factually inadequate, i.e., where the evidence is insufficient to sustain that count. (See Walther v. Lone Star Gas Co. (5th Cir. 1992), 952 E2d 119, 126; Solomon v. Commissioner of Correctional Services (E.D.N.Y. 1992), 786 F. Supp. 218, 225.) Justice Scalia explained this distinction thus:

“[This rule] establishes a clear line that *** happens to *** make good sense. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of a crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying on a factually inadequate theory, since jurors are well equipped to analyze the evidence.” (Emphasis in original.) Griffin, 502 U.S. at 59, 116 L. Ed. 2d at 382-83, 112 S. Ct. at 474.

Applying Griffin to the case at bar, it is clear that the instructional error here is a legal, and not a factual, one, given that it incorrectly articulates the elements of aggravated criminal sexual assault under section 12 — 14(b)(1). Therefore, Griffin prohibits us from presuming that the jurors realized that the instruction on the count dealing with aggravated criminal sexual assault under section 12 — 14(b)(1) was legally incorrect, disregarded that count, and convicted the defendant under the legally adequate alternative (section 12— 14(aX2) — bodily harm).

Nevertheless, the State urges, looking solely at the flawed alternative aggravated criminal sexual assault instruction, as we must under Griffin, the error was harmless beyond a reasonable doubt since the evidence here would have clearly supported a conviction under an instruction which properly stated the law under section 12 — 14(b)(1). In doing so, the State argues that the facts plainly illustrate that both Calhoun and Jackson were 17 years of age or older at the time of the incident, thus rendering harmless the instructional error which would have allowed the jury to convict defendant if it believed that he, but not Calhoun or Jackson, was 17 years of age or older at the time of the offense.

We agree. The Illinois Supreme Court has invariably held that an error committed while instructing the jury does not justify reversal where the evidence is such that the outcome of the trial would not have been different had the jury been properly instructed. See, e.g., People v. Johnson (1992), 146 Ill. 2d 109, 137, 585 N.E.2d 78, 90 (“An error in a jury instruction is harmless if it is demonstrated that the result of the trial would not have been different if the proper instruction had been given”); People v. Pitsonbarger (1990), 142 Ill. 2d 353, 377, 568 N.E.2d 783, 792 (“Although it is not mandated in every case *** it is constitutionally permissible for a reviewing court to determine that given the facts of the individual case, the result would have been the same had the defect in the [jury] instructions not been present”); People v. Austin (1989), 133 Ill. 2d 118, 124, 549 N.E.2d 331, 333 (“[A]ny error in giving or refusing instructions will not justify a reversal when the evidence in support of the conviction is so clear and convincing that the jury’s verdict would not have been different”).

The only reference in the record to the ages of Calhoun and Jackson was elicited during the State’s direct examination of Officer Harris, and that colloquy went as follows:

“[Prosecutor:] Did you learn of the ages of these three individuals?
[Office Harris:] Yes.
[Prosecutor:] And how old are they?
[Officer Harris:] Seventeen, eighteen, and nineteen. Mr. Griffin is eighteen.
[Prosecutor:] Mr. Griffin was eighteen at the time?
[Officer Harris:] Yes, sir.
[Prosecutor:] And did you learn his date of birth?
[Officer Harris:] Yes, sir, 6-16-69.
[Prosecutor:] And the age of Mr. Calhoun?
[Officer Harris:] Mr. Calhoun is 17.
[Prosecutor:] And the age of Mr. Jackson?
[Officer Harris:] Mr. Jackson, 18.” (Emphasis added.)

Although Officer Harris used the present tense in testifying that “Mr. Calhoun is 17” and “Mr. Jackson, 18,” he was plainly referring to the ages of the assailants at the time of the offense. This is clear because Officer Harris first stated that “Mr. Griffin is eighteen” before clarifying that defendant was 18 at the time of the offense. Therefore, we find it indisputable that Officer Harris was referring also to the ages of Calhoun and Jackson at the time of the offense, even though he spoke in the present tense. This conclusion is indefensibly supported by the fact that since the trial was held on June 14, 1990, two years after the date of the offense (June 13, 1988), there is not even the likelihood that Officer Harris could have meant that defendant was 18 at the time of the offense and 19 at the time of the trial, thus eliminating the possibility that Officer Harris also meant that either Calhoun or Jackson was only 16 on the relevant date. Accordingly, we find that the evidence clearly established that both Calhoun and Jackson were 17 years of age or over at the time of the offense, and that, therefore, the court’s error in interjecting the accountability phrase into the issues instruction on section 12 — 14(l)(b) was harmless beyond a reasonable doubt.

C

Defendant finally contends that the jury instructions were fatally defective because they included one of the alternative aggravated criminal sexual assault counts which had been nol-prossed by the State. The State admits that the trial court erred in including the count based on section 12 — 14(a)(3) (commission of criminal sexual assault while threatening or endangering the life of the victim); nevertheless, it argues that the error was harmless beyond a reasonable doubt.

Our supreme court addressed this issue in People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136, where it explained:

“The instructions given to the jury included one instruction which describes the crime of murder in terms of subsection (a)(2) of section 9 — 1, and another which described murder in terms of subsection (a)(3). The defendant contends that since the indictment charged the defendant with murder as defined in subsection (a)(1), and the judge instructed the jury as to what constitutes murder under subsections (a)(2) and (a)(3), the jury was left with ‘no choice but to convict the defendant of an offense not charged by the indictment.’ In support of this contention the defendant cites cases which hold that an accused may not be charged with one crime and the jury instructed regarding a different crime. [Citations.] We find that the defendant here was charged with murder and convicted of that crime, and even if the variance did exist between the type of murder charged in the indictment and the types described in the instructions, it would not vitiate the conviction unless it was of such a character as to mislead the defendant in his defense or expose him to double jeopardy. [Citations.] There is no evidence in this case whatsoever that the defendant was misled in his defense, nor did counsel at any time during the proceedings request additional time, allege surprise, or claim that it was impossible for him to prepare a defense to the proof being offered. [Citation.]” Rosochacki, 41 Ill. 2d at 492, 244 N.E.2d at 141.

We find the case sub judice to be indistinguishable from Rosochacki; in fact, the error in that case was more egregious for the reason that the court instructed the jury on counts for which the defendant was not even indicted. Defendant here, like Rosochacki, made no objection to the inclusion of the extra count in the instruction, nor does he claim that he was surprised or misled by it. Furthermore, the evidence against defendant supporting the other alternative counts of aggravated criminal sexual assault was overwhelming; consequently, we hold that the trial court’s error in including in the jury instructions the nol-prossed count of aggravated criminal sexual assault was harmless beyond a reasonable doubt.

IV

Finally, defendant urges that we remand the cause for resentencing for the reason that the trial court improperly entered judgment and sentence based on two counts of aggravated criminal sexual assault (one for Calhoun’s assault and one for Jackson’s assault) although the jury returned only a single general verdict of guilty for that offense. The State agrees that judgment and sentence should not have been entered on two counts of aggravated criminal sexual assault, but it also argues that we should reinstate defendant’s conviction for criminal sexual assault and remand for resentencing accordingly because the trial court was required by statute to impose consecutive sentences for those two separate offenses.

We find the State’s arguments to be groundless. First, pursuant to Supreme Court Rule 604(a)(1), the State is not entitled to appeal the trial court’s decision to impose concurrent, as opposed to consecutive, sentences. (134 Ill. 2d R. 604(a)(1); People v. Kent (1976), 40 Ill. App. 3d 256, 350 N.E.2d 890.) Second, criminal sexual assault is clearly a lesser included offense of aggravated criminal sexual assault (People v. Coleman (1991), 212 Ill. App. 3d 997, 571 N.E.2d 1035); thus, the trial court properly merged those two offenses under both the one-crime-one-act rule as well as the lesser-included offense rule. (See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Finally, the statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a)), which the State claims required the trial court to impose consecutive sentences on defendant, did not become effective until July 1, 1988, 18 days after the commission of the offenses here, and it is by now well established that “[t]he constitutional prohibition against ex post facto laws prevents the punishment for an offense being increased by an amendatory act taking effect after the offense has been committed.” People v. Ostrowski (1920), 293 Ill. 91, 93, 127 N.E. 379, 380; accord People v. Bosley (1990), 197 Ill. App. 3d 215, 220, 553 N.E.2d 1187, 1191.

We also find, however, that it is unnecessary to remand the cause for resentencing. The trial judge sentenced defendant to two concurrent terms of seven years in the custody of the Illinois Department of Corrections; thus, remandment for resentencing is unnecessary even though we vacate one of defendant’s two aggravated criminal sexual assault convictions. People v. Donaldson (1982), 91 Ill. 2d 164, 170-71, 435 N.E.2d 477, 480.

For all of the foregoing reasons, we affirm defendant’s conviction on one count of aggravated criminal sexual assault, vacate his conviction for the other count of aggravated criminal sexual assault, and affirm his sentence of seven years in the custody of the Illinois Department of Corrections.

Affirmed in part; vacated in part.

McCORMICK, P.J., and HARTMAN, J., concur.

       Justice Souter also stated for the plurality that “[p]lainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Schad, 501 U.S. at 632, 115 L. Ed. 2d at 565, 111 S. Ct. at 2497.

       The accountability instruction given to the jury provides:
      “A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of [that] offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.” Illinois Pattern Jury Instructions, Criminal, No. 5.03 (3d ed. 1992) (hereinafter IPI Criminal 3d).

       This is different from the rule which does not require that the one who actually committed the crime be convicted before the accomplice may be held responsible, since the State must still prove that the offense was committed by the principal before the accomplice may be convicted. See Ill. Rev. Stat. 1991, ch. 38, par. 5 — 3.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBORAH GRIFFITH, Defendant (James P. Paese et al., Contemnors-Appellants).
    First District (1st Division)
    Nos. 1—91—2650, 1—91—2651 cons.
    Opinion filed May 10, 1993.

      Frederick F. Cohn, of Chicago (Jo-Anne F. Wolfson, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and George J. Arnold, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a lengthy jury trial in the circuit court of Cook County, Deborah Griffith was found guilty of abducting her daughter, Rebekah Ford, from the child’s father, Bruce Ford. Griffith was represented at trial by James P. Paese and Beryl Zerwer, whom the record indicates were then affiliated with the public defender’s office. Following argument of Griffith’s post-trial motion, the trial court found Paese and Zerwer in direct criminal contempt of court. Paese and Zerwer now appeal.

The record on appeal indicates the following facts. After the jury found Griffith guilty of child abduction, Paese and Zerwer sought a free transcript of proceedings from which to prepare a post-trial motion. The trial court denied this request; the record does not indicate why this request was denied. Paese and Zerwer filed a 109-point post-trial motion, supplemented with 200 pages of supporting documents. Argument on the post-trial motion lasted G1/2 hours. During a hearing on the motion, the trial court found the two defense attorneys guilty of contempt because they argued in the post-trial motion that the trial court was not impartial and acted as a “functionary of the State, or a third prosecutor.” After the trial court denied Paese’s and Zerwer’s motions to reconsider, they filed timely notices of appeal.

A court has the inherent power to punish as criminal contempt conduct that is calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity or to bring the administration of law into disrepute. (See People v. Ernest (1990), 141 Ill. 2d 412, 421, 566 N.E.2d 231, 235.) However, the summary nature of direct criminal contempt proceedings requires that this court be provided with a reviewable record from which this court may determine whether the trial court had jurisdiction to enter a contempt order. See People v. Tomashevsky (1971), 48 Ill. 2d 559, 564, 273 N.E.2d 398, 402.

In this case, there does not appear to be a written contempt order that fully, clearly and specifically explains the contumacious acts. Tomashevsky suggests both that a direct criminal contempt commitment cannot exist without a written order and that it is possible that a record could reflect oral findings and an order adequate to support the charge of direct contempt. (Tomashevsky, 48 Ill. 2d at 564-65, 273 N.E.2d at 402.) The record on appeal does contain the transcripts of proceedings where Paese and Zerwer were found in contempt. The record also contains an entry on the half-sheet indicating the finding of contempt. It is unclear whether this record is sufficient to sustain the charge under Tomashevsky.

Nevertheless, assuming arguendo that the record clearly and sufficiently indicates the acts upon which the charge of contempt was based, the finding of contempt must be reversed. Both elements of criminal contempt, an intent and an act, must be proven beyond a reasonable doubt. (City of Chicago v. Hart Building Corp. (1969), 116 Ill. App. 2d 39, 253 N.E.2d 496.) Intent in criminal contempt cases has been defined as a voluntary act by one who knows or who should reasonably know that the act is wrongful. (People v. Bertelle (1987), 164 Ill. App. 3d 831, 833, 518 N.E.2d 332, 334.) Where the conduct complained of is that of an attorney engaged in the representation of a litigant, the search for the essential elements of the crime of contempt must be made with full appreciation of the contentious role of trial counsel and his or her duty to zealously represent the client’s interests. (People v. Coulter (1992), 228 Ill. App. 3d 1014, 1021, 594 N.E.2d 1157, 1161.) A vigorous, independent bar is indispensable to our system of justice. (People v. Simac (1992), 236 Ill. App. 3d 1096, 1102.) Therefore, if a contemnor can show that the conduct was a good-faith attempt to represent his or her client without hindering the court’s functions or dignity, a finding of direct contempt will be reversed upon review. People v. Miller (1972), 51 Ill. 2d 76, 281 N.E.2d 292.

In this case, the trial court based its contempt order upon defendant’s post-trial motion, in which contemnors alleged, at the end of a list of rulings with which they disagreed, that the trial court engaged “in conduct to lead one to believe that the court was a functionary of the State or a third prosecutor.” The record indicates that the trial court interpreted this statement as stating that the trial judge was a functionary of the State and a third prosecutor. Whether this interpretation equates to proof beyond a reasonable doubt of contempt is questionable.

This court has considered on more than one occasion the allegation that a trial judge abandoned his or her judicial role and adopted the role of a prosecutor. (E.g., People v. Murray (1990), 194 Ill. App. 3d 653, 658, 551 N.E.2d 283, 287; People v. Hicks (1989), 183 Ill. App. 3d 636, 646, 539 N.E.2d 756, 762.) In Murray and Hicks, this court concluded that those claims did not warrant reversal. Yet those cases referred to earlier precedent where such claims were successful. Moreover, the language employed in cases such as Murray and Hicks suggests that the language employed by contemnors in defendant’s post-trial motion falls within the scope of hyperbole characteristic of our adversarial system of justice. This is not to say that attorneys are free to revile trial judges at will. However, the particular allegation here, which for better or worse has found its way into the legal lexicon, is not, by itself, proof beyond a reasonable doubt of intent to embarrass or hinder the court.

For all of the aforementioned reasons, we reverse the finding of contempt entered by the circuit court of Cook County.

Reversed.

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

       See People v. Griffith (1993), 249 Ill. App. 3d 1046.


author: JUSTICE BUCKLEY

text:
    S B L ASSOCIATES, Plaintiff-Appellant, v. THE VILLAGE OF ELK GROVE, Defendant-Appellee.
    First District (1st Division)
    No. 1—91—2787
    Opinion filed May 10, 1993.

      DiMonte & Lizak, of Park Ridge (Eugene A. DiMonte and G.F. Gallagher, of counsel), for appellant.
    Kurnik, Cipolla, Stephenson & Barasha, Ltd., of Arlington Heights (William W. Kurnik, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This action arises out of an annexation agreement containing a recapture provision and a settlement agreement entered into between plaintiff, SBL Associates, and defendant, the Village of Elk Grove. Plaintiff’s complaint asserted claims of breach of contract and specific performance, and sought declaratory relief and restitution for unjust enrichment against defendant. The circuit court ordered plaintiff’s complaint dismissed pursuant to section 2 — 615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615.) Plaintiff appeals the above dismissal order.

On May 6, 1975, plaintiff and defendant entered into an annexation agreement which contained a provision that plaintiff would “recapture” a percentage of the cost of installing water main lines, a sanitary sewer main line, lift stations and force main lines extending to the Upper Salt Creek Sewage Treatment Plant from property contiguous to defendant (the subject property), as well as certain paving and sidewalk construction. Paragraph 25 of the annexation agreement provides:

“VILLAGE and Developer acknowledge that the water main lines to be constructed *** and the lift station, force main, and sanitary sewer main lines to be constructed *** shall serve and benefit not only the Tract, but also properties which may become a part of the VILLAGE. The VILLAGE agrees to enter into a recapture agreement with Developer providing that: (1) The cost of such public improvements *** shall be apportioned over the Tract and such other properties as may be determined by the opinion of the engineers of Developer and VILLAGE, respectively, to benefit, over a period not to exceed ten (10) years based on its expected use. ***
* * *
Payments recovered by the VILLAGE from the owners of the benefitting properties which are annexed to the VILLAGE on a date subsequent to the expiration of the ten (10) year period herein shall inure to the exclusive benefit of VILLAGE ***.”

The annexation agreement was to expire, by its own terms, on May 6, 1985. An amendment to the agreement was entered into on November 12, 1975, which extended the annexation agreement “for a term of ten (10) years from the date of its execution,” which would be November 12, 1985. The second amendment to the annexation agreement was executed on June 14, 1983, extending it to May 6, 1990. In connection "with its obligations, undertaken in consideration of the annexation and recapture rights granted by defendant, plaintiff provided defendant with an irrevocable letter of credit .in the amount of $35,000 for the completion of certain public improvement work on the subject property.

In mid-1987, after the execution of the third amendment to the annexation agreement, a dispute arose between plaintiff and defendant concerning the adequacy of the Nerge Road construction. Defendant threatened to call upon the plaintiff’s letter of credit. After negotiations, the dispute was resolved and a settlement agreement was entered into through letters from each party’s attorney. Plaintiff agreed to reimburse defendant up to $37,000 as needed to make the Nerge Road repairs. In consideration of the $37,000, defendant agreed to forbear from claiming against the letter of credit, to undertake certain repairs itself which were originally contemplated under the letter of credit, to waive the bond requirement on certain work and to extend a zoning classification for two years. Additionally, defendant agreed that it would

“not object to an extension proposal by SBL pertaining to the Recapture Agreement presently in existence, provided the Village will not guarantee the payment of said recapture fees nor litigate any third parties for the failure to pay same.”

In that letter dated October 30, 1987, defendant undertook to repair Nerge Road and make direct payments to outside contractors with reimbursement from plaintiff, not to exceed $37,000. Defendant also made other repairs at its own expense. Defendant did not require that plaintiff immediately deposit a cash bond or other letter of credit for certain sidewalks, and also agreed to extend the time for certain residential development “for an additional two year period.” Plaintiffs attorney responded to the above in a letter, approximately one month later, which stated “SBL is in agreement with the terms of your letter of October 30, 1987 regarding the Nerge Road matter.” Plaintiff then prepared a fourth amendment to the original annexation agreement which incorporated an unlimited period for recapture. The document was never formally executed.

On March 6, 1990, defendant, through its assistant manager, Gary E. Parrin, unequivocally communicated its intention to cease recognition of the recapture provision in the annexation agreement as extended. Thereafter, plaintiff filed its complaint for declaratory relief and for contract remedies. Then, defendant filed a motion to dismiss the complaint, arguing that plaintiff failed to present a justiciable claim and that the acts of the village attorney in agreeing to the recapture provision and extension were ultra vires. The circuit court granted defendant’s motion to dismiss, finding that the conduct and the memoranda of the parties did not support plaintiff’s allegations and did not constitute a contract. Later, the circuit court granted plaintiff’s motion for reconsideration because it had improperly gone beyond the scope of the complaint’s legal sufficiency in dismissing the complaint. The court allowed plaintiff to file an amended complaint. The first-amended complaint set forth an additional and alternative count for restitution.

Again, defendant filed a section 2 — 615 motion to dismiss the amended complaint and also filed three affirmative defenses. The circuit court dismissed the amended complaint and granted plaintiff up to and including August 1, 1991, to file a second-amended complaint. However, on July 31, 1991, the circuit court, pursuant to a stipulation signed by all parties wherein plaintiff elected to stand on its first-amended complaint, entered an agreed order dismissing plaintiff’s case with prejudice and making the order appealable. On August 16, 1991, plaintiff filed its notice of appeal.

A motion to dismiss pursuant to section 2—615 (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) admits all well-pled facts as true and any reasonable inferences which could be drawn from the facts. (Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 113, 371 N.E.2d 373, 375.) When reviewing a dismissal of a complaint based on a section 2 — 615 motion to dismiss, a reviewing court must determine whether the complaint’s allegations, viewed in a light most favorable to the plaintiff, set forth a cause of action for which relief may be granted. (Luethi v. Yellow Cab Co. (1985), 136 Ill. App. 3d 829, 833, 483 N.E.2d 1058, 1060.) Conclusions of law or conclusions of fact which are unsupported by specific factual allegations are not admitted. Greenberg v. United Airlines (1990), 206 Ill. App. 3d 40, 44, 563 N.E.2d 1031, 1035.

A plaintiff seeking a declaratory judgment must show that such relief would be based on an actual justiciable controversy. Actual controversy has been interpreted to mean a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375, 362 N.E.2d 298, 300.) If a plaintiff’s rights would be infringed, and thereby be adversely affected, only if some future possibility in fact occurs or does not occur, then the right in question is speculative and a court cannot enter a declaratory judgment. (Township High School District 203 v. Village of Northfield (1989), 184 Ill. App. 3d 367, 373, 540 N.E.2d 365, 369, citing Berg v. City of Chicago (1968), 97 Ill. App. 2d 410, 417, 240 N.E.2d 344, 348.) Therefore, if a plaintiff’s interests would be adversely affected only in the event of some future occurrence or nonoccurrence, the declaratory action should be dismissed. Township High School, 184 Ill. App. 3d at 373, 540 N.E.2d at 369, citing State Farm Mutual Automobile Insurance Co. v. Morris (1961), 29 Ill. App. 2d 451, 460, 173 N.E.2d 590, 594.

In the case at bar, plaintiff filed for declaratory relief based on a recapture provision. In order for the recapture provision to become operative, the subject property must be annexed, which had not yet been done. Plaintiff requested that the circuit court decide whether the recapture period was extended. Until the subject property is annexed, a decision on the above issue would be premature. The instant case is similar to Greene v. Village of Reynolds (1976), 35 Ill. App. 3d 998, 342 N.E.2d 834, wherein the appellate court held that a challenge to the validity of a sewer user fee was not justiciable because the land owner had not yet connected to the sewer. In Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 433 N.E.2d 1098, the appellate court found that a request to construe the terms of a trust agreement was premature because the operation of the provision at issue was contingent upon a beneficiary dying without issue.

In the absence of allegations showing an actual controversy, the circuit court need not entertain a suit to declare the rights of parties as to a state of facts which may never arise. (In re Estate of Rosenbrock (1977), 54 Ill. App. 3d 165, 369 N.E.2d 398.) Since a reviewing court can affirm a lower court’s decision on any grounds which are based upon the record, regardless of whether those grounds were relied upon by the court or whether the court’s reasoning was correct, we uphold the circuit court’s dismissal of the declaratory action based on the fact that no controversy currently exists. See Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 142, 478 N.E.2d 384, 389.

Notwithstanding our above holding that plaintiff’s action must fail because no actual controversy currently exists, we review the remaining issues presented to this court. Plaintiff also argues that the circuit court committed reversible error by considering defendant’s affirmative defenses in determining defendant’s section 2 — 615 motion. In support of this argument, plaintiff cites to the record, alleging that the circuit court relied upon these defenses in reaching its outcome. The record, however, is devoid of any indication that the circuit court considered defendant’s affirmative defenses. Instead, it is clear from the record that the circuit court considered all the well-pled facts in the complaint, along with the reasonable inferences which could be drawn therefrom. Therefore, plaintiff’s argument is meritless.

Next, plaintiff argues that a recapture agreement was entered into by virtue of a series of letters to and from it and defendant. Plaintiff substantially relies on language in a letter from defendant’s attorney which states “the Village will not object to an extension proposal by SBL pertaining to the Recapture Agreement presently in existence.” Plaintiff’s theory is that through these letters, plaintiff and defendant entered into an agreement to extend the period of recapture for a “reasonable time.” In order for a contract to exist between parties, there must be a meeting of the minds or mutual assent as to the terms of the contract. (Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 313-14, 515 N.E.2d 61, 65.) Moreover, the essential terms of the contract must be definite and enforceable in order for a contract to be enforceable. Midland Hotel, 118 Ill. 2d at 314, 515 N.E.2d at 65.

We disagree that a specific contract dealing with plaintiff’s alleged recapture rights was ever entered into by the parties. We find that the above letters constitute the settlement agreement between the parties, one of the provisions of which dealt with a recapture proposal. Reviewing the letters in a light most favorable to plaintiff, the relied-upon language only promises that defendant will not object to plaintiff submitting a proposal for an extension of the recapture terms for defendant’s consideration. The letters do not evidence a meeting of the minds between the two parties in regard to a definite extension of the recapture agreement. Therefore, we find that no recapture agreement as defined by plaintiff existed.

Plaintiff also argues that the circuit court erred in finding that defendant’s attorney engaged in ultra vires conduct in contracting with plaintiff for a new recapture agreement. Since we found above that no recapture agreement existed as defined by plaintiff, defendant’s attorney could not have engaged in ultra vires conduct because he never entered into a contract with plaintiff. Accordingly, this issue is moot.

Finally, count IV of plaintiff’s amended complaint attempts to state a cause of action for restitution based on the $37,000 it paid to defendant pursuant to the settlement agreement. As a general rule, a plaintiff cannot pursue quasi-contractual claims where there is an express contract between the parties. (Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 1032, 560 N.E.2d 942, 948, citing Industrial Lift Truck Service Corp. v. Mitsubishi International Corp. (1982), 104 Ill. App. 3d 357, 360, 432 N.E.2d 999, 1002.) This rule prevents a party who made a bad business decision from asking a court to restore his expectations. (Prodromos, 202 Ill. App. 3d at 1032, 560 N.E.2d at 948.) In the case at bar, however, both parties agreed that a settlement agreement was entered into between them. Since a contract already exists between the parties, there is no need for the court to imply a contract in law. In fact, a plaintiff is not entitled to compensation on the ground of restitution if he received from defendant that which it was agreed between them that the other should give in return. We, therefore, find that the circuit court properly dismissed plaintiff’s restitution claim.

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

Affirmed.

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