author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC M. LOFERSKI, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—0663
    Opinion filed September 17, 1992.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Winston & Strawn, both of Chicago (Timothy P. O’Con-nor, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Steven M. Mondry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court;

Defendant, Eric Loferski, was convicted of delivering more than 15 grams of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)) following a jury trial in the circuit court of Cook County. Defendant was sentenced to the penitentiary for a term of seven years.

Defendant appeals, contending; (1) the State failed to prove his guilt beyond a reasonable doubt. Defendant also contends he was denied a fair trial because: (2) the trial judge erroneously admitted into evidence (a) a photograph of defendant taken on the night of his arrest, and (b) certain hearsay statements; and (3) the prosecutor made improper and prejudicial remarks during closing argument. Defendant lastly contends (4) his sentence was excessive.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On June 13, 1988, defendant and James Krask were jointly indicted on one count of delivery of more than 15 grams of a controlled substance. Prior to trial, Krask pled guilty and was sentenced to 10 years in the penitentiary.

Defendant’s trial began on January 10, 1990. The State’s first witness was Agent Joseph Errico. Agent Errico was a member of the Cook County sheriff’s police on assignment to the Northeastern Metropolitan Enforcement Group. The group is composed of State, county, and local police. Its purpose is to make undercover purchases of narcotics.

Agent Errico testified essentially as follows. On April 19, 1988, an informant introduced Errico to James Krask, who sold a gram of cocaine to Errico for $80. Approximately two hours later, Krask sold 21 grams of cocaine to Errico for $750. Each sale was made in Krask’s apartment in Calumet City. The furniture in the apartment was arranged and not in disarray. Errico did not notice a telephone in Krask’s apartment. At no time during these two sales did Krask mention defendant. Krask gave Errico a pager number and told Errico that he could contact him at any time for additional purchases.

At approximately 5 p.m. on April 20, Agent Errico telephoned Krask’s pager number. Krask telephoned Agent Errico approximately five minutes later. They agreed that Krask would sell eight ounces of cocaine to Errico for $7,500. Krask instructed Errico to meet Krask at 8 p.m. that night at his apartment. At no time during this telephone conversation did Krask mention defendant. Errico then met with his fellow agents to plan their surveillance of the transaction.

At approximately 8 p.m., Agent Errico arrived at Krask’s apartment. Errico noticed that Krask’s furniture was arranged in the same manner as the previous day. Krask opened his apartment door and walked into the hallway. A few moments later, defendant joined them in the hallway and Krask introduced defendant to Errico. Krask told Errico that he would obtain the cocaine, give it to defendant, who would give it to Errico. Defendant stood silently next to Krask during these instructions.

The three of them walked outside of the apartment building. Defendant walked away from them. Krask asked Agent Errico to show him the purchase money. They walked to and entered Errico’s automobile, where Errico showed Krask $7,500 in $100 bills. Krask counted the money and returned it to Errico. Krask told Errico that Krask would retrieve the cocaine and that Errico should page him in one half hour. Krask would then tell Errico where they would meet. After Krask left the car, Agent Errico telephoned his supervisor and reported the arrangement.

Errico paged Krask at the agreed time. When Krask telephoned Errico, he instructed Errico to meet him at the corner of Warren and Wentworth Streets in Calumet City. Errico immediately notified his surveillance team.

Agent Errico arrived at the rendezvous at approximately 9:10 p.m. A few minutes later, Krask arrived and entered Errico’s car on the front passenger side. Krask told Errico to drive one block down the street, where Krask’s tan Plymouth Duster was parked. Defendant was waiting inside the car with the cocaine. Errico initially refused to comply; he was concerned about leaving the protective vision of the surveillance team. Krask then exited Errico’s car and walked in the direction of his car. A few minutes later, Krask returned and repeated his instructions. Errico complied this time because he knew that Krask could not get the cocaine.

With Krask sitting next to him in the front passenger seat, Agent Errico drove for a block and stopped parallel to the parked Duster. Defendant was sitting in the driver’s seat of the Duster. Krask told Errico that defendant had the cocaine and that defendant would enter Errico’s car and give the cocaine to him. Krask exited Errico’s car and entered the Duster; defendant exited the Duster and entered the front passenger side of Errico’s car. Defendant held a brown paper bag.

Krask drove off in the Duster. After defendant entered Errico’s car, Errico parked across the street. Defendant gave Errico the brown paper bag. Errico opened the bag and saw a clear plastic bag, which contained another clear plastic bag, which in turn contained a white powdery substance. In return, Errico gave defendant the $7,500 that he showed to Krask.

As defendant was counting the money, Errico signalled the surveillance team to apprehend the suspects. Seconds later, team members arrested defendant, who was still sitting in the front passenger seat of Errico’s car with the purchase money in his hands. Defendant was in Errico’s car for a total of one minute. Krask was arrested a short time later.

The State’s next witness was Agent Fred Guerra. Agent Guerra was a member of the Cook County sheriff’s police on assignment to the Northeastern Metropolitan Enforcement Group. On the night of April 20, 1988, Guerra was a member of the surveillance team that covered Errico’s narcotics purchase. Guerra was parked approximately one block away from Errico; when Errico moved his car, Guerra followed. Guerra observed the actions of Krask, defendant, and Errico; Guerra’s testimony essentially corroborated that of Er-rico. When Guerra and the other agents arrested defendant, Guerra saw the purchase money in defendant’s hands.

The State’s last witness was Nancy Hall, who was a chemist with the Illinois State Police. Hall opined that the white powdery substance that Errico purchased on the night of defendant’s arrest contained cocaine.

Defendant was the sole witness for the defense. He testified essentially as follows. Defendant was 17 years old at the time of his arrest and was a junior in high school. He and James Krask’s younger brother, Dan, were friends. Defendant and Dan were approximately four years younger than James Krask.

During school on the morning of April 20, 1988, Dan asked defendant to help him and Krask move some items into Krask’s apartment. Defendant agreed. That afternoon, they went to the Krask household, where Krask and his girl friend packed.

Later that night, the four of them drove to Krask’s apartment. Krask drove his Plymouth Duster, accompanied by defendant and Dan; Krask’s girl friend drove another car. One of the items for Krask’s apartment was a large console television. The apartment’s existing furnishings were put in disarray as a result of the move. In return for their assistance, Krask bought beer for the group, which defendant drank.

The group arrived at Krask’s apartment between 6 and 7 p.m. A short time after the group’s arrival, two men arrived whom defendant did not know. Approximately 20 minutes later, Agent Errico arrived. Krask answered the door and spoke with Errico in the doorway. Defendant was sitting in a chair. Defendant was not part of the conversation; he did not know the subject of their conversation.

Krask turned and told defendant to come with him. By that time, defendant had been in the apartment for nearly two hours and had drunk four or five beers. Defendant rose from his chair, put on his coat, and walked past Krask and Errico, who were closely facing each other while talking. When the three of them reached the apartment building entrance, defendant walked straight to Krask’s Duster and remained there. Krask and Errico stood at the building entrance and continued to speak. When they exited the building, they walked away together. Defendant did not follow them and did not hear what they said.

Krask soon returned alone. He gave defendant the keys to his girl friend’s car and told defendant to follow him. Defendant followed Krask to a house in Dyer, Indiana. Krask parked in the driveway and defendant parked behind him. Krask instructed defendant to wait and then walked out of defendant’s sight. Krask returned in approximately 15 minutes and instructed defendant to follow him back to Calumet City. Defendant did not see Krask holding a brown paper bag or any other package.

Defendant followed Krask back to Calumet City. Krask stopped and used a public telephone. Defendant stayed in the car he was driving. He did not know to whom Krask spoke; he did not ask. After his telephone call, Krask instructed defendant to trade cars and follow him. So defendant, driving the Duster, followed Krask to a residential neighborhood. Krask motioned defendant to pull over and defendant complied. Krask told defendant to wait in the car and then drove away. Krask returned on foot a few minutes later. He paced back and forth on the sidewalk and appeared to look for someone or something.

Krask then appeared in a car driven by Agent Errico. Krask exited Errico’s car and went to defendant. Krask instructed defendant to take the package that was underneath the driver’s seat, enter Erri-co’s car, and give Errico the package. Defendant retrieved the package and exited the Duster. As soon as Krask entered the Duster, he drove away.

Defendant entered Errico’s car and gave him the package. Defendant did not know the contents of the package; he did not look inside of it or squeeze it or otherwise feel it to test for its contents. Errico handed defendant money, which defendant accepted. However, defendant did not count it. Defendant was apprehended by the surveillance team seconds after he entered Errico’s car. By the time the team appeared, defendant no longer held the money. After defendant was apprehended, Errico apologized to defendant for involving him in the arrest and told defendant that the team “just wanted to get him [Krask].”

Defendant also testified that he was not a drug dealer. He never suspected Krask of wrongdoing; he assumed that Krask had a reason for whatever he did. Defendant believed that he was doing Krask a favor. Also, he no longer maintains a friendly relationship with any member of the Krask family.

The jury convicted defendant as charged. At the sentencing hearing, the trial judge denied defendant’s post-trial motion. At the close of the hearing, the trial judge sentenced defendant to a prison term of seven years. Defendant appeals.

Opinion

I

Defendant claims that the evidence failed to establish guilt beyond a reasonable doubt. Where a criminal conviction is challenged based on insufficient evidence, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.

To sustain a conviction for the offense of unlawful delivery of 15 or more grams of cocaine, the State must prove beyond a reasonable doubt that the defendant knowingly delivered, or possessed with the intention to deliver, 15 or more grams of any substance containing cocaine. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) The offense is committed when one delivers cocaine to another. The material element of the offense is delivery. People v. Zambetta (1985), 132 Ill. App. 3d 740, 749, 477 N.E.2d 821, 828; People v. Kadlec (1974), 21 Ill. App. 3d 289, 296, 313 N.E.2d 522, 527-28.

Proof that the defendant “knowingly” delivered a controlled substance is an essential element of the offense. The element of knowledge is rarely susceptible of direct proof. However, it may be proved by evidence of defendant’s statements or conduct, from which the fact finder may fairly infer defendant’s knowledge. (People v. Ernst (1991), 219 Ill. App. 3d 51, 57, 579 N.E.2d 376, 381; People v. Chicon (1977), 55 Ill. App. 3d 100, 105, 370 N.E.2d 605, 609.) Knowledge is a question of fact to be determined by the fact finder. People v. Monroe (1975), 32 Ill. App. 3d 482, 489, 335 N.E.2d 783, 789, affd (1977), 66 Ill. 2d 317, 362 N.E.2d 295.

We conclude that the record in the present case contains sufficient proof that defendant knowingly delivered the cocaine. The evidence boils down to the testimony of Agents Errico and Guerra against that of defendant. Thus, the issue of defendant’s guilt was one of credibility for the fact finder. (See People v. Guido (1962), 25 Ill. 2d 204, 208, 184 N.E.2d 858, 860.) The testimony of a single witness, including that of a law enforcement officer, if positive and credible, is sufficient to convict, even if it is contradicted by the defendant. Guido, 25 Ill. 2d at 208-09, 184 N.E.2d at 860.

Although defendant denied knowledge of the cocaine, the jury was not required to accept his exculpatory testimony. (Ernst, 219 Ill. App. 3d at 57, 579 N.E.2d at 381.) After carefully reviewing the entire record, we cannot say that the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

II

Defendant next claims that he was denied a fair trial. He contends the trial judge erroneously admitted into evidence (A) a photograph of him taken on the night of his arrest, and (B) certain hearsay statements.

A

During the State’s direct examination of Agent Errico, the following colloquy occurred:

“[Prosecutor]: Now, you testified, or you identified Mr. Lo-ferski here in court today previously, is that right?
[Agent Errico]: That’s correct.
Q. On the date of April 20th, 1988 did Mr. Loferski look any different at that time than he does here today?
A. Yes, he does.
Q. How does he look different today then he did then?
A. He looks a lot better now. He’s clean-cut now.
[Defense counsel]: Objection.
THE COURT: Sustained. Stricken.
[Prosecutor]: I’m showing you what I have previously marked as People’s Exhibit Number 3 for Identification. For the record, Judge, I did show this to counsel.
[Defense counsel]: All right.
[Prosecutor]: Do you recognize what that is?
A. Yes, that’s the Defendant, Eric Loferski.
Q. This is a photograph?
A. Yes, it is.
Q. And when was that photograph taken?
A. On the night of his arrest.
Q. That would be on April 20th, 1988?
A. That’s correct.
Q. Does that photograph truly and accurately portray the Defendant, Eric Loferski, as he appeared on the night of April 20th, 1988?
A. That’s correct.
[Prosecutor]: Thank you. May I have a few moments, Judge? THE COURT: Sure.”

The record further shows that the photograph was subsequently admitted into evidence and was with the the jury during its deliberations.

1

The record shows that defendant failed to object at trial and to include the objection in his post-trial motion. Ordinarily, we would deem the issue waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) However, Supreme Court Rule 615(a) provides an exception to the waiver rule where there has been “plain error.” (134 Ill. 2d R. 615(a).) Under this rule, we may elect to consider errors that have not been properly preserved for review where the evidence at trial is closely balanced or where the errors were of such magnitude that a defendant was denied a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 250-51, 430 N.E.2d 1091, 1093-94.

Where the evidence at trial is closely balanced, our supreme court has explained as follows:

“The main purpose of the plain error rule, if the evidence is closely balanced, is to protect against the ‘possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved’ for appellate review. [Citation.] In cases where the evidence is closely balanced, the probability that a defendant’s conviction was caused by even a minor trial error is greatly enhanced. Therefore, in those cases, the court will invoke the plain error rule so that it can determine whether an error, which was not objected to at trial and in post-trial motions, raises doubt as to the validity of the jury’s verdict.” People v. Mullen (1990), 141 Ill. 2d 394, 402, 566 N.E.2d 222, 226, quoting People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233, 238.

In the case at bar, we conclude that the evidence, while sufficient to prove guilt, was closely balanced. We recited the evidence at length. As we noted earlier, the evidence boiled down to the testimony of Agents Errico and Guerra against that of defendant. Thus, the issue of defendant’s guilt was one of credibility. Defendant claims that he was prejudiced by the admission of his photograph, taken on the night of his arrest. If the evidence was improperly admitted, the jury’s verdict may have been a result of this alleged error despite defendant’s failure to preserve it. Therefore, we will consider the issue. See People v. Darnell (1990), 214 Ill. App. 3d 345, 360, 573 N.E.2d 1252, 1262; People v. Andino (1981), 99 Ill. App. 3d 952, 955, 425 N.E.2d 1333, 1335.

2

Defendant argues that the photograph taken of him on the night of his arrest was irrelevant and prejudicial. The primary requirements for the admissibility of a photograph are those of relevancy and accuracy. Focusing on the relevancy requirement, the photograph must be identified by a witness as a portrayal of certain facts relevant to the issue. (People v. Holman (1984), 103 Ill. 2d 133, 149, 469 N.E.2d 119, 127, quoting People v. Thomas (1967), 88 Ill. App. 2d 71, 80-81, 232 N.E.2d 259, 264; People v. Donaldson (1962), 24 Ill. 2d 315, 318, 181 N.E.2d 131, 133.) Evidence is relevant, and thus admissible, if it tends to prove a material fact at issue. (People v. Eyler (1989), 133 Ill. 2d 173, 217, 549 N.E.2d 268, 288; People v. Free (1983), 94 Ill. 2d 378, 413, 447 N.E.2d 218, 235.) Relevant photographs are admissible, in the trial court’s discretion, to prove a person’s identity. Also, the admission of a photograph into evidence does not necessarily become cumulative merely because there is also oral testimony on the same subject. People v. Myles (1985), 131 Ill. App. 3d 1034, 1042, 476 N.E.2d 1333, 1339.

Applying these principles to the case at bar, we conclude that the photograph was properly admitted into evidence. It is true that Agent Errico had identified defendant earlier in his testimony. However, the photograph was relevant to show defendant’s identity and it corroborated Agent Errico’s identification of defendant on the night of his arrest. The photograph was not admitted to prove defendant’s bad moral character, thus distinguishing this case from People v. Kannapes (1990), 208 Ill. App. 3d 400, 567 N.E.2d 377. We cannot say that the trial judge exceeded his discretion in admitting the photograph into evidence.

B

Defendant contends the trial court improperly admitted into evidence three alleged hearsay statements. The first statement occurred outside of Krask’s apartment. Krask explained to Agent Errico that Krask would obtain the cocaine, give it to defendant, and defendant would give it to Errico. The second statement occurred when Krask entered Errico’s car prior to the transaction. Krask explained to Er-rico that defendant was waiting in the tan Duster with the cocaine. The third statement occurred when Errico and Krask parked alongside Krask’s car. Krask explained to Errico that defendant had the cocaine and would enter Errico’s car and give the cocaine to Errico.

The acts and deliberations of a coconspirator made in furtherance of the conspiracy are admissible against a defendant even when they are made outside of the defendant’s presence. To avail itself of the co-conspirator’s exception to the rule against hearsay, the State need not charge the crime of conspiracy, nor indict and try all of the coconspirators. Rather, the State need only establish a prima facie case through independent evidence that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach another end by criminal means. The existence of an agreement, which is the essence of a conspiracy, need not be proved by direct evidence, but may be inferred from all of the surrounding facts and circumstances, including the acts and declarations of the defendant. People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1099, 526 N.E.2d 508, 515, cited in People v. Brock (1989), 184 Ill. App. 3d 595, 599, 540 N.E.2d 554, 556-57.

After carefully reviewing the record, we conclude that the record contains sufficient evidence to establish a prima facie case of conspiracy so as to allow the admission of Krask’s statements. The record contains evidence that defendant stood silently next to Krask during Krask’s explanation of the conspiracy to Agent Errico. Defendant followed Krask by car at night to several locations. Defendant parked and waited in the tan Duster for Krask. Defendant: then entered Errico’s car and gave Errico a brown paper bag containing cocaine. Errico gave defendant $7,500, and defendant was counting the money when he was arrested. This conduct of defendant constituted sufficient evidence to establish a prima facie case of conspiracy.

Further, it is clear that Krask made all three statements to Errico to explain the details of the transaction. It is settled that “statements of one co-conspirator accompanying or explaining the common design are admissible against all co-conspirators.” (People v. Miller (1984), 128 Ill. App. 3d 574, 586, 470 N.E.2d 1222, 1230.) We cannot say that the trial court exceeded its discretion in admitting Krask’s statements.

Ill

Defendant contends he was denied a fair trial also because the two trial prosecutors made improper and prejudicial remarks during closing argument. The remarks are as follows:

“Ladies and gentlemen, I don’t have to tell you what a cancer poses [sic] in our society today. The contents in that bag hurt many families, they have ruined many lives. The war on drugs we all know about. The war on drugs is a national war. We hear that every day. However, the war on drugs affects all of us today at the local level. We’re all hurt to an extent, we’re all affected, just by our very presence in this courtroom. It has consequences. If you want to play with this stuff, if you want to get involved with this stuff, you have to pay the consequences. Those are the rules. Some get caught and some don’t.
* * *
You have a unique opportunity today. You hear a lot of people talking about the war on drugs and how it affects each of us. You have a unique opportunity today; you have an opportunity to say, enough is enough, enough is enough. We are sick and tired of drugs. We are sick and tired of people that deal drugs. Nothing good comes from dealing drugs. That’s a fact. You have a chance today to say something about that.
* * *
Ladies and gentlemen, *** there is no doubt that drugs are a problem in our society. We all know it. And they are running rampant. Drug dealers are selling drugs like cocaine every single day, all around us. I think we all recognize that. And there is a war on drugs now that exists. And Officers like Joe Errico and Fred Guerra are both a part of that war. They are trying to do something about it. That’s what their job is.
* * *
Ladies and gentlemen, you have an opportunity here, you have a chance here to make him accountable for his actions. You have a chance to say, we are not going to take this, we are not going to believe these stories when you get caught right in the act. You’ve got a chance to make Eric Loferski responsible and accountable for what he did, and send a message to drug dealers like him, who attempt to insulate themselves.”

We note that defendant failed to object to these remarks during the argument and also failed to include the objection in his post-trial motion. However, as with the previous issue, we will consider this issue under the plain error doctrine. 134 Ill. 2d R. 615(a); Mullen, 141 Ill. 2d at 402, 566 N.E.2d at 226.

A reviewing court is reluctant to set aside a verdict based on remarks made during closing argument and does so only where the remarks are clearly prejudicial. In determining whether the remarks are prejudicial, a court must refer to the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. People v. Franklin (1976), 42 Ill. App. 3d 408, 421, 355 N.E.2d 634, 645.

Further, it is “axiomatic that [in closing argument] the prosecutor must confine himself to facts introduced in evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom.” (People v. Vasquez (1972), 8 Ill. App. 3d 679, 681, 291 N.E.2d 5, 7.) It is settled that “a prosecutor may reflect unfavorably upon an accused and indulge in invective in urging the fearless administration of the law, based upon the evidence and legitimate inferences drawn from it.” (People v. Hovanec (1979), 76 Ill. App. 3d 401, 424, 394 N.E.2d 1340, 1356.) However, “it is improper for a prosecutor to say anything in argument the only effect of which will be to inflame the passion or arouse the prejudice of the jury against a defendant without shedding any light on the paramount question presented to the jury, to-wit, its decision.” People v. Lurry (1979), 77 Ill. App. 3d 108, 114, 395 N.E.2d 1234, 1238.

Defendant argues that the prosecutors’ repeated references to the “war on drugs” were not based on the evidence or reasonable inferences drawn from it. Rather, defendant argues, the remarks were calculated to inflame the passion or arouse the prejudice of the jury.

Defendant’s argument has some merit. It is difficult to see how our nation’s “war on drugs” had anything to do with the evidence presented at this particular trial on the question of the guilt or innocence of this particular defendant. Defendant cites United States v. Solivan (6th Cir. 1991), 937 F.2d 1146, in support of his argument. The Solivan court was presented with a prosecutor’s closing argument that invoked the “war on drugs” with remarks that were far more restrained than those in the present case. The Solivan court cited several decisions of the Federal courts of appeal that held essentially that “prosecutors are not ‘at liberty to substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem.’ ” 937 F.2d at 1152, quoting United States v. Hawkins (D.C. Cir. 1978), 595 F.2d 751, 754.

The Solivan court held: “It is error for a prosecutor to direct the jurors’ desires to end a social problem toward convicting a particular defendant.” (937 F.2d at 1153.) In the context of the “war on drugs,’ the court reasoned as follows:

“Here, defendant’s constitutional right to a fair trial was violated because the appeal to the community conscience in the context of the War on Drugs prejudicially impacted on her. The fear surrounding the War on Drugs undoubtedly influenced the jury by diverting its attention away from its task to weigh the evidence and submit a reasoned decision finding defendam guilty or innocent of the crimes with which she was charged The substance of the statements made by the prosecutor in this case were designed, both in purpose and effect, to arouse pas sion and prejudice and to inflame the jurors’ emotions regard ing the War on Drugs by urging them to send a message and strike a blow to the drug problem.
This nation faces a variety of social problems with which all citizens are daily confronted. The drug problem is one of the most compelling and devastating problems faced by this nation today. This Court is acutely aware of the nature and extent of the drug problem. However, government prosecutors are not at liberty to urge jurors to convict defendants as blows to the drug problem faced by society or specifically, within their communities, or to send messages to all drug dealers. Such appeals are extremely prejudicial and harmful to the constitutional right to a fair trial.” (937 F.2d at 1153-54.)

The court reversed the conviction and remanded the cause for a new trial. Solivan, 937 F.2d at 1157.

We additionally note that the American Bar Association considers such prosecutorial remarks to be unprofessional conduct. Section 3— 5.8(d) of the Association’s Standards for Criminal Justice states as follows:

“The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” (1 A.B.A., Standards for Criminal Justice §3 — 5.8(d) (2d ed. 1980).)

The section commentary specifically states: “Predictions as to the effect of an acquittal on lawlessness in the community also go beyond the scope of the issues in the trial and are to be avoided.” 1 A.B.A. Standards for Criminal Justice §3 — 5.8, at 3-90 (2d ed. 1980).

Although the analysis in these authorities is persuasive, the Solivan decision does not control our decision in the present case. Because lower Federal courts do not exercise appellate jurisdiction over State courts, decisions of lower Federal courts are not binding on State courts. People v. Brisbon (1989), 129 Ill. 2d 200, 224, 544 N.E.2d 297, 308; People v. O’Neal (1976), 40 Ill. App. 3d 448, 450, 352 N.E.2d 282, 283.

The analysis in Solivan and the American Bar Association’s professional standards do not reflect Illinois law. Our supreme court has consistently held that a prosecutor’s rhetoric during closing argument that urges a conviction to fight societal evils is permissible argument concerning the evil results of crime and the fearless administration of the law. (E.g., People v. Harris (1989), 129 Ill. 2d 123, 159-60, 544 N.E.2d 357, 372-73; Siebert v. People (1892), 143 Ill. 571, 590, 32 N.E. 431, 436.) This court has held likewise. (E.g., People v. Finley (1978), 63 Ill. App. 3d 95, 101-02, 379 N.E.2d 645, 649.) Indeed, Illinois courts have specifically held that a prosecutor’s argument to the jury about the evils of drug abuse and the need to punish drug dealers fell within this category. People v. Lopez (1957), 10 Ill. 2d 237, 240-41, 139 N.E.2d 724, 725-26; People v. Hunter (1984), 124 Ill. App. 3d 516, 534-35, 464 N.E.2d 659, 675; People v. Bianchi (1981), 96 Ill. App. 3d 113, 117, 420 N.E.2d 1187, 1191.

One commentator has noted that Illinois and Texas are “leading examples” of States whose courts permit the “virtually unlimited” use of such rhetoric. (Comment, Prosecutors’ Deterrence Appeals in State Criminal Trials, 48 U. Chi. L. Rev. 681, 688 (1981).) Further, cases that permit these remarks generally fail to articulate a rationale beyond the bald statement that such rhetoric has always been accepted. 48 U. Chi. L. Rev. at 691.

It is the duty of this court to follow the decisions of our supreme court. (People v. Palmer (1986), 141 Ill. App. 3d 234, 238, 490 N.E.2d 154, 158; O’Neal, 40 Ill. App. 3d at 450, 352 N.E.2d at 283.) Our supreme court and this court have repeatedly upheld remarks similar to those made by the prosecutors in the case at bar. Thus, we must conclude that the prosecutor’s remarks during closing argument concerning the “war on drugs” were not erroneous.

We note defendant’s argument that the cumulative effect of the preceding trial errors prejudiced him and requires a new trial. However, we have not accepted any of defendant’s allegations of error. Therefore, we likewise cannot accept this argument. See People v. Albanese (1984), 102 Ill. 2d 54, 82-83, 464 N.E.2d 206, 220.

IV

Defendant lastly claims that his seven-year prison sentence was excessive. Defendant points, inter alia, to his age and lack of prior convictions.

Supreme Court Rule 615(b)(4) authorizes this court to reduce a criminal sentence. (134 Ill. 2d R. 615(b)(4).) However, a sentencing decision is a matter of judicial discretion, and so long as the sentence is within the statutory limits, we hesitate to exercise our power to reduce it absent a finding that the trial court exceeded its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) In other words, a “rebuttable presumption arises that the sentence imposed was proper and is only overcome by an affirmative showing that the sentence imposed varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines.” Peo ple v. Jenkins (1984), 128 Ill. App. 3d 853, 857, 471 N.E.2d 647, 650, citing People v. Gallardo (1983), 112 Ill. App. 3d 764, 775-76, 445 N.E.2d 1213,1222.

After reviewing the record in the present case, we cannot say that the trial court exceeded its discretion. The seven-year sentence was on the very low end of the statutory range, which begins at six years. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3); ch. 56½, par. 1401(a).) The record shows that the trial judge considered many different factors before imposing sentence. We hold that defendant’s prison sentence of seven years was well within the discretion of the trial court.

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

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MATTHEW C. GERWICK, Defendant-Appellee.
    Fourth District
    No. 4—92—0078
    Opinion filed October 22, 1992.
    Rehearing denied November 19, 1992.

      Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Steven Skelton, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The State appeals from an order of the circuit court of McLean County granting the petition of defendant Matthew C. Gerwick to rescind the statutory summary suspension of his driver’s license. On November 15, 1991, defendant filed his petition alleging he was not properly placed under arrest for an offense defined in section 11— 501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501) and that the arresting officer did not have reasonable grounds to believe that the defendant was driving or in actual physical control of a motor vehicle while under the influence of alcohol and/or other drugs, or a combination thereof. The trial court found:

“The evidence presented establishes clearly that the arresting officer did not have reasonable suspicion that the defendant was violating the law because the officer knew at the time of the stop that the movement through the ‘S’ curve was made safely and hence did not violate Ch. 95¾, Section 11 — 709.”

The only issue raised on appeal is whether this finding is a proper basis for granting the rescission of the summary suspension and is, therefore, against the manifest weight of the evidence. We reverse.

The parties have prepared and submitted an agreed statement of facts. Although it is referred to as a bystander’s report and it recites that it is certified by the trial judge, there is in fact no certification by the judge on the document, nor has the judge signed it. In the absence of some designation on the document that the judge certified the facts recited therein to be accurate, the document may not be considered a bystander’s report. (134 Ill. 2d R. 323(c); see Feldman v. Munizzo (1957), 16 Ill. App. 2d 58, 63, 147 N.E.2d 427, 430-31.) However, even without certification, we may accept the parties’ agreed statement of facts as a substitution for a report of proceedings. (134 Ill. 2d R. 323(d).) The agreed statement of facts summarizes the testimony of defendant and the arresting officer, Paul Williams of the Bloomington, Illinois, police department.

Defendant testified that just prior to being stopped by Williams he was going to or on his way home from a jobsite in response to a request by his employer. He further testified that shortly before 1 a.m. on November 10, 1991, he was driving a truck in the City of Bloomington and was eastbound on Olive Street as he approached what defendant’s counsel referred to as “S” curves. The defendant described the curves as being fairly tight curves which were marked with solid double yellow lines dividing the two lanes of traffic which travel in opposite directions. In describing the particular section of road involved, he stated that it was difficult to keep a vehicle in its marked lane through the curves. He then stated that it was very possible that his truck did cross the yellow lines, but he could not be certain. He did, however, state that there was no oncoming traffic in the lane into which he may have crossed and further that there was nothing unsafe about the maneuver.

The defendant further testified that he was stopped a few blocks away on Jackson Street and that, after a discussion with Williams and after taking some sobriety tests, he was arrested for driving while under the influence of alcohol, driving while license revoked, driving in violation of a restricted driving permit (RDP), failure to wear a seat belt, and improper lane usage. Ill. Rev. Stat. 1989, ch. 951/2, pars. 11-501(a)(2), 6-303(a), 6-113(e), 12-603.1(a), 11 — 709(a).

On cross-examination, defendant admitted to driving across the solid yellow centerlines. He further testified that there were no parked cars or other obstructions which made it necessary for him to leave his lane.

Williams testified that on November 10, 1991, at approximately 12:50 a.m., he observed a truck parked in a lot adjacent to the Sunnyside Housing complex. Approximately three minutes later he saw the same truck traveling eastbound on Olive Street. At this time Williams was also traveling on Olive Street in the same direction as the truck with no other vehicles between his vehicle and the truck, which was ahead of him. He further testified that as the truck began to negotiate the curves it left its lane by straddling the double yellow lines. The truck continued to straddle the centerlines with both driver’s side wheels completely in the lane for oncoming traffic throughout the entire length of the curve until it straightened out after the curve, a distance of 200 to 300 feet. Williams also testified that at no time was he aware of any obstruction which made it necessary for the defendant to leave his lane. Williams described the curves as having one lane in each direction with street parking being prohibited immediately before, through and immediately after the curves. He further testified that there were in fact no vehicles parked on the curves on this particular morning to force the truck to go outside of its lane of traffic. There was no testimony from either party that the movements of defendant’s vehicle in negotiating the “S” curve were not made safely. In fact, the evidence established that there was no oncoming traffic or danger to persons or property.

Williams testified that, once through the curves, he activated his emergency lights in an effort to stop the truck. It was several blocks later that the truck did stop on Jackson Street. After stopping the truck, he asked the driver for his driver’s license and was handed an RDP which allowed the driver to drive for work purposes between the hours of 6:30 a.m. and 6:30 p.m. Mondays through Saturdays. Based upon his further observations and investigation, he placed the defendant under arrest for the hereinabove referred to offenses and issued him a uniform traffic citation for each.

On cross-examination, Williams testified that the driving through the curves which he witnessed did not pose any immediate hazard to oncoming traffic as there was none in the curves at the point when the defendant was straddling the centerlines. Officer Williams further testified on cross-examination about his observations made after the defendant’s vehicle had been stopped.

The trial court found there was no oncoming traffic or danger to persons or property and at the time the officer stopped defendant he knew the “S” curve had been negotiated safely and there was no violation of section 11 — 709 of the Code. The trial court concluded that because defendant was charged with improper lane usage, a violation of section 11 — 709 “and that this is the only violation justifying the traffic stop,” defendant met his burden to prove the stop was unreasonable because “there was no testimony from either party that defendant’s movements in negotiating the ‘S’ curve were not made safely.”

The argument made by the State is that the officer had sufficient, articulable reason to justify the stop. It is within this context that the issue is raised of whether the trial court’s finding was correct.

In People v. Adams (1992), 225 Ill. App. 3d 815, 817-18, 587 N.E.2d 592, 594-95, this court stated as follows:

“A proceeding to rescind a summary suspension is a civil action in which the burden of proof rests on the motorist. (People v. Orth (1988), 124 Ill. 2d 326, 337-38, 530 N.E.2d 210, 215.) The trial court’s determination of whether the motorist’s evidence constitutes a prima facie case for rescission will be overturned on appeal only if the finding is against the manifest weight of the evidence. (Orth, 124 Ill. 2d at 341, 530 N.E.2d at 217.) ‘The trial court’s decision will be considered to be against the manifest weight of the evidence if, after a review of the evidence, it is clearly evident that the conclusion opposite to the one reached by the trial court was the proper disposition.’ Rogers v. City of Jerseyville (1990), 196 Ill. App. 3d 136, 142, 552 N.E.2d 1314, 1319. * * *
Even though no probable cause exists to arrest an individual, a police officer may make an investigatory stop if the officer’s decision is based on specific and articulable facts and the rational inferences therefrom which warrant an investigative intrusion. (Tylkowski, 171 Ill. App. 3d at 98-99, 524 N.E.2d at 1116; People v. Moffitt (1985), 138 Ill. App. 3d 106, 111, 485 N.E.2d 513, 517.) Stopping a motor vehicle and detaining its occupants without a warrant is a seizure which would be prohibited by the fourth and fourteenth amendments of the United States Constitution unless there is at least an articulable and reasonable suspicion that an occupant or the vehicle is subject to seizure for a violation of the law. (Delaware v. Prouse (1979), 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401.) The test is not what the officer should have seen, but whether, viewed objectively, the ‘totality of the facts and circumstances known to the officer at the time of the stop would warrant a reasonable and prudent person to believe a crime had been committed.’ (People v. Assenato (1989), 186 Ill. App. 3d 331, 337, 542 N.E.2d 457, 460, cert. denied (1990), 493 U.S. 1027, 107 L. Ed. 2d 754, 110 S. Ct. 736; see also Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14; Tylkowski, 171 Ill. App. 3d at 98, 524 N.E.2d at 1116.)”

The issue is not whether the officer had probable cause to issue a citation against defendant for violating section 11 — 709(a). As we stated in Adams, the test is whether the “ ‘totality of the facts and circumstances known to the officer at the time of the stop would warrant a reasonable and prudent person to believe a crime had been committed.’ ” (Adams, 225 Ill. App. 3d at 818, 587 N.E.2d at 595, quoting Assenato, 186 Ill. App. 3d at 337, 542 N.E.2d at 460.) That the officer may have initially mischarged the defendant is not the test.

Defendant admits he crossed the yellow centerlines. His admission along with the testimony of Williams establishes a sufficient basis for the stop.

In Village of Lincolnshire v. DiSpirito (1990), 195 Ill. App. 3d 859, 865, 552 N.E.2d 1238, 1241, the court found:

“The fact that the defendant may later demonstrate a valid reason for what reasonably appears to be illegal conduct may affect his ultimate liability for that offense, but it should not affect the validity of the police officer’s investigatory stop.”

The reasoning adopted by the DiSpirito court is sound. The facts and circumstances known to the officer at the time of the stop did warrant him, as a reasonable and prudent person, to believe a traffic violation had been committed. The trial court’s determination was in error.

For the foregoing reasons, the order of the circuit court of McLean County is reversed.

Reversed.

GREEN, P.J., and LUND, J., concur.


text:
    NATIONAL BANK OF BLOOMINGTON, Guardian of the Estate of Tiffany Wallace, a Minor, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—92—0210
    Opinion filed September 30, 1992.

      Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris and Thomas M. Harris, of counsel), and Culbertson, Culbertson & Allen, of Dela-van, for appellants.
    Karen L. Kendall and Brad A. Elward, both of Heyl, Royster, Voelker & Allen, of Peoria, and Adrian E. Harless, of Heyl, Royster, Voelker & Allen, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On January 30, 1983, 14-month-old Tiffany Wallace was severely burned on her lower legs when she, left unattended, crawled into the bathroom sink of her home and turned on the hot water. On April 17, 1984, the National Bank of Bloomington, as guardian of the estate of Tiffany Wallace, and Jerry Wallace, Tiffany’s father, filed a two-count complaint against defendant Westinghouse Electric Corporation for negligence arising out of the manufacture and design of the water heater installed in the Wallace home. In November 1991, Westinghouse moved for summary judgment, which was granted by the circuit court on February 3, 1992. Plaintiff now appeals that decision and we affirm.

The thermostat on the electric water heater in the Wallace home was preset at 150 degrees Fahrenheit by the manufacturer and did not have an external knob or dial to change that temperature. Tiffany’s mother, Christine, stated she had never experienced anything unusual with the hot water system in the house other than that the water was hot, but she did not believe that it was unusually hot. She had never burned herself on the water. Christine admitted she would never use the hot water without turning on the cold water to reduce the temperature of the hot water. Prior to this accident, Christine had never attempted to lower the water heater temperature because she did not realize the hot water produced from the water heater could cause severe burns.

On the evening of the accident, Tiffany had been given her bath and was dressed for bed. Her mother sent her upstairs to go to bed while the older two daughters came downstairs to give their parents a good-night kiss. Christine stated the older two girls had been downstairs for about a minute when they all heard Tiffany crying. They ran upstairs and found Tiffany in the bathroom sink. Christine indicated she believed Tiffany had climbed onto the toilet stool, then onto the clothes hamper and into the sink. Tiffany was sitting in the right-hand corner of the sink facing away from the faucets as if she were trying to get back out of the sink. Only the hot water was running. Christine estimated it had been approximately 5 to 10 minutes between when she had last seen Tiffany and when she heard her crying.

Christine carried Tiffany into her bedroom in order to get dry pajamas. When she pulled off the bottom part of Tiffany’s pajamas, part of her skin came away with the pajamas and that was when she realized Tiffany was seriously hurt. Christine took Tiffany to the trauma center at Burnham Hospital and the emergency room doctor stated Tiffany would have to be transported to Springfield Memorial Hospital. Tiffany was in the hospital for about three weeks and she had skin grafts on her legs.

Jerry Wallace, Tiffany’s father, had never noticed anything unusual about the hot water system and he always tempered the hot water with cold water. He understood that if you turned the hot water on and left it on you could be burned. Jerry indicated that prior to Tiffany’s accident, he had no knowledge as to the temperature of the hot water nor did he have any reason to determine what the temperature was or adjust the temperature. Jerry stated he, to the best of his knowledge, did not know of anyone who had altered the hot water temperature prior to his living there and he did not consider the hot water to be unusually hot nor did he ever receive any burns by the hot water. Jerry stated that approximately two weeks after Tiffany’s accident, he measured the temperature of the hot water using a regular thermometer, a candy thermometer and a meat thermometer. He indicated the temperature reading at that time was 170 degrees Fahrenheit.

Gary Hutter, defendant’s expert witness, reviewed various materials describing different types of water heaters, information on burns and scalds, and all the discovery material in this case. Hutter indicated he had formed three opinions as to the issues in this matter based on these materials. First, he opined that looking at the codes, standards, and industry custom and practice, it was normal to have water heaters that could produce water at temperatures such that prolonged exposure could cause injury. He believed it would be safe to have a water heater that produced water heated to 150 or 160 degrees. Hutter stated there would be reasons, such as clothes washing, dishwashing, and specifically, the washing of diapers, where it would be necessary to have hot water heated to a temperature greater than 130 degrees. He indicated that many manufacturers of washing machines and dishwashing equipment recommended temperature settings well above 130 degrees.

Next, Hutter concluded that at the time this water heater was designed and manufactured, there were no requirements or suggestions by any recognized authority that this water heater should contain warnings about scalds or burns to children who were left unattended. Hutter found that when this water heater was manufactured, water heater temperatures had the ability to be adjusted by the removal of an access panel thereby exposing an internal device, usually operated by the turning of a screw, to increase or decrease the water temperature. He stated this was acceptable by the codes and standards at that time and did not appear to be unreasonably dangerous. Hutter examined the owner’s manual for this particular water heater and indicated that it specifically stated the thermostat on the hot water tank was set at 150 degrees. It appeared to him that Westinghouse recommended a service representative change the temperature but it did not specifically preclude the owners from doing it themselves.

Finally, he stated it would be foreseeable that a water heater would generate water at temperatures of 165 or 170 degrees even when it was set at 150 degrees. He explained that most water heaters, under certain conditions, will produce water that is at a higher temperature than what is preset. He further explained most water heaters are equipped with an over-temperature over-pressure device which will cause the water heater to switch off when the water temperature gets too high. He read from a sentence in the owner’s manual which stated, “This Westinghouse electric water heater is equipped with an over-temperature protection. This means that if for any reason the water temperature rises above a safe limit, the electric power will automatically be shut off to the water heater and will stay off until the fault is corrected and the reset button on the water heater is pressed to start it operating.” However, he admitted there was no definition of what temperature would be unsafe. He estimated, however, this temperature would be around 190 to 200 degrees.

Thomas Knott, plaintiff’s expert, consulted various standards for both gas and electric water heaters that were promulgated at-the time this particular water heater was manufactured. In 1971, the standards indicated there was no recommended temperature at which a thermostat should be set. However, the electric water heater standards indicated water should not attain 185 degrees and should have a dial setting of no more than 170 degrees. Knott testified the water heater in this case met the requirements of the standards promulgated in 1971.

He opined that there was a problem with this water heater in that the temperature was preset too high and could not easily be changed. He believed water temperatures should be set at cold when at the factory, thus allowing the consumer to set the temperature upon purchase and installation. He believed that 150 degrees was too high but that 130 degrees would be an appropriate temperature at which the water heater could be preset. He based this opinion on information he had read after becoming involved in this case.

Knott was unaware of the properties of dishwashing and clothes washing detergents in 1971 and did not know what the minimum temperature would be that would be necessary to dissolve those detergents. However, he indicated that would be an important factor in trying to determine what a reasonable setting on a water heater would be. He agreed that, with respect to the use for dishwashing and clothes washing, a consumer would want to achieve a temperature that would actually dissolve the detergents and put them to their intended use. He also agreed that water heated to 130 degrees could cause a child to receive a third-degree burn and that there were temperature regulating devices that would provide water at a lower temperature coming from various faucets.

Finally, Knott testified that with this water heater, an access panel could be removed and a screw driver could be used to decrease or increase the temperature. It was his belief that this would be a cumbersome burden upon the homeowner and that the owner’s manual required a serviceman to come to the home. He indicated he believed there should have been an external knob so that the user could adjust the temperature of the water heater although there were no standards promulgated in 1971 that required such a knob. He also indicated there were no standards in existence in 1971 that required a water heater manufacturer to place a warning on the water heater that hot water could cause burns. Finally, Knott testified he did not believe there was any malfunction in this particular water heater.

Plaintiff’s second expert witness, Gary Darby, inspected the Wallaces’ water heater in May 1986 and found the insulation and the thermostat were intact. He indicated that the thermostat had a maximum temperature setting of 170 degrees Fahrenheit and a minimum temperature of 110 degrees. The thermostat was set at 155 degrees. He also concluded the heating elements were intact and there were no lime deposits or calcification on the tank itself. He concluded that, in his opinion, there was no defect in the manufacture of this particular water heater. He also found no tangible evidence of a malfunction of the water heater.

Darby did not consult any regulations or standards and did not consult any manufacturer’s information except for the information contained on the “cut sheet” of the water heater in question. He did, however, consult with a manufacturing representative of a manufacturer other than Westinghouse. Darby stated that in 1971, temperature settings on water heaters had a range of 120 to 160 degrees with that varying five degrees either way. He indicated that most water heaters manufactured at that time had dial thermostats to change the temperature setting. He indicated this particular water heater had a temperature control setting which could be accessed by merely taking off the access panel and turning the screw with a screwdriver. He stated it was not unusual to not have an outside thermostat adjustment.

Darby indicated 150 degrees was a higher temperature than what he would consider safe for residential handwashing and bathing. However, he indicated this would be an appropriate temperature setting for residential dishwashing and clothes washing. He indicated he was unaware of the quality of detergent in 1971 and at what temperature it would be necessary for hot water to be used at to make those detergents effective. He indicated 150 degrees would be ideal for dishwashers and would be recommended for such use. He believed it would be reasonable for the manufacturer to anticipate use of the hot water heater for multiple purposes. Finally, Darby testified it was reasonable for Westinghouse to anticipate and expect that a person would not use hot water unless it was tempered by cold water. He also indicated he believed Westinghouse should have warned its consumers of the possible burning or scalding by hot water but was unaware of whether any standards promulgated in 1971 required such a warning.

In the complaint, plaintiffs alleged Westinghouse was negligent in three respects: (1) for presetting its water heater temperature at 150 degrees Fahrenheit when it knew or should have known this temperature level was dangerous to users, including the plaintiffs’ ward; (2) for failing to warn its product users that a 150-degree temperature setting could produce severe burns or scald upon minimal exposure when it knew or should have known of that danger; and (3) for failing to incorporate a device within its water heater by which users themselves could decrease the water temperature level. Westinghouse filed its motion for summary judgment on November 15, 1991, alleging that it had no duty to set the water temperature thermostat at less than 150 degrees, no duty to warn product users that a 150-degree setting could produce severe bums or scalds upon minimal exposure, and no duty to incorporate a device within its water heater by which users themselves could decrease the water temperature level.

On February 3, 1992, the trial court issued its letter opinion indicating it was granting defendant’s motion for summary judgment. The trial court indicated, first, the 150-degree setting of the thermostat was, as a matter of law, not negligent. The court further concluded defendant had no duty to warn that a 150-degree temperature could cause bums since the risk of being burned by hot water was an open and obvious one and that the failure to provide an external device to decrease the temperature setting was not negligent. The court found it was not objectively reasonably foreseeable that Tiffany would come into contact with the hot water as she did and become burned in the manner she did so as to impose liability upon defendant for distributing a product that met all applicable standards of the time. Accordingly, summary judgment was granted for defendant. Plaintiffs timely filed a notice of appeal.

Plaintiffs assert that the trial court went beyond the scope of the motion for summary judgment, which only raised the issue of duty, and found as a matter of law there was no negligence. Summary judgment is properly granted only when pleadings, depositions, and admissions on file, together -with affidavits, if any, show there is no genuine issue of material fact and movant is entitled to judgment as a matter of law. (Olaf v. Christie Clinic Association (1990), 200 Ill. App. 3d 191, 193-94, 558 N.E.2d 610, 612.) In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court was correct. (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.) A reviewing court may sustain the decision of the trial court on any grounds called for by the record, regardless of whether the trial court made its decision on a proper ground. (Muck v. Van Bibber (1992), 223 Ill. App. 3d 830, 835, 585 N.E.2d 1147, 1151.) Accordingly, we will not consider whether the trial court exceeded the limits of the motion for summary judgment, but rather will consider the facts and law related to this case and determine whether defendant was properly granted summary judgment.

Plaintiffs first contend that Westinghouse was negligent in presetting its water heater temperature at 150 degrees. Plaintiffs suggest it was foreseeable that a small child would come into contact with hot water and, because of the preset temperature, receive severe burns.

The essential elements of a cause of action based on common law negligence may be stated briefly as follows: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) The determination of whether a duty exists — whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff — is an issue of law to be determined by the court. (Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 440, 484 N.E.2d 1088, 1091.) The existence of a legal duty is not to be bottomed on the fact of foreseeability alone, but on whether the harm was reasonably foreseeable. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617, 618.) Factors which are relevant to existence of a legal duty are the reasonable foreseeability of an injury, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant. Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 226-27.

In Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1, the supreme court stated that a foreseeability test was not intended to bring within the scope of the defendant’s liability every injury that might possibly occur. Rather, “Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in original.) (Winnett, 57 Ill. 2d at 12-13, 310 N.E.2d at 5.) The court concluded it was not objectively reasonably foreseeable that a four-year-old child would be permitted to approach an operating farm forage wagon and place her fingers in the holes in its moving screen. “While in retrospect it can be asserted that the manufacturer of the forage wagon should have foreseen that the unfortunate event in this case might conceivably occur, we do not believe its occurrence was objectively reasonable to expect.” Winnett, 57 Ill. 2d at 13, 310 N.E.2d at 5.

In Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc. (1980), 81 Ill. App. 3d 90, 400 N.E.2d 1072, a three-year-old child was burned when the nightgown she was wearing burst into flames after she climbed on top of the stove in the kitchen of her family’s home. The child’s mother sued on a strict liability theory. In affirming the granting of summary judgment, the appellate court noted it was obvious that the intended use of the stove did not embrace use by a three-year-old child. The court believed it was not objectively reasonably foreseeable for a manufacturer to expect that a three-year-old child would climb on a chair and then onto the stove wearing a very flammable nightgown. The court concluded that “[wjhile in retrospect it can be argued that the unfortunate event in this case could conceivably occur, it can be argued that almost any occurrence is conceivable” and “[t]o impose liability on such grounds would transform manufacturers and sellers into insurers of their products,” a position the supreme court had previously rejected. (Schierer, 81 Ill. App. 3d at 94, 400 N.E.2d at 1076.) Thus, since the accident did not occur with the stove’s intended use and it was not objectively reasonably foreseeable that the injury would occur in this manner, summary judgment was properly granted.

In Gengler v. Herrington (1991), 219 Ill. App. 3d 6, 579 N.E.2d 412, a child was burned by hot water from the. bathroom sink in her baby-sitter’s apartment. The child’s mother sued the landlord of the baby-sitter’s apartment building in a negligence action and the trial court granted summary judgment in favor of defendant. On appeal, the court held summary judgment was properly granted in favor of defendant since defendant breached no duty to the plaintiff.

The court noted defendant had no knowledge that the water in the tenant’s apartment could get so hot as to cause injury to an unsuspecting child. There was no evidence that the water heater was defective, and if it was, that defendant knew of the defect and did not correct it. The court concluded:

“Virtually every household appliance or fixture may present a danger to a two- or three-year-old child who is left unsupervised by his parents or caretaker, and in such cases, under proper circumstances, a landowner may be relieved of the duty to warn the child or remove the dangerous instrumentality whose danger is apparent. [Citation.] Under the conditions present here, the law should not impose a duty on the landlord to insure the safety of a toddler who is left free to roam and give vent to his curiosity.” (Emphasis omitted.) Gengler, 219 Ill. App. 3d at 13, 579 N.E.2d at 417.

In the present case, it was not objectively reasonably foreseeable that Tiffany would be injured in this manner. First, Tiffany did not use the water heater as intended. The bathroom sink had separate controls for hot and cold water and it is reasonable to assume that a person using the sink would use both hot and cold water to wash his or her hands. Both of Tiffany’s parents stated they always tempered the hot water with cold water.

Furthermore, the other factors courts use to determine whether a duty exists also weigh in favor of concluding no such duty exists. The likelihood of this injury is minimal when the hot water is used properly. Again, it is reasonable to assume a person will not use the hot water untempered by cold water or would remove the body part from water that was too hot. The magnitude of the burden on defendant having to guard against this injury is great. The evidence established that at the time the water heater was manufactured, the quality of laundry and dish detergent was such that a water temperature of 150 degrees Fahrenheit was needed to kill bacteria and germs in clothes washing and dishwashing machines. Requiring defendant to lower the preset temperature to a level where no danger to small children could occur would render those products useless.

Thus, we hold there was no duty on Westinghouse to preset its temperature on the water heater at something lower than 150 degrees. It was not objectively reasonably foreseeable that a child would crawl into the sink and misuse the product in this manner. The evidence of all the experts indicated that this was the normal temperature setting for the time during which the water heater was manufactured. Since the water heater had multiple uses, and such a temperature setting was necessary in terms of proper use of the detergents for dishwashers and washing machines, no duty to lower the preset temperature existed.

Next, plaintiff alleges Westinghouse had a duty to warn its product users that a 150-degree temperature could produce scalds or severe burns with minimal exposure. Westinghouse responds it had no duty to warn since the possibility of injury from hot water resulted from a common propensity of hot water that was open and obvious.

The determination of whether a duty to warn exists is a question of law and not of fact. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471.) Generally, a duty to warn arises when there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that harm might occur absent a warning. Since the purpose of the warning is to apprise persons coming into contact with the product of dangers of which he is unaware so as to enable him to take appropriate precautions to protect himself, it logically follows that warnings serve no purpose and, hence, are not required when the dangers are open and obvious. (Clark v. Penn Versatile Van (1990), 197 Ill. App. 3d 1, 5, 554 N.E.2d 643, 646.) There is no duty to warn of the potential of injury resulting from common propensities of products which are open and obvious. Mealey v. Pittman (1990), 202 Ill. App. 3d 771, 778, 559 N.E.2d 1173, 1177.

In Genaust, plaintiff was injured when an electric current arced from an uninsulated power line to the metal antenna he was installing. Plaintiff alleged on appeal that defendants had a duty to warn about the danger of electrical arcing of metal objects which were brought within close proximity of the uninsulated transmission wire. The court noted that the danger of electricity is common knowledge and it is also common knowledge that the metal will conduct electricity. Thus, it was not objectively reasonable to expect that a person, knowing the danger of electricity if metal should contact electrical wires, would attempt to install a metal tower and antenna in such close proximity to electrical wires. Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471.

In Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846, the court held there was no duty to warn that a lighted candle could cause injury. A four-year-old child was burned when, while visiting at defendants’ home, her clothes caught on fire after she had climbed onto a bathroom counter shelf and came into contact with a lighted and unprotected candle. The court affirmed the granting of summary judgment for defendants, finding that fire is a danger which under ordinary circumstances may reasonably be expected to be fully understood and appreciated by a child of an age to be allowed at large. Since the danger was obvious and the evidence established the child knew that fire was dangerous, could burn her, and that it was on top of the candle, there was no duty to warn. Sampson, 151 Ill. App. 3d at 401, 502 N.E.2d at 849.

Finally, in Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 515 N.E.2d 779, the court held defendant owed no duty to plaintiff, a five-year-old child who fell off a set of monkey bars onto concrete and sustained injuries. The court stated that a five-year-old child could appreciate the risk that falling from a height onto concrete could cause injury. See also Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 507 N.E.2d 19 (where the court held a six-year-old child could appreciate the risk of dangers involved in falling off a slide onto an asphalt surface).

In the present case, it cannot be said that Westinghouse had a duty to warn that hot water could cause injury. Plaintiff raises the issue in terms of warning the user that water heated to 150 degrees could produce severe scalds or burns. Plaintiff then suggests that it is not open and obvious that water heated to this temperature could produce such injury. It might not be common knowledge that water at that temperature could burn the skin in one-quarter of a second, but it is within common knowledge that hot water, at any temperature for any length of time, can scald or burn skin. Thus, Westinghouse had no duty to warn that the water produced from its water heater could cause burns or scalds if used improperly. The fact that hot water within a range of temperatures can scald or burn skin is open and obvious.

Plaintiff finally contends Westinghouse was negligent in not providing an external knob or control device to adjust the temperature setting. Westinghouse alleges it owed no duty to plaintiff to design and produce a water heater that had an external temperature control device.

The duty to manufacture a reasonably safe product does not require the safest design possible or one incapable of causing injury, (Kerns v. Engelke (1979), 76 Ill. 2d 154, 166, 390 N.E.2d 859, 865; Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372.) In both strict liability and negligence actions, the threshold question as to an unreasonably dangerous design is not whether the product could have been made safer, but whether it is dangerous because it fails to perform in the manner reasonably to be expected in light of its nature and intended function. (Baltus v. Weaver Division of Kidde & Co. (1990), 199 Ill. App. 3d 821, 830, 557 N.E.2d 580, 586.) The manufacturer has the duty of due care to design and manufacture a product that will be reasonably safe for its intended and any reasonably foreseeable uses. Not only must plaintiff prove that the product was not reasonably safe, but also that the defendant knew or, in the exercise of ordinary care, should have known that the product was not reasonably safe. In a negligence action, the defendant may rebut plaintiffs proof by showing its exercise of reasonable care through evidence of its testing and inspection procedures or evidence that it complied with industry custom and practice. Cornstubble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 24-25, 532 N.E.2d 884, 886.

Plaintiff has failed to show the product designed by Westinghouse was not reasonably safe or had an unreasonably dangerous design. First, the experts indicated that the temperature could have been reduced by merely removing the access panel on the water heater and turning the screw with a screwdriver. The owner’s manual indicated a service representative should be called to lower the temperature, but did not specifically preclude the homeowners from doing such. Second, it is reasonable for the manufacturer to assume that if a consumer did not lower the temperature, the hot water would be tempered with cold water, thus minimizing any dangers from burns or scalds. The evidence indicated there were no industry standards that required an external knob to adjust the temperature. Finally, one of plaintiff’s experts testified it was not unusual to find such a water heater manufactured in 1971 that did not contain an external knob. Hence, Westinghouse was not negligent in manufacturing this water heater without an external knob to regulate the water temperature.

For the foregoing reasons, we conclude the trial court properly granted summary judgment in favor of Westinghouse since it owed no duty to preset the water heater at a lower temperature or warn about the danger of injury from the hot water, nor was it negligent in manufacturing a water heater without an external knob to control the water temperature.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.