text:
    THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES (The Department of Children and Family Services), Petitioner, v. ILLINOIS STATE LABOR RELATIONS BOARD, Respondent and Cross-Respondent (American Federation of State, County, and Municipal Employees, Council 31, A F L-C I O, Respondent and Cross-Petitioner).
    Fourth District
    No. 4-92-0702
    Argued May 19, 1993.
    Opinion filed August 26, 1993.

      Gene Vernon, of Central Management Services, of Springfield, and Alan M. Levin (argued), Jill P. O’Brien, and James R. Jenkins, all of Laner, Mu-chin, Dombrow, Becker, Levin & Tominberg, Ltd., of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General (argued), of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Jacob Pomeranz (argued), of Cornfield & Feldman, of Chicago, for other respondent.
   JUSTICE LYTTON

delivered the opinion of the court:

This petition and cross-petition are before this court on administrative review of a decision and order entered by the Illinois State Labor Relations Board (Board) on July 16, 1992. (Illinois Department of Central Management Services (Department of Children & Family Services), 8 Pub. Employee Rep. (Ill.) par. 2037, No. S — RC—92—46 (Illinois State Labor Relations Board, July 16, 1992) (hereinafter 8 Pub. Employee Rep. (Ill.) par. 2037).) We must consider whether the Board erred in determining that certain employees of the State of Illinois, Department of Central Management Services (Department of Children and Family Services (DCFS) (employer)), were supervisors within the meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r)). After a complete review of the record and the parties’ arguments, we affirm.

I. Background

On October 15, 1991, the respondent-cross-petitioner, American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (AFSCME), petitioned the Board to hold a secret ballot election among child welfare supervisors (CWS’s) of DCFS. The petition sought to add approximately 200 CWS’s to the existing statewide bargaining unit. Formal hearings on the petition were held over seven days in November and December 1991.

The hearing officer issued a recommended decision and order finding that the CWS’s were supervisors within the meaning of section 3(r) of the Act and dismissed AFSCME’s petition. Applying the Board’s prior interpretation of section 3(r), he found State supervisors exempt from the statutory requirement of devoting a “preponderance” of time to supervisory activity. However, the hearing officer also noted the First District Appellate Court’s opinion in American Federation of State, County & Municipal Employees, Council 31 v. Chief Judge of the Circuit Court (1991), 209 Ill. App. 3d 283, 568 N.E.2d 139, appeal denied (1991), 139 Ill. 2d 593, holding State supervisors were not exempt from the preponderance requirement. Thus, he made additional findings that “downstate” CWS’s met the preponderance requirement, while Cook County CWS’s did not.

Both parties filed exceptions to the hearing officer’s recommended decision and order. On July 16, 1992, the Board adopted the hearing officer’s recommended decision, but modified it to reflect that it was bound by the first district’s opinion in Chief Judge. Therefore, the Board concluded that the Cook County CWS’s were not supervisors according to section 3(r) of the Act, because they did not spend a preponderance of their time engaged in supervision. On the other hand, the “downstate” CWS’s were supervisors under the Act because they did spend a preponderance of their time exercising their supervisory authority. The Board ordered an election for the Cook County CWS’s, and they elected AFSCME as their bargaining representative.

II. Legislative History

The origin of section 3(r) of the Act can be traced to Executive Order No. 73 — 6, issued by then-Governor Daniel Walker. (1979 Ill. Laws 5155 (Executive Order 73 — 6, issued by Governor Walker September 4, 1973).) This executive order granted collective-bargaining rights to most State of Illinois employees and established the Office of Collective Bargaining. Executive Order No. 73 — 6 was continued by then-Govemor James R. Thompson until the effective date of the Act in 1984. (1984 Ill. Laws 4638 (Executive Order 84 — 5, issued by the Governor August 20, 1984, revoking Executive Order 73 — 6 and all rules and regulations promulgated thereunder).) One of the rules promulgated pursuant to the executive order defined the term “supervisor.” (Rules and Regulations of the Director of Personnel for Public Employee Collective Bargaining §1.16.) This definition is substantially the same as that contained in section 3(r) of the Act. However, section 3(r) adds the requirement that a supervisor must engage in supervisory activity a preponderance of the time, referred to as the “preponderance” requirement.

When the Senate presented Governor Thompson with the original Senate Bill 536 (83d Ill. Gen. Assem., Senate Bill 536, 1983 Sess.), he returned the bill unsigned with an amendatory veto message. (Final Legis. Synopsis and Dig. of 1983 Sess. of the 83d Ill. Gen. Assem., Senate Bill 536 (Sept. 23, 1983), at 327, 329.) The language contained in section 3(r) of the Act originally read, “[e]xcept with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority.” (83d Ill. Gen. Assem., Senate Bill 536, 1983 Sess.) The Governor recommended that the words “State supervisors notwithstanding” be added to the end of the sentence. The bill was amended by the legislature, and the language at issue was added. The bill was then passed by both the House and Senate and was signed into law by Governor Thompson (Pub. Act 83 — 1012, eff. July 1, 1984 (1983 Ill. Laws 6830)). See Illinois Department of Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2025, Nos. S — UC—4, S — UC—20 (Illinois State Labor Relations Board October 23, 1985) (both Board opinion and appended hearing officer’s recommended decision discuss legislative history of this language).

III. Discussion

Section 3(r) of the Act contains four prongs that are employed by the Board to determine whether an employee is a supervisor. The statute as enacted, in relevant part, provides as follows:

“ ‘Supervisor’ [(1)] is an employee whose principal work is substantially different from that of his subordinates and [(2)] who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, [(3)] if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. [(4)] Except with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).

The “preponderance” requirement was first construed by the Board in Illinois Department of Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2025, Nos. S — UC—4, S — UC—20 (Illinois State Labor Relations Board, Oct. 23, 1985). The Board refused to employ the “preponderance” requirement against a State supervisor in Illinois Department of Central Management Services. It reasoned that the “State supervisors notwithstanding” language was added by an amendatory veto, and that a veto, by its very nature, must effect a change. The change, according to the Board, was to exempt State supervisors from the “preponderance” requirement. The Board also reasoned that a literal reading of the “preponderance” requirement with the clause “State supervisors notwithstanding” was less than completely clear. Instead of assigning the language at issue in section 3(r) of the Act its plain and ordinary meaning, the Board believed that under the common law rules of statutory construction, it was required to interpret the Act in a manner which would avoid rendering any word, clause or sentence meaningless or superfluous.

The Board also rejected the argument that comments made by the sponsor of the bill, then-Representative Alan J. Grieman, were an indication of the Governor’s intent behind adding the “State supervisors notwithstanding” language. In essence, Grieman stated that there was a difference between supervisors in the private sector and in the public sector in that supervisors in the public sector are often given honorific titles without any real authority over other employees’ wages, hours and working conditions. (See Chief Judge, 209 Ill. App. 3d at 288-89, 568 N.E.2d at 143.) The Board reasoned that the comments were general statements concerning the recommended changes of the Governor. For the above reasons, the Board found that the clause “State supervisors notwithstanding” was added to exempt State supervisors from the “preponderance” requirement.

This court is guided by the primary rule of statutory interpretation, to which all other canons and rules are subordinate: to ascertain and effectuate the true meaning and intent of the legislature. (Village of Buffalo v. Illinois Commerce Comm’n (1989), 180 Ill. App. 3d 591, 595, 536 N.E.2d 438, 440.) It is fundamental that a court must give the legislative language at issue its plain and ordinary meaning. If the statutory language is plain, clear and unambiguous, and if a court can ascertain the intent from it, the language will be given effect by the court without resorting to other aids for construction. Buffalo, 180 Ill. App. 3d at 595, 536 N.E.2d at 440-41.

We agree with the first district’s opinion in Chief Judge that the plain and ordinary meaning of the word “notwithstanding” is unambiguous, and clearly does not exempt State supervisors from the “preponderance” requirement. We also find that a literal reading of the statutory language at issue is that the term “supervisor” includes only those individuals who devote a preponderance of their employment time to exercising such authority in spite of their status as State supervisors. Chief Judge, 209 Ill. App. 3d at 289, 568 N.E.2d at 143.

The argument of the employer and the Board that we should construe the plain and unambiguous language of the statute is without merit. Because we have assigned the “notwithstanding” clause its plain and unambiguous meaning, it is unnecessary to resort to any other rules of construction. Buffalo, 180 Ill. App. 3d at 595, 536 N.E.2d at 441.

The employer and the Board’s interpretation of Governor Thompson’s amendatory veto is misguided. The Governor’s amendatory veto power was exercised pursuant to article IV, section 9(e), of the Illinois Constitution of 1970, where he is authorized to make “specific recommendations for change to the house in which it originated.” (Ill. Const. 1970, art. IV, §9(e).) While the exact boundaries of the Governor’s power under this section have not been totally defined, a Governor may not substitute a completely new bill (People ex rel. Klinger v. Howlett (1972), 50 Ill. 2d 242, 249, 278 N.E.2d 84, 88), or change the fundamental purpose of the legislation. (Continental Illinois National Bank & Trust Co. v. Zagel (1979), 78 Ill. 2d 387, 398, 401 N.E.2d 491, 496.) The Governor’s amendatory veto power may make changes that constitute minor enhancements which relate to clarity, fairness or the practical requirements of the legislation. People ex rel. City of Canton v. Crouch (1980), 79 Ill. 2d 356, 376, 403 N.E.2d 242, 251.

When the Governor considers a bill, he is acting in a legislative capacity, and for that purpose, he is a part of the legislative department. (Williams v. Kerner (1963), 30 Ill. 2d 11, 14, 195 N.E.2d 680, 682.) If the Governor exercises his amendatory veto powers and returns a bill to the house in which it originated with specific recommendations for change, the legislature must take additional action. The bill is “passed” when both houses of the legislature have voted to accept the Governor’s recommendations for change. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 316, 527 N.E.2d 1264, 1270-71.) Any recommended changes by the Governor that are accepted by the legislature must be. interpreted as being part of the legislature’s intent behind the statute, so long as the changes do not disturb the basic purpose of the legislation. The courts must review whether the amendatory veto changes disturb the basic purpose of the legislation or alter the system prescribed for carrying that purpose out. County of Kane v. Carlson (1987), 116 Ill. 2d 186, 216, 507 N.E.2d 482, 494; see Klinger, 50 Ill. 2d at 249, 278 N.E.2d at 88.

We find that the Governor’s recommended changes simply clarify the fact that State supervisors are subject to the “preponderance” requirement of section 3(r) of the Act. The legislative intent is ascertained by a plain and unambiguous reading of the statute at issue. The Board’s decision and order are affirmed on these grounds.

In passing, we note that public statements made by legislators who are in a position to clarify legislative meaning carry weight and are helpful to the courts in determining legislative intent. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 385-86, 415 N.E.2d 1034, 1039.) Therefore, the Board and employer’s argument that Representative Grieman’s comments regarding public sector supervisors were not relevant is not persuasive. See Chief Judge, 209 Ill. App. 3d at 289, 568 N.E.2d at 143.

We turn next to the issue raised by AFSCME on its cross-petition, whether the Board erred in its interpretation of the term “preponderance.” The Board defines “preponderance” in the context of section 3(r) of the Act as meaning that supervisors must spend a “significant allotment” of their time exercising their supervisory authority. According to the Board and the employer, “significant allotment” involves a comparison of three or more activities, including supervisory activities, and will be satisfied if the supervisory activities amount to a “significant allotment” of the supervisor’s time. (In a situation involving three activities, a “significant allotment” of supervisory activities would amount to more than 33.3%.) AFSCME contends that “preponderance” means that supervisors must spend a “majority,” or more than 50%, of their time engaged in supervisory activities.

AFSCME argues that this issue is a matter of first impression in this State and that there is a split between the Local Labor Relations Board (Local Board), the Educational Labor Relations Board (Educational Board) and the Board construing identical language in a related act. (See Ill. Rev. Stat. 1989, ch. 48, par. 1702(g).) The Local Board and the Educational Board construe “preponderance” to mean that supervisors must spend a “majority,” or more than 50%, of their time engaged in supervisory activities. AFSCME also argues that the dictionary definition of “preponderance” and the holdings of this court support the construction of the Local Board and the Educational Board.

Again we are guided by the primary rule of statutory interpretation, that is, to ascertain and effectuate the true meaning and intent of the legislature. (Buffalo, 180 Ill. App. 3d at 595, 536 N.E.2d at 440.) This is accomplished by giving the legislative language at issue its plain and ordinary meaning, and if a court can ascertain the intent from it, the language will be given effect by the court without resorting to other aids for construction. Buffalo, 180 Ill. App. 3d at 595, 536 N.E.2d at 440-41.

The dictionary definition of “preponderance” is “a superiority or excess in number or quantity[;] *** majority.” (Webster’s Third New International Dictionary 1791 (1976).) Webster’s defines “majority” as “a number greater than half of a total.” (Webster’s Third New International Dictionary 1363 (1976).) A literal reading of the language at issue is that the term “supervisor” includes only those individuals who devote a majority of their employment time to exercising such authority. The purpose behind the four prongs of section 3(r) of the Act is to determine whether an employee is a supervisor. Therefore, the only inquiry that the Board is concerned with is whether the individual is a supervisor or an employee a majority of his or her employment time. We hold that the Board erred as a matter of law in requiring a showing that the employee was engaged in supervisory activities a “significant allotment” of the time. This construction of the term “preponderance” is contrary to the plain and ordinary meaning of the term. The Board erred in its construction of the term “preponderance.” Cf. Black’s Law Dictionary 1064 (5th ed. 1979) (defining “preponderance of the evidence”); Moss-American, Inc. v. Illinois Fair Employment Practices Comm’n (1974), 22 Ill. App. 3d 248, 259, 317 N.E.2d 343, 351 (defining “preponderance of the evidence” as “the greater weight of the evidence, not necessarily in numbers of witnesses, but in merit and worth that which has more evidence for it than against it is said to be proven by a preponderance”).

The Board attempts to justify its adoption of the “significant allotment” standard in its decision in City of Burbank, 1 Pub. Employee Rep. (Ill.) par. 2008, No. S — RC—45 (Illinois State Labor Relations Board, June 6, 1985). In City of Burbank, the Board adopted the standards and rationale of the hearing officer citing similar language from a Federal statute (5 U.S.C. §7103(a)(10) (1982)), which contained the “preponderance” standard. The hearing officer relied on two Federal Labor Relations Authority (FLRA) cases to support his position that “the most significant allotment” of an employee’s time, as opposed to more than 50% of employment time, was the appropriate standard. Veterans Administration Hospital, Tucson, Arizona (1980), 4 F.L.R.A. No. 21, at 124; see also Veterans Administration Medical Center, Fayetteville, North Carolina (1982), 8 F.L.R.A. No. 115, at 660.

A review of these FLRA cases, however, does not support the Board’s proposition of law that the FLRA utilizes a “significant allotment” standard. In Veterans Administration Hospital, Tucson, Arizona, the FLRA did not address or discuss the meaning of the terms “preponderance” or “significant allotment.” In fact, the issue involved in this case was whether the employee performed supervisory functions more often than nonsupervisory functions. In Veterans Administration Medical Center, Fayetteville, North Carolina, the FLRA did address an issue involving the interpretation of the term “preponderance.” FLRA framed the critical inquiry under section 7103(a)(10) of the Federal Labor-Management and Employee Relations Act (5 U.S.C. §7103(a)(10) (1982)) as “whether a head nurse is primarily a supervisor or primarily a rank-and-file employee during a majority of her employment time.” (Emphasis added.) (Veterans Administration Medical Center, Fayetteville, North Carolina, 8 F.L.R.A. No. 115, at 660.) This inquiry is consistent with our analysis. Therefore, we conclude that the Board’s reliance on these two FLRA cases was erroneous and does not support its application of the “significant allotment” standard.

The Board and the employer next argue that City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 554 N.E.2d 155, supports their position that the Board did not err in employing its “significant allotment” interpretation of the term “preponderance.” They argue that the supreme court’s assumption of the “significant allotment” standard is an implicit acceptance of the Board’s construction. We disagree.

Although the court in Freeport assumed the Board’s construction of “preponderance” for the purpose of its discussion, the issue presented to the court was whether the Board erred in its application of section 3(r) of the Act to the City of Freeport’s police department and the Village of Wheeling’s fire department. (Freeport, 135 Ill. 2d at 503, 554 N.E.2d at 158.) Freeport did not discuss or confront the meaning of the term “preponderance,” and it cannot be considered precedent for our decision.

We turn next to the remaining issues raised by AFSCME and the employer. AFSCME argues that the Board’s holding that the “downstate” CWS’s were supervisors was against the manifest weight of the evidence, while the employer argues that the Board’s holding that the Cook County CWS’s were not supervisors under section 3(r) of the Act was against the manifest weight of the evidence.

Judicial review of the Board’s decisions is governed by the Administrative Review Law. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) An agency’s findings and conclusions on questions of fact shall be considered prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) Only where the reviewing court determines that the agency’s findings of fact are against the manifest weight of the evidence, and it is clearly evident that the agency should have reached the contrary conclusion, will the agency’s findings be reversed. Freeport, 135 Ill. 2d at 507, 554 N.E.2d at 159.

We have reviewed the factual findings of the hearing officer as adopted by the Board and find that they are not against the manifest weight of the evidence. The hearing officer found that the “downstate” CWS’s spent between 65% and 90% of their time engaged in supervisory functions. This finding clearly satisfies the “preponderance” requirement of section 3(r) of the Act.

The hearing officer found that the Cook County CWS’s did not meet the “preponderance” requirement because they did not spend a “significant allotment” of their time engaged in supervisory activities. The hearing officer did not make a finding based on a percentage. However, because we have already concluded that “significant allotment” is a lesser measure than the “majority of time” standard, we find that the Cook County CWS’s did not meet the “preponderance” requirement.

The Board’s findings as to the “downstate” and Cook County CWS’s are affirmed.

The decision and order of the Board is affirmed.

McCUSKEY, P.J., and BRESLIN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE E. EMBRY, Defendant-Appellant.
    Fourth District
    No. 4—92—0737
    Argued March 24, 1993.
    Opinion filed August 26, 1993.

      David W. Butler (argued), of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1992, a jury convicted defendant, Clarence E. Embry, of two counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 14, 12 — 16.) The court sentenced defendant to two consecutive eight-year terms of imprisonment for the aggravated criminal sexual assault convictions and declined to enter judgments of conviction on the two aggravated criminal sexual abuse charges. Defendant appeals, alleging as error that (1) the court admitted hearsay testimony absent compliance with section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10), as well as hearsay testimony which implied an ongoing series of acts; (2) the prosecutor said in his opening statement that the child witnesses would testify about sexual abuse, but neither witness related any of the elements of the offenses charged; (3) the court admitted testimony that the defendant was in the hospital for cannabis use at the time of arrest; (4) the State did not prove him guilty beyond a reasonable doubt; and (5) the court concluded that consecutive sentences were mandatory.

We affirm.

I. Background

On the evening of January 2, 1992, defendant baby-sat his next-door neighbor’s three daughters — A.P. (age four), H.P. (age six), and E.W. (age nine) — at his trailer. During the evening, E.W. returned home, but her two younger sisters remained overnight at the defendant’s trailer. The mother testified at defendant’s trial that when the girls returned home the following morning, she smelled semen on A.P. Further, H.P. told her that defendant had pulled his pants down, the girls (A.P. and H.P.) had pulled their pants down, and they all danced around. The mother took all three girls to the Bloomington police department for an interview, but only E.W. and H.P. discussed acts involving A.P. and H.P. None of the girls alleged that defendant had any sexual contact with E.W. The State subsequently charged defendant with two counts of aggravated sexual assault, one count alleging penile-vaginal penetration with A.P. and one count alleging penile-vaginal penetration with H.P., and two counts of aggravated criminal sexual abuse, one count alleging conduct involving defendant’s penis and A.P.’s hand and one count alleging conduct involving defendant’s penis and H.P.’s leg.

In April 1992, the State filed a notice of intent under section 115 — 10 of the Code that the State intended to offer statements made by H.P. to her mother and Officers Fazio and Harris of the. Blooming-ton police at defendant’s trial. In June 1992, the trial court conducted a section 115 — 10 hearing at which Fazio testified that H.P. told him that defendant pulled his pants down, she and A.P. pulled their pants down, and A.P. then sat on the defendant’s head. H.P. also told him that they were all lying on the floor together, and A.P. had to squeeze the defendant’s “peter,” after which the defendant “went to the bathroom.” Fazio asked H.P. what color came out when defendant went to the bathroom, and H.P. said that sometimes it was white when A.P. sat on the defendant and sometimes was yellow when he went to the bathroom.

H.P. then demonstrated with two stuffed mice how she and A.P. straddled defendant when he was lying on the floor on his back and told Fazio that neither she nor A.P. were wearing pants when they did so. H.P. also told Fazio that A.P. had to lick the defendant’s “peter.” At that point, defendant objected to admission of anything H.P. told Fazio regarding acts committed on anyone other than herself. The court overruled the objection, finding that section 115 — 10 of the Code did not require the out-of-court statements to be limited to acts performed upon the child declarant.

Fazio stated that he gave H.P. some anatomical drawings for the purpose of body-part identification. H.P. identified the penis as defendant’s “peter,” and explained that he used it to touch her “butt” and her “pee-pee,” which she had labeled the vaginal area. H.P. told Fazio that defendant rubbed his penis against her butt and her inner thigh, and then “went to the bathroom” on her. Fazio stated that H.P. also said that defendant did the same things with A.P. Using the anatomical drawings, H.P. also indicated that defendant’s penis contacted A.P.’s mouth when A.P. had to lick defendant’s “peter.”

Harris testified that he assisted Fazio in interviewing H.P. and essentially corroborated Fazio’s testimony. At the section 115 — 10 hearing, no witness testified to any statements made by E.W. or A.P.

Prior to defendant’s trial, the court conducted a hearing to determine the competency of each of the three sisters to testify. After conducting an in camera interview with each child, the court determined that H.P. and E.W. were competent to testify, but that A.P. (who had turned five) was not.

When the trial began, the prosecutor told the jury in opening statements that the child witnesses would testify about sexual abuse by defendant. Prior to the State’s calling its first witness, defendant objected to any testimony regarding out-of-court statements by E.W. because she was not alleged to be a victim of any offense. The State acknowledged that the previous section 115 — 10 hearing did not include statements made by E.W. Outside the presence of the jury, the court then conducted a section 115 — 10 hearing on statements E.W. made to Fazio. She told Fazio that the defendant locked the door of his trailer, pulled his pants down, and talked “gross.” She said her sisters pulled their pants down and then “bad things happened,” but she would not look. E.W. then left defendant’s trailer and went next door to her own home. Based on this testimony, the court found that E.W.’s out-of-court statements possessed the requisite reliability.

When the jury returned, Fazio testified essentially as he had at the section 115 — 10 hearings regarding the out-of-court statements made by H.P. and E.W. Fazio also testified that at the time of defendant’s arrest, defendant told Fazio that on the night he was baby-sitting the three girls, he took them out for pizza and then they returned to the trailer. Around 9 p.m., E.W. went home. Defendant told Fazio that he went to the bedroom to change for bed, but the girls tried to watch him undress. He threatened to send them home and told them to go back in the living room.

Defendant further told Fazio that when he lay on the floor with the girls, they started to tickle him. He claimed that A.P. pulled down his pants and grabbed his “wiener.” He told A.P. not to do that and again threatened to send them home. Fazio asked defendant whether H.P. had also tried to grab his penis or if defendant had placed his penis in A.P.’s mouth. Defendant said that H.P. had tried to grab his penis, but he had moved away. A.P. then asked him if she could lick his penis and tried to put his penis in her mouth, but he would not let her. Defendant told Fazio that H.P. encouraged A.P. in this conduct. He explained that he did not allow the girls to leave later because the lights were off next door, and it was rainy and cold outside. When Fazio asked the defendant if he was giving the statement of his own free will, the defendant said “[y]es, as long as I can get help.”

During cross-examination, defense counsel asked Fazio where defendant was when defendant made the statement, “as long as [he could] get help.” Over objection by the State, Fazio testified that defendant was “at the [Veterans Administration (VA)] hospital in Dan-ville for cannabis usage.” Defendant objected, and the court admonished the jury to disregard the reason why defendant was at the VA hospital.

The State then called E.W. to the stand. E.W. testified that when she was at the defendant’s trailer with her sisters, she saw defendant pull his pants down and then turned her head away. Under cross-examination, E.W. indicated that she also saw H.P. and A.P. with their pants down.

H.P. next took the stand and answered some preliminary questions as to her name, age, and where she went to school. In response to leading questions, she indicated that she had been at the defendant’s trailer with her sisters on the night in question, and that E.W. then left. After she refused to answer any further questions, the court excused her from the witness stand.

The State then called the children’s 'mother, who testified that on January 2, she sent her daughters to defendant’s trailer so he could baby-sit them. She stated that when H.P. and A.P. returned the following morning, she noticed a funny odor on them, which she described as smelling like semen. She testified that H.P. told her that defendant pulled his pants down, A.P. pulled her pants down, and they danced. She further testified that E.W. had told her that was the reason she came home and did not want to spend the night at defendant’s trailer.

After the State rested, defendant moved for a mistrial because H.P. had not testified and the State had offered no corroborative evidence at the section 115 — 10 hearing. The court responded as follows:

“State’s case is that the defendant himself has made what only can be considered perhaps inculpatory admissions, and I think that is the type of corroborative evidence that can be considered. Corroboration also exists in the form that it’s not denied the kids were over there that night. It’s not denied they stayed twenty-four hours. It’s not denied they slept over there. [E.W.] came back home.
***
*** [T]he only element that seems to appear to be left is what a jury concludes really happened. Did what happen consist of what defendant says happened in his voluntary statement or together with any explanation he may give? Is that sufficient for an adult even to acknowledge that that much happened and go into what amounts to kind of a seductive small child defense ***? *** So to me the corroboration here is clear as to whether the acts took place or not.”

Defendant testified that on the night of January 2, all the children asked if they could stay with him. He took them out for pizza, and they returned to his trailer, where the children colored and played. At about 8:30 p.m., two of the girls began changing into their pajamas, and E.W. went home. Defendant went into the bathroom and changed into a pair of sweatpants. While he was in the bathroom, the children came down the hallway and tried to peek inside, but he chased them back to the living room.

Defendant testified that he had the girls sleep on the floor on a used blanket he had purchased and, while there, the girls began roughhousing and wrestling. Later, at the girls’ request, the defendant lay with them on the floor because they were scared, but they then started tickling and wrestling with him. According to defendant, H.P. told A.P. to pull down defendant’s sweatpants, but defendant told them not to do that and grabbed his pants before they could pull them down. Defendant asked H.P. whére she had learned this, and she told him she saw her mom and her mom’s boyfriend in the bedroom.

Defendant further testified that he made no attempt to stop E.W. when she wanted to go home because it was early in the evening and lights were still on at her trailer. Later, when the other girls wanted to go home, he would not allow them to do so because the trailer was dark and it was raining. Defendant stated that the girls wore underwear under their pajamas, which they pulled down but did not remove. He said that the wrestling on the floor with the girls (while they pulled down their pajamas and tried to pull down his sweatpants) lasted approximately 10 minutes.

Defendant stated that the next morning, he did not notice anything unusual about the way the girls acted. However, because A.P. had wet her underwear during the night, he dried her underwear on the register. When he took the children home, he visited with the girls and their mother for about V-k hours and returned later that same day for another one to two hours. While he was there, nothing was said to him about the events of the prior evening, and he did not notice anything unusual in anyone’s behavior. He denied having any sexual contact with the children. He also testified that at the time of his arrest, he was in a VA hospital in Danville for reasons unrelated to the events of January 2.

During cross-examination, defendant denied that A.P. had grabbed his “wiener,” stating that she had tried but had not been successful. However, he did acknowledge he told Fazio that A.P. had pulled down his pants and grabbed his “wiener.” Defendant testified that both H.P. and A.P. had attempted to grab his “wiener,” but they never got his sweatpants down. Defendant stated that although he threatened to send the girls home for their actions, he did not do so because they did not want to go. He admitted that he had told Fazio that A.P. and H.P. had wanted to go home, but he would not let them go because it was late.

Defendant also admitted on cross-examination that he told Fazio that A.P. tried to put his penis in her mouth, but he would not let her, and that when A.P. asked if she could lick his penis, he told them that “I wasn’t up for it because it’s not nice. [H.P.] was telling [A.P.] to do it.” Defendant also acknowledged that he told Fazio that A.P. and H.P. had tried to sit on his penis, but he moved away from them and told them that it was not nice, to stop it, and to get their clothes on. Defendant denied that A.P. and H.P. were naked when they tried to grab his penis. Defendant admitted that when Fazio asked him whether he had had an orgasm while this was happening, he had responded “no, it was wrong and nasty, and I wasn’t into it.” Last, defendant suggested that the children’s mother might say they smelled like semen when they came home the following morning because A.P. had wet the used blanket she slept on.

As stated earlier, the jury returned guilty verdicts on all four charges, but the court entered judgments of conviction only on the two counts of aggravated criminal sexual assault. At sentencing, the court found the two offenses of aggravated criminal sexual assault involving A.P. and H.P. were part of a single course of conduct and, under section 5 — 8—4(a) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a)), consecutive sentences were mandatory. The court sentenced the defendant to two consecutive, eight-year terms of imprisonment, noting that its sentencing decision might have been different if the statute did not mandate consecutive sentences.

II. Analysis

A. Section 115 — 10 of the Code

1. Corroborating Evidence of Alleged Acts When the Child Victim Does Not Testify

Defendant first contends that section 115 — 10 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10) required the State to present corroborative evidence of the acts which are the subject of the section 115 — 10 statements at the time the trial court conducts the hearing on the reliability of those statements. We disagree.

Section 115 — 10(b) of the Code provides that certain evidence shall be admitted as an exception to the hearsay rule under the following circumstances:

“(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b).

At the initial section 115 — 10 hearing, the court found that the time, content, and circumstances of the statements made by H.R to her mother, Fazio, and Harris provided sufficient safeguards of reliability. The court also indicated that because the State had presented no corroborative evidence at the hearing, the statements would not be admitted if H.P. did not testify or was unable to testify.

Defendant does not contest the finding that the out-of-court statements were reliable. Instead, he argues that the hearsay statements were inadmissible because H.P. did not testify at his trial and the State did not submit any corroborative evidence at the section 115— 10 hearing.

In a typical case involving section 115 — 10 of the Code, the State will present evidence to try to convince the court that “the time, content, and circumstances of the statement [at issue] provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1991, ch. 38, par. 115— 10(b)(1).) If the State succeeds in doing so, as here, then the section 115 — 10 hearsay statement of the child is admissible if either of the following occurs: (A) the child testifies at the “proceeding” (namely, the trial); or (B) the child is unavailable to testify as a witness at trial (for whatever reason) “and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1991, ch. 38, pars. 115 — 10(b)(2)(A), (b)(2)(B).) Although “corroborative evidence of the act which is the subject of the statement” might overlap with evidence demonstrating that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability,” these are still two separate concepts, and as in the present case, the State may choose (and need) to present different evidence to address each. Thus, the question arises whether (and to what extent) the trial judge should address either of these two alternatives at the conclusion of the initial section 115 — 10 hearing. We conclude that the trial court should provide the parties with the benefit of the court’s analysis of the evidence presented so that the parties can govern themselves accordingly, both at trial and in preparation for trial. We explain this conclusion further as follows.

Assume a hypothetical case in which the trial court, at the conclusion of the section 115 — 10 hearing, concludes that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(b)(1).) Assume further that the trial court concludes that the evidence presented at that point in the proceedings is not sufficiently corroborative of the act which is the subject of the statement. The trial court should state these findings to the parties so that the prosecutor knows that in order to convince the court to admit the child’s hearsay statement under section 115 — 10 of the Code, the prosecutor must either (1) call the child to testify at the trial, or (2) be prepared to present further “corroborative evidence of the act which is the subject of the statement” at a renewed section 115 — 10 hearing if, as occurred in the present case, the child in fact cannot testify.

The situation in this hypothetical is different than one in which the trial court, after hearing evidence that addresses section 115— 10(b)(1) of the Code, concludes not only that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability,” but also that “there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1991, ch. 38, pars. 115 — 10(b)(1), (b)(2)(B).) The trial court’s so finding might prove important for the prosecutor’s evaluation of how to proceed, especially if the child victim is young, hesitant to testify, or the child’s parents do not want the child to testify.

Where a prosecutor has a good-faith belief that the child will testify and intends to call the child to testify, then we should not burden the trial court with a requirement that the State must at that point present “corroborative evidence of the act which is the subject of the statement.” After all, such evidence will never be required if, as an alternative to the State’s presenting “corroborative evidence” under section 115 — 10(b)(2)(B) of the Code, the child testifies at trial, thereby satisfying the alternative requirement for the admissibility of the hearsay statement under section 115 — 10(b)(2)(A) of the Code. Defendant argues in the present case that the State must present corroborative evidence of the acts which are the subject of the statement at the initial section 115 — 10 hearing even though the prosecutor in good faith represents that the child will later testify at trial. For the reasons stated, we reject that argument and choose to leave this matter to the sound discretion of the trial judge.

Despite the State’s good-faith belief that the child victim would testify at trial, the State cannot be certain that the child can or will do so. However, this lack of certainty does not require the presentation at the section 115 — 10 hearing of possible corroborative evidence under section 115 — 10(b)(2)(B) of the Code just in case the child victim does not testify at trial. If that event occurs, as here, then the trial court can conduct a supplemental section 115 — 10 hearing to give the State the opportunity to present whatever corroborative evidence it possesses to meet the requirement of section 115 — 10(b)(2)(B) of the Code.

Additionally, we point out that the trial court’s remarks at the conclusion of the initial section 115 — 10 hearing constitute a preliminary assessment of the evidence, and, as with rulings on motions in limine, this preliminary assessment may be reconsidered with or without the presentation of further evidence. Thus, once it became clear in the present case that H.P. could not testify, the trial court revisited the matter of “corroborative evidence” under section 115 — 10(b)(2)(B) of the Code and concluded that such evidence was present so as to render H.P.’s hearsay statements to Fazio admissible under that section.

Further, although not necessary for our decision, we note that defendant through discovery clearly knew this corroborative evidence existed. This evidence consisted of his own inculpatory statements to Fazio at the time of arrest, the statements of the victims’ mother regarding the odor of semen on A.P., and E.W.’s observing her sisters and defendant with their pants down.

Citing People v. Ward (1991), 207 Ill. App. 3d 365, 369, 565 N.E.2d 740, 742-43, defendant also argues that the statements he made to Fazio do not constitute corroborative evidence because section 115 — 10(b)(2)(B) of the Code views corroborative evidence as consisting of only physical evidence or eyewitness testimony. We disagree. We find nothing in Ward or in the language of section 115 — 10(b)(2)(B) of the Code that indicates a limitation on the type of evidence which can fulfill the “corroborative evidence” requirement of the statute. The Ward court expressly referred to “circumstantial” or “other forms of evidence” in addition to eyewitness testimony as examples of corroborative evidence. (Ward, 207 Ill. App. 3d at 369, 565 N.E.2d at 743.) The statements made by defendant at the time of his arrest (though characterizing the victims as aggressors) clearly corroborate the statements of H.P. at issue in the section 115 — 10 hearing.

As a caveat, we note that Fazio testified at trial about H.P.’s out-of-court statements before the State called H.P. to the stand. In view of the foreseeability that a child testifying about being sexually assaulted may sometimes freeze when confronted with the unfamiliar and often intimidating atmosphere of the courtroom, the State risks a mistrial by presenting the child’s hearsay statements through section 115 — 10 of the Code before the child himself or herself testifies. If the child proves unable to testify and if the State cannot then present corroborative evidence within the meaning of section 115 — 10(b)(2)(B) of the Code, then the child’s hearsay evidence would not be properly before the jury because of noncompliance with the statute.

2. Statements Regarding Acts Not Perpetrated on the Declarant

Defendant next argues that the out-of-court statements made by H.P. regarding defendant’s acts involving A.P. do not fall within the scope of the hearsay exception of section 115 — 10 of the Code. Defendant claims that exception only pertains to acts committed upon the child declarant and does not extend to hearsay statements concerning another alleged victim, in this case A.P.

The trial court determined that the language of section 115— 10(a)(2) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(a)(2) (a sexual act perpetrated upon a child)) did not limit the admission of a child victim’s out-of-court statements to acts performed on himself or herself. Section 115 — 10(a) of the Code provides as follows:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(a).

The introductory language in section 115 — 10(a) of the Code refers to a prosecution for a sexual act perpetrated upon a child, namely, the child victim. Section 115 — 10(a)(1) of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(a)(1)) refers to testimony by such child (the victim) regarding out-of-court statements. Section 115 — 10(a)(2) of the Code again refers to such child’s out-of-court statement (the victim) pertaining to the subject of “a prosecution for a sexual act perpetrated upon a child.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10(a)(2).) Because the final clause of section 115 — 10(a)(2) parallels the language in section 115 — 10(a) of the Code, which expressly refers to acts perpetrated against the victim, we construe section 115 — 10(a)(2) of the Code as limiting the admission of out-of-court statements to those pertaining to an act, matter, or detail of a sexual offense committed upon the declarant child victim. We therefore disagree with the trial court’s conclusion that the statute admits statements describing offenses against a victim other than the victim declarant.

However, in this case, H.R’s out-of-court statements, while including references to acts defendant had perpetrated on A.P., were properly admissible as components of the contemporaneous and ongoing series of events constituting a matter or detail pertaining to the offense perpetrated against herself. (See People v. Rushing (1989), 192 Ill. App. 3d 444, 452, 548 N.E.2d 788, 793 (defendant’s threat made to child victim to kill her family was a detail pertaining to the offense since it was made contemporaneous with the sexual acts).) The fact that the statements had independent relevance as proof of an offense concurrently perpetrated against A.R. does not render the statement inadmissible as a matter or detail pertinent to offenses against H.P. Accordingly, we find that the trial court properly admitted the hearsay statements of H.P.

Defendant also argues that the trial court improperly admitted the out-of-court statements of E.W. We agree. Hearsay statements by E.W. do not fall within the purview of section 115 — 10 of the Code because she was not a victim of a sexual offense perpetrated against her by defendant. However, the erroneous admission of E.W.’s statements does not require reversal. We view E.W.’s statements, as testified to by Fazio, as uncertain and minimally, if at all, prejudicial. E.W.’s statements essentially were that defendant “locks the door, talks gross,” and then “bad things” happened, causing her to look away. Additionally, E.W.’s testimony and cross-examination at defendant’s trial overshadow any impact of Fazio’s testimony regarding her vague out-of-court statements. In further support of our conclusion that the erroneous admission of Fazio’s testimony about what E.W. told him does not require reversal, we note that the State presented a strong case against defendant, and we conclude that the testimony in question made no difference to the outcome of this case.

Defendant further argues that Fazio disregarded an order in limine to rephrase E.W.’s statements to him so as to avoid use of the present verb tense, which implied other sexual conduct for which defendant was not charged. At trial, Fazio testified that E.W. told him that defendant “does things that he shouldn’t do,” “[t]alks gross,” and “locks the doors.” Defendant raised no objection or motion to strike at the time Fazio testified as indicated, thereby depriving the trial court of any opportunity to address this alleged impropriety. Because defendant failed to object at trial to this testimony, he has waived any objection on appeal. See People v. Peter (1973), 55 Ill. 2d 443, 460, 303 N.E.2d 398, 408.

B. The Prosecutor’s Opening Statement

Defendant next asserts that the prosecutor’s opening statement prejudiced him because the jury was told that the victims would testify to sexual acts, yet neither H.P. nor E.W. testified about any of the elements of the offenses charged.

During opening statements, the prosecutor stated the following:

“The evidence that I’m going to present today are [sic] with six witnesses, two of them are going to be three [sic] girls, one of which is what we call an occurrence witness of the allegations of sexual abuse to the two girls. The three girls that are going to testify or I should say just two girls are going to testify is [sic] [E.W.] and [H.P.] They will testify about the abuse that has occurred regarding what they’ve seen and what has been done to them.”

An opening statement should be an outline of facts which the prosecution in good faith expects to prove; the inclusion of matters not thereafter presented at trial constitutes reversible error only when substantial prejudice results to defendant. People v. Coleman (1989), 187 Ill. App. 3d 541, 550, 543 N.E.2d 555, 561.

Defendant does not allege that the prosecutor made the opening statement in bad faith. Further, defendant has not shown that the facts referred to in the prosecutor’s opening statement were not presented at trial: Fazio testified to H.P.’s out-of-court statements describing the sexual acts perpetrated by defendant, and E.W., the occurrence witness, testified about what she had seen occurring between her sisters and the defendant. Instead, defendant argues that the children’s inability to testify to the elements of the offense, when combined with Fazio’s testimony that young children are often reluctant to discuss sexual offenses and the prosecutor’s reference to the girls’ reluctance to testify in court, allowed the jury to infer that the offenses must have occurred merely from the fact that the children would not testify. We find this argument unpersuasive and unsupported by precedent. It merits no further discussion.

C. Testimony of Other Crimes

Defendant argues that he was denied a fair trial by testimony interjecting evidence of other crimes. In an apparent attempt to explain defendant’s statement to Fazio at the time of arrest that he was freely willing to talk “as long as I can get help,” defense counsel on cross-examination asked Fazio where defendant was at the time of his arrest. The State objected to this question, but the court overruled it. Fazio then responded, “[h]e was at the VA hospital in Danville for cannabis usage.”

The response to which defendant now objects may be due to his failure to limit explicitly the scope of his question. More significantly, however, the court admonished the jury at defendant’s request that the purpose of defendant’s presence in the VA hospital was irrelevant, and that the jury was to disregard that portion of Fazio’s answer. The court’s action cured any prejudice which might have otherwise occurred. See People v. Wilson (1972), 51 Ill. 2d 302, 308-09, 281 N.E.2d 626, 629.

D. Sufficiency of the Evidence

Defendant next argues that the State failed to prove him guilty beyond a reasonable doubt because of the absence of corroboration of H.P.’s hearsay statements and defendant’s denial of the offenses. We disagree.

The trial court, as the judge of the credibility of the witnesses and weight of the evidence presented at the section 115 — 10 hearing (see Ward, 207 Ill. App. 3d at 370, 565 N.E.2d at 743), determines whether corroboration exists which allows admission of hearsay statements made by a child trader section 115 — 10 of the Code. A reviewing court cannot substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses. Further, we will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. See People v. Campbell (1992), 146 Ill. 2d 363, 374-75, 586 N.E.2d 1261, 1265-66.

Defendant moved for a directed verdict at the close of the State’s case, arguing a lack of evidence corroborating H.P.’s out-of-court statements. The court found defendant himself supplied corroboration by his own voluntary statement to Fazio. At sentencing, the trial court noted:

“This is a trial where there was no question, none, that there was sexual activity involving the children and the Defendant. The Defendant was hung on the basis of statements and admissions he had made to the police ***.”

Moreover, in addition to defendant’s own inculpatory statements, the testimony by the children’s mother that she smelled semen on A.P. when A.P. returned from the defendant’s trailer after spending the night, and E.W.’s testimony that she saw defendant pull his pants down and her sisters pull their pants down while at the defendant’s trailer, provides more than sufficient corroboration of H.P.’s out-of-court statements.

E. Consecutive Sentences

Defendant last argues that the two counts of aggravated criminal sexual assault involving H.P. and A.P. were not a single course of conduct (contrary to the finding of the trial court) but were instead distinct and separate offenses for which consecutive sentences under section 5 — 8—4(a) of the Unified Code are not mandatory. (See People v. Bole (1993), 155 Ill. 2d 188, 197-99, 613 N.E.2d 740, 744-45.) Defendant argues that because each of the two charges of aggravated criminal sexual assault involves different acts with different victims, they are separate events, not part of “a single course of conduct.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a).) Defendant points to the trial court’s observation that the sentence imposed might have been different had consecutive sentencing not been mandatory under section 5 — 8—4(a) of the Unified Code.

Section 5 — 8—4(a) of the Unified Code provides, in pertinent part, the following:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was *** a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a).

In Bole, the supreme court determined that the defendant’s three convictions for criminal sexual assault arose from offenses committed on three different dates, several days apart, and thus were separate events not committed in a single course of conduct. (Bole, 155 Ill. 2d at 194, 613 N.E.2d at 743.) However, the supreme court also determined that given the statutory definition of “conduct” as “an act or a series of acts, and the accompanying mental state” (Ill. Rev. Stat. 1991, ch. 38, par. 2 — 4), a “single course of conduct” might encompass multiple incidents. Bole, 155 Ill. 2d at 193, 613 N.E.2d at 743.

In this case, the evidence indicates that all the sexual contact between defendant and the two victims occurred in a single time span when they were all lying together on the floor of defendant’s trailer. According to defendant’s trial testimony, the activities on the floor lasted approximately 10 minutes. We conclude that this series of acts involving two children, whether occurring simultaneously or over a short time period, cannot be viewed as other than a single course of conduct during which no substantial change in the nature of the criminal objective occurred. The existence of two victims rather than one does not alter this conclusion.

III. Conclusion

For the reasons stated, we affirm the judgment and sentences of the circuit court.

Affirmed.

McCULLOUGH and LUND, JJ., concur. •


author: JUSTICE MAAG

text:
    JOLE LIDDLE, Plaintiff-Appellant, v. SALEM SCHOOL DISTRICT No. 600, Defendant-Appellee.
    Fifth District
    No. 5—92—0419
    Opinion filed August 26, 1993.
    Rehearing denied September 28, 1993.
    Harold K. Pike III, of Centraba, for appellant.

      Raymond A. Hauser and Jon G. Crawford, both of Scariano, Kula, Ellch & Himes, Chartered, of Chicago, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

This case arises from an alleged failure on the part of Salem School District 600 to deliver a letter to the plaintiff, Jole Liddle, in a timely fashion. For reasons explained later in this opinion, we will only describe those facts alleged in the plaintiff’s complaint.

On June 27, 1991, Jole Liddle filed a complaint against Salem School District 600. In his complaint he claimed that during the academic year 1990-91 he was enrolled as a student in the Salem School District 600 and was also a member of the men’s varsity basketball team. He hoped to attend college following his high school graduation.

According to the complaint, Monmouth College of West Long Branch, New Jersey, mailed a letter to Liddle on July 18, 1990. The letter was addressed to Liddle, in care of the men’s basketball coach at Salem High School. Liddle claimed that the high school had a policy of delivering mail to students addressed to them in care of the school. However, the letter was not delivered to Liddle for seven months despite the fact that the letter was received by the school district shortly after it was mailed. According to the complaint, the letter contained a notification to Liddle that he was being recruited for a basketball scholarship by the college. Liddle claims that because of the tardy delivery of the letter to him, he did not seasonably learn of these recruitment efforts and as a result the college discontinued its recruitment efforts. He, therefore, sought damages equal to the value of a four-year scholarship at Monmouth.

The school district filed a motion to dismiss or in the alternative for summary judgment. The motion to dismiss stated that it was filed pursuant to section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619). However, the motion did not raise any of the grounds for dismissal set out in that section. Rather, it sought dismissal on the basis of a claimed failure to state a cause of action. As such, the motion was in fact a section 2 — 615 motion. Ill. Rev. Stat. 1991, ch. 110, par. 2-615.

The parties each filed lengthy memoranda, affidavits, and other materials in support of and in opposition to the motions. The parties and the court treated the complaint as an attempt to plead a bailment cause of action with respect to the letter.

The school district argued in the motion to dismiss that the letter was not property capable of being the subject of a bailment. It also claimed that insufficient facts had been pleaded to show a causal relationship between the tardy delivery and the alleged loss of the scholarship.

Liddle responded by arguing that the information in the letter was the subject of the bailment and that this information was property and properly the subject of a bailment action. He also argued that sufficient facts were pleaded to show causation.

The circuit court, relying on our opinion in Robinson v. St. Clair County (1986), 144 Ill. App. 3d 118, 493 N.E.2d 1154, ruled that the letter was not bailable property and, therefore, dismissed the complaint with prejudice. The court expressly stated that the motion was not being granted on causation grounds. It is apparent from the order that the motion was granted due to a perceived failure of the complaint to state a cause of action. There is no indication that the summary judgment motion formed a basis for the dismissal.

As we stated earlier, despite the fact that the motion to dismiss was labeled as a section 2 — 619 motion, in fact, the averments of the motion and the grounds pleaded were indicative of a section 2 — 615 motion. We will not lengthen this opinion by again distinguishing these sections. Counsel are urged to read Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215, for a detailed discussion of the differences. It is enough to state that since the motion to dismiss was akin to a section 2 — 615 motion, we. must accept as true the well-pleaded facts of the complaint and may not consider facts outside the four corners of the complaint. Accordingly, we have set forth only the facts as alleged in the complaint.

The sole issue raised on appeal is: Does the information contained in the letter from Monmouth College constitute property that is properly the subject of a bailment? We answer this question in the affirmative.

A bailment occurs when goods, or other personal property, are delivered to another, who under contract either express or implied has agreed to accept delivery and deal with the property in a particular way. Once the purpose of the bailment has been fulfilled, the bailee, pursuant to the contract, must return the property to the bailor or otherwise deal with the property as contemplated by the contract or as directed by the bailor. (4A Ill. L. & Prac. Bailments §2, at 498 (1971); Interlake, Inc. v. Kansas Power & Light Co. (1979), 79 Ill. App. 3d 679, 398 N.E.2d 945.) Both tangible and intangible property may be the subject of a bailment. (Robinson, 144 Ill. App. 3d at 120, 493 N.E.2d at 1155.) A plaintiff seeking to plead a bailment cause of action has the option of proceeding in tort or contract. Robinson, 144 Ill. App. 3d at 121, 493 N.E.2d at 1156; Baren v. Cain (1884), 15 Ill. App. 387.

The elements of a cause of action premised on a bailment theory are:

(1) An agreement, express or implied, to create a bailment;
(2) Delivery of the property to the bailee in good condition;
(3) Acceptance of the bailed property by the bailee; and
(4) Failure by the bailee to redeliver the property or deal with it according to the terms of the bailment contract.

Wright v. Autohaus Fortense, Inc. (1984), 129 Ill. App. 3d 422, 425, 472 N.E.2d 593; 4A Ill. L. & Prac. Bailments §6, at 507-08 (1971).

The circuit court in dismissing the plaintiff’s complaint relied upon our decision in Robinson v. St. Clair County and held that the letter from Monmouth College was not bailable property. In Robinson we held that an AFDC (Aid to Families with Dependent Children) medical card was not bailable property since the card was merely symbolic of a status, did not constitute property, and did not entitle anyone to property. (Robinson, 144 Ill. App. 3d at 122, 493 N.E.2d at 1156.) We believe that the facts of this case are readily distinguishable.

While the AFDC card in Robinson contained information necessary to process an application for medical benefits, the wrongful retention, loss, or destruction of the card could not deprive the holder of access to those benefits. As stated in Robinson, if the card is lost, “it is common practice to call the local Illinois Public Aid office to determine whether entitlement to medical assistance has been established.” (Robinson, 144 Ill. App. 3d at 122, 493 N.E.2d at 1157.) The plaintiff in Robinson already knew she was entitled to benefits. Withholding the medical card did not deprive the plaintiff of information needed for benefits, nor did it deprive her of those benefits.

In the instant case, Liddle claims that because he did not learn of the Monmouth College recruitment efforts for seven months, he was deprived of the opportunity to compete for a scholarship. Unlike Robinson, where the plaintiff already knew her AFDC status, Liddle did not know of his status as a person being considered for a scholarship. Thus, it is this information that is claimed to constitute the property that was the subject of the bailment.

Our supreme court has recognized that information may constitute intangible personal property. (First National Bank v. Department of Revenue (1981), 85 Ill. 2d 84, 421 N.E.2d 175.) In that case, the court was required to determine with respect to computer software whether, under the Illinois Use Tax Act (Ill. Rev. Stat. 1977, ch. 120, pars. 439 through 439.22), the sale of that software was a transfer of tangible or intangible property. The court concluded that the information on the tapes was the substance of the transaction and not the tapes themselves. Therefore, the information was deemed to be intangible personal property. Department of Revenue, 85 Ill. 2d at 91, 421 N.E.2d at 179.

Information may, under certain circumstances, be a valuable commodity. If a person learns that the price of a stock is going to increase the following day and purchases shares prior to the rise, that information absolutely has value. Each of the parties to this case is undoubtedly paying the attorneys representing it for legal advice. We doubt that these attorneys would claim their advice was valueless.

There are numerous older decisions in this State which recognize that the nondelivery or late delivery of a telegram may result in liability. See Pfiester v. Western Union Telegraph Co. (1917), 282 Ill. 69, 118 N.E. 407 (telegraph company’s failure to deliver message offering personal-service contract playing baseball resulted in liability for damages); Providence-Washington Insurance Co. v. Western Union Telegraph Co. (1910), 247 Ill. 84, 93 N.E. 134 (telegraph company’s misdelivery of a telegram resulting in insurance policy not being cancelled will support judgment against the telegraph company); Western Union Telegraph Co. v. North Packing & Provision Co. (1900), 188 Ill. 366, 58 N.E. 958 (tardy delivery of telegram dealing with the purchase of hogs resulted in liability on the part of the telegraph company).

In some of the examples referenced above, the information had value to only one person or entity. In the case of the personal-service contract for playing baseball (Pfeister), the offer had no value to anyone other than the plaintiff, the offer was not assignable since it was a personal-service contract, and the paper it was written on had no real value. The information in the telegram had great value to Mr. Pfeister.

Similarly, in this case, the letter and information it contained was only valuable to Mr. Liddle. He could not assign or sell that information, but the information still had value to him.

We have considered the case of Brands v. Sheldon Community School (N.D. Iowa 1987), 671 F. Supp. 627, which is relied upon by the school district. In that case, a talented high school athlete hoped to receive a scholarship after graduation. Because of a disciplinary incident he was suspended from participation in athletics. The student sought injunctive relief, arguing that the suspension would harm his chances for a scholarship. In refusing the requested relief, the district court ruled that the student had neither an entitlement to nor a property interest in an unawarded scholarship. We consider the case to be distinguishable. In Brands the student had a mere hope or expectancy of receiving a scholarship. He was never actually recruited, and he did not have a property interest in a scholarship. In the instant case, Liddle had a property interest in the information contained in the Monmouth letter.

We believe that the information allegedly contained in the letter mailed by Monmouth College to Liddle constituted intangible personal property. We further conclude that information of the type allegedly contained in the letter is bailable property. For this reason, the order of the circuit court of Marion County must be reversed.

We must state, however, that important factual issues remain. It is possible that even if the letter had been promptly delivered to Liddle he still would not have received a scholarship. An element that must be proven by a preponderance of the evidence is that he would have received a scholarship but for the late delivery.

We also recognize that school districts may receive large amounts of mail addressed to their students and that a late delivery or nondelivery of that mail could be detrimental to the student. Simply because an opportunity is lost due to nondelivery or late delivery of mail, the school district should not be liable for all damages suffered. An important element that must be proven is that the district had notice, actual or constructive, of the type or importance of the information contained in the letter. This does not mean that the district must know precisely, in detail, the subject of the correspondence.

If a reasonable person would know or should know that the letter related to an important transaction, then liability may attach for the failure to deliver in a timely fashion (Providence-Washington Insurance Co., 247 Ill. at 90, 93 N.E. at 136). Among the factors to consider in resolving this factual issue are:

(1) The circumstances surrounding the receipt of the letter by the school district, e.g., have colleges in the past sent recruiting letters to students in care of the school;
(2) What policy or custom, if any, exists with regard to colleges corresponding with students through coaches or school districts; and
(3) Any other knowledge possessed by the district or its agents that would lead a reasonable person to conclude that the letter related to an important transaction.

This list is by no means all inclusive. Whether the letter should have been recognized as important correspondence is a matter to be determined by the finder of fact.

Accordingly, the judgment of the circuit court of Marion County is reversed, and the cause is remanded.

Reversed and remanded.

CHAPMAN, P.J., and GOLDENHERSH, J., concur.