text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RUSSELL E. LEACH, Defendant-Appellee (Hosie Thurman et al., Defendants).— THE PEOPLE OF THE STATE OF ILLINOIS, Defendant-Appellant, v. RUSSELL E. LEACH, Defendant-Appellee (Hosie Thurman et al., Defendants).
    Second District
    Nos. 2 — 90—0998, 2 — 90—1407 cons.
    Opinion filed January 8, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, Gregory L. Slovacek, John X. Breslin, and Nancy Rink Carter, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, and Raymond Myles, of Chicago, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

In consolidated appeals, the State asks us to reverse trial court orders granting motions by defendant, Russell Leach, to quash his arrest and suppress evidence. We hold that (1) we lack jurisdiction to hear the State’s appeal in case No. 2 — 90—1407 (trial court No. 90— CF — 2011); (2) the trial court did not manifestly err in concluding that the warrantless arrest of defendant inside his home was unconstitutional; and (3) the State is not entitled to a hearing on whether any of defendant’s post-arrest statements to the police are admissible in spite of the illegality of the arrest. We therefore dismiss the appeal in case No. 2 — 90—1407 and affirm the judgment of the trial court in case No. 2 — 90—0998 (trial court No. 90 — CF—1245).

On June 13, 1990, in case No. 90 — CF—1245, defendant, Hosie Thurman and Clarence Thurman, Hosie Thurman’s brother, were each indicted on four counts of attempted armed robbery (111. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 18 — 2(a)), two counts of aggravated unlawful restraint (111. Rev. Stat. 1989, ch. 38, par. 10 — 3.1(a)), and two counts of unlawful restraint (111. Rev. Stat. 1989, ch. 38, par. 10— 3(a)). All these charges were based on an incident that transpired early in the morning of May 24,1990.

On August 17, 1990, in case No. 90 — CF—2011, defendant was indicted on three counts of armed robbery (111. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)). The charges were based on alleged incidents of February 14, 1990, May 3, 1990, and May 6, 1990. Clarence and Hosie Thurman were indicted on two counts of armed robbery, based on the May 3,1990, and May 6,1990, incidents.

Maywood police officers arrested defendant at his home at about 6:30 a.m. on May 24, 1990. About five hours earlier, Downers Grove police arrested the Thurmans following a car chase during which a third person escaped.

On July 20, 1990, in case No. 90 — CF—1245, defendant moved to quash his arrest and to suppress all evidence that was the product of the arrest. The Thurmans also moved to quash their arrests and to suppress evidence. On September 7, 1990, directly after a consolidated evidentiary hearing, Judge Thompson denied the Thurmans’ motions. However, the judge found that defendant’s warrantless arrest violated the fourth amendment (see Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371). Judge Thompson granted the motion to quash the arrest. Also on September 7, 1990, Judge Thompson entered a written order in case No. 90 — CF—1245 suppressing the use at trial of all evidence resulting from defendant’s arrest. On September 14, 1990, the State appealed from the September 7 orders (No. 2 — 90—0998). See 134 Ill. 2d R. 604(a).

On September 28, 1990, in case No. 90 — CF—2011, defendant moved to quash his arrest and to bar from trial all evidence that was the product of the arrest. On October 16, 1990, defendant moved for an order applying collateral estoppel to his motion to quash arrest and suppress evidence. Defendant argued that, under principles of collateral estoppel, the court, in deciding defendant's September 28 motion to quash arrest and suppress evidence, was bound by its factual findings from the September 7, 1990, hearing. Defendant contended that because the evidence in each case was derived from the same arrest, the fourth amendment issues in each case were identical. Defendant’s motion prayed for an order of collateral estoppel in case No. 90 — CF— 2011, “thereby quashing the arrest and suppressing the evidence therein.”

On October 16, 1990, the trial court, per Judge John Nelligan, entered a written order stating that defendant’s motion for collateral estoppel was granted and that case No. 90 — CF—2011 was continued “for status” to November 30,1990.

On November 30, 1990, the court, per Judge Thompson, entered a “Court Order for Collateral Estoppel.” The order stated that the issues litigated and decided in the September 7, 1990, hearing in case No. 90 — CF—1245 were the same as those raised in defendant’s motion to suppress in case No. 90 — CF—2011; that, at the September 7, 1990, hearing, the court found that defendant’s warrantless arrest was unconstitutional because the police lacked both probable cause to arrest defendant and exigent circumstances to justify the warrantless in-house arrest; that, had the State brought the two prosecutions at the same time, Judge Thompson would have heard a single motion to quash arrest and suppress evidence and a subsequent motion would not have been necessary; and that defendant was entitled to an order of collateral estoppel. The order stated that collateral estoppel applied to defendant’s motion to quash arrest and suppress evidence in case No. 90 — CF—2011, “thereby quashing the arrest and suppressing the evidence therein.” On November 30, 1990, the court, per Judge Nelligan, entered an order continuing both cases until May 23, 1991, “for status as agreed.” On December 14, 1990, in case No. 90 — CF—2011, the State filed its notice of appeal from the November 30, 1990, order suppressing evidence (No. 2 — 90—1407). We have consolidated the appeals.

The State contends that the trial court erred in finding that the police lacked probable cause and exigent circumstances to arrest defendant. The State argues further that, even should this court uphold the quashing of the arrest, we should remand this case to the trial court for a hearing on whether any of defendant’s post-arrest statements were admissible because they were sufficiently purged of the taint of the illegal arrest.

Defendant replies that (1) this court lacks jurisdiction to hear the appeal in case No. 90 — CF—2011 (No. 2 — 90—1407 on appeal) because it waited more than 30 days to appeal from the trial court’s October 16, 1990, collateral estoppel order, which was in effect a suppression order immediately appealable under Supreme Court Rule 604(a); (2) the trial court did not manifestly err either in finding that the police lacked probable cause to arrest defendant or in finding that the police lacked the exigent circumstances necessary to validate a warrantless in-home arrest; and (3) the State has waived any hearing on attenuation by failing to raise the issue at the trial level.

We turn to the relevant evidence at the suppression hearing. Officer Timothy Gunn of the Downers Grove police department testified that, early in the morning of May 24, 1990, he was on patrol at the Finley Square Mall. All the stores were closed. Aside from a couple of cleanup crew vehicles, only one car, a white four-door Chevrolet, was parked in the mall lot. The car was parked “in an unusual manner.” Looking beyond the car, Gunn saw two people running from the Burger King; another person waved and yelled toward Gunn. The two people running entered the Chevrolet. There was already a driver in the car. They drove north, at first with the headlights out. Gunn followed the car.

As Gunn followed him, the driver of the car increased his speed until both vehicles were going about 90 miles per hour on Finley Road. As he followed the car, Gunn radioed his base, which informed him that the police had just been notified of an armed robbery at the Burger King. As the two vehicles approached the border of Downers Grove and Lombard, Gunn saw the passenger door of the Chevrolet open. Someone tossed out an object, out of which another object fell. Gunn caught up to the Chevrolet at Grace Street in Lombard, about three or four miles from Downers Grove. When the Chevrolet stopped, one person got out from the passenger side and ran from the car toward the backyard of 106 Grace Street. The other two individuals cooperated with Gunn. Gunn handcuffed the two men and took them into custody. He later learned that the two arrestees were Clarence and Hosie Thurman.

Consistent with Officer Gunn’s testimony, the State conceded that the police never obtained warrants to arrest or search the Thurmans or defendant.

Downers Grove police detective Dominic Scalzetti testified that, at about 1:30 a.m. on May 24, 1990, the police department telephoned his home. Scalzetti went to the station. There, at about 3:15 a.m., he interviewed Clarence Thurman. Thurman told Scalzetti that defendant was the third person involved in the attempted armed robbery at the Burger King and that defendant had been in the car with the Thur-mans. Clarence Thurman later told Scalzetti defendant’s address.

Immediately after interviewing Clarence Thurman, Scalzetti interviewed Hosie Thurman separately. Hosie Thurman also told Scalzetti that defendant was the third person involved in the Burger King incident. He also gave defendant’s address.

Hosie Thurman further told Scalzetti that, as Officer Gunn pursued the three suspects north on Finley Road, defendant handed Hosie Thurman a gym shoe from the front of the Chevrolet. Hosie Thurman could see that the shoe contained a small caliber handgun. Defendant told Hosie Thurman to throw the shoe out of the vehicle. Thurman opened the back door and did so. Before the interview with Hosie Thurman, Detective Scalzetti had learned that a gym shoe and a small caliber gun had been found on the street down which the Thurmans had traveled in attempting to elude Officer Gunn.

Detective Scalzetti acknowledged that 10 minutes or more passed between the time the police came to the scene of the arrest and the time the Thurmans were arrested. Scalzetti did not know whether the Thurmans were transported to the police station in the same vehicle. Also, Scalzetti did not know whether, at the point the Thurmans were arrested, the brothers were kept apart or were allowed to talk to each other. Scalzetti did not talk to anyone at the Burger King, and he did not receive any descriptions from Burger King employees of the would-be robbers.

Downers Grove police detective Lee Hahn testified that, at about 1:30 a.m. on May 24, 1990, the police department telephoned him at home to request that he assist Scalzetti’s investigation. Hahn first conducted interviews at the Burger King. The employees there told him that they were clearly able to see three people enter the restaurant. They described one of the men as about 6 feet 1 inch tall and weighing about 185 pounds.

Hahn next went to the Downers Grove police station, where he spoke with Officer Gunn and Detective Scalzetti. Officer Gunn told Hahn that the third suspect in the case was about 6 feet or 6 feet 1 inch tall, slim, and clad in a dark blue or black jogging suit. Gunn never told Hahn how far Gunn was from the third suspect or what the lighting conditions were when Gunn saw the third person. Gunn’s description of the third suspect was consistent with the description the Burger King employees provided.

At about 5:30 a.m., Hahn spoke with Scalzetti, who told him that both Thurmans had implicated defendant in the attempted armed robbery. After his computer check confirmed defendant’s address, Hahn informed the Maywood police department by telephone that defendant was a suspect in the Burger King incident. Hahn described defendant to the Maywood police, basing his description on those provided by Officer Gunn and the Burger King employees. He instructed the May-wood police to arrest defendant at defendant’s home. At about 6:30 a.m., the Maywood police informed Hahn by telephone that defendant had been arrested and was at the Maywood police station.

Defendant and Officer Randy Brown of the Maywood police department gave differing versions of the arrest itself. Defendant testified that he was 19 years old and 6 feet 4 inches tall. He lived with his parents and siblings in Maywood. Before his arrest, he had been in bed since 10 p.m. At about 6:30 a.m. on May 24, 1990, as he and his parents were sleeping, he heard the doorbell ring. Clad in gray sleeping shorts, defendant answered the door. Two Maywood police officers were at the door; they asked him if Russell Leach was there. Defendant replied that he was Russell Leach. The officers opened the door all the way, walked into the house, handcuffed defendant, and took him to the police station. The police did not have their guns drawn. Defendant did not fight the police, but he did not consent to the arrest. He was not violating any laws when he was arrested.

Officer Brown testified that, at about 6:30 a.m. on May 24, 1990, he and two other Maywood police officers, all in uniform, went to defendant’s house. One of the officers knocked on the door, and defendant’s parents answered. The officers asked whether defendant was home. When defendant’s parents said yes, the officers asked to come in so that they could speak to defendant. His parents agreed. Defendant was present.

Officer Brown explained at the hearing that the Downers Grove police department had informed him that defendant was a suspect in the Burger King incident. Brown testified that the officers went to defendant’s residence so that defendant could be questioned at the police station. Defendant was not free to refuse to go to the station.

The officers did not display any weapons at defendant’s residence, and there was no fighting or loud talking. Officer Brown testified that the police handcuffed defendant for their own safety. However, Brown admitted that, while the officers were at the house, he could see that defendant was dressed only in shorts and that defendant had no weapon in either hand.

After arguments of counsel, the trial judge stated that the defendant had been arrested without probable cause. The only evidence the police had that defendant was the third person in the Burger King incident consisted of the uncorroborated statements of Hosie and Clarence Thurman. Because the Thurmans were potential codefendants, their statements were inherently suspect. Moreover, what descriptions of the third person the police obtained lessened their reason to believe that defendant was the third participant. Although defendant was 6 feet 4 inches tall, Officer Gunn — a “trained officer” — and the Burger King employees said that the third man was 6 feet or 6 feet 1 inch tall.

The judge explained next that, even if the officers had probable cause to arrest defendant, the State had not shown exigent circumstances necessary to validate the warrantless arrest. The judge stated that the timing involved in the matter “indicated, that, apparently, the whereabouts of defendant were known, there was nothing to indicate the likelihood of flight from the residence, whether he was to be found there. In fact, it was not even known if he was there.” Besides having shown no likelihood that defendant would have fled had the police taken time to obtain a warrant, the State had failed to show there was any danger that defendant would destroy evidence or pose a threat to the community.

We turn first to defendant’s argument that this court lacks jurisdiction to address the appeal in case No. 90 — CF—2011. Under Supreme Court Rule 604(a) (134 HI. 2d R. 604(a)), the State may appeal from a pretrial order “the substantive effect of which results in *** quashing an arrest or search warrant; or suppressing evidence.” Supreme Court Rule 606(b) (134 111. 2d R. 606(b)) requires the State to file its appeal within 30 days of such an order. Defendant argues that Judge Nelligan’s October 16, 1990, order, by precluding the State from relitigating the finding in case No. 90 — CF—1245 that defendant’s arrest was unconstitutional and that the State could not use the evidence resulting from the arrest, had the substantive effect of quashing the arrest and suppressing the evidence in case No. 90— CF — 2011. We agree.

We have found no case addressing the unusual situation here. Both parties cite People v. Rembert (1980), 89 Ill. App. 3d 371. In Rembert, the defendant moved to quash his arrest and to suppress a lineup identification and statements. The trial court ruled first that the arrest was improper and that physical evidence seized as a result of the arrest would be quashed. The court reserved its ruling on whether to suppress the identification evidence and statements. Four days after its initial ruling, the trial court suppressed the identification evidence and statements. The State filed its notice of appeal more than 30 days from the initial ruling but within 30 days of the second order. Rembert, 89 Ill. App. 3d at 374.

On appeal, the defendant argued that the appellate court lacked jurisdiction to consider the State’s challenge to the initial order quashing the arrest and suppressing the physical evidence, as the notice of appeal was filed more than 30 days after that order. The appellate court disagreed, explaining that the relevant practice rules should be interpreted to discourage piecemeal appeals. Thus, the first ruling was not final and appealable because the trial court had yet to make a complete determination of the entire suppression matter. Only when the trial court did so, with its second order, did the 30-day period of Supreme Court Rule 606(b) begin to run. (Rembert, 89 Ill. App. 3d at 374-75; see also People v, Jackson (1979), 77 Ill. App. 3d 117, 121.) As more recent cases recognize, the crucial issue in determining if a given suppression order is immediately appealable under Supreme Court Rule 604(a) is whether the order grants all or only part of the relief that the defendant has requested. People v. Smith (1992), 232 Ill. App. 3d 121, 127; People v. Abata (1988), 165 Ill. App. 3d 184, 186-87.

We conclude that Judge Nelligan’s order of October 16, 1990, though nominally an “order granting collateral estoppel,” was in substance and effect a suppression order which granted defendant all the relief he sought in his September 28, 1990, motion to quash arrest and suppress evidence in case No. 90 — CF—-2011. The State concedes that all evidence defendant sought to suppress in case No. 90 — CF— 2011 was the product of the arrest that the trial court had earlier quashed. Defendant’s motion to apply collateral estoppel to case No. 90 — CF—2011 explicitly requested that this evidence be suppressed because the trial court had already determined that the police lacked both probable cause to arrest defendant and the exigent circumstances necessary to validate an in-home arrest even with probable cause.

By applying collateral estoppel to case No. 90 — CF—2011, Judge Nelligan held that the issues of probable cause and exigent circumstances, which had earlier been decided adversely to the State in case No. 90 — CF—1245, could not be relitigated in case No. 90 — CF—2011. The State does not deny that this procedure was entirely proper. (See, e.g., People v. Gaddis (1972), 4 Ill. App. 3d 691, 692.) The State does not argue that Judge Nelligan should not have applied collateral estoppel as he did. Indeed, in making the same argument for reversal as to each case, the State implicitly acknowledges the requisite identity of issues between the two proceedings. See generally Housing Authority v. Y M C A (1984), 101111. 2d 246, 252.

We will not elevate form over substance, so we conclude that the October 16, 1990, order of collateral estoppel was an immediately appealable suppression order in case No. 90 — CF—2011. The fact that the judge continued the cause for status is not material. A suppression order does not finally adjudicate a criminal prosecution, but only bars certain evidence from the impending trial. The order effectively quashed the arrest and suppressed evidence in case No. 90 — CF—2011 (see 134 Ill. 2d R. 604(a)), granting defendant all the fourth amendment related relief that he sought in that case. Therefore, the order was appealable immediately. By waiting more than 30 days to appeal from this order, the State has deprived us of jurisdiction to consider the trial court’s decision in case No. 90 — CF—2011.

The State argues that the order of October 16, 1990, was not appealable because the order “made no ruling on what the effect or applicability of collateral estoppel would be.” We find this argument strained. Defendant’s motion for collateral estoppel unambiguously requested that the trial court find that the issues of probable cause and exigent circumstances, among other issues, could not be relitigated. Based on this finding, defendant requested that the trial court quash the arrest and suppress the evidence in case No. 90 — CF—2011. Judge Nelligan’s October 16, 1990, order, drafted by counsel for the State, states that defendant’s motion for collateral estoppel “is granted.”

The State argues further that the October 16, 1990, order was not appealable under Rule 604(a) because it did not comply with the requirement of section 114 — 12(e) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1989, ch. 38, par. 114 — 12(e)) that it “state the findings of facts and conclusions of law upon which the order or judgment is based.” The State does not explain why any failure to comply with this statutory requirement affects determinations of jurisdiction or appealability under the supreme court rules. Insofar as the State requests us to infer that there is a conflict between the statute’s formal requirements and the straightforward meaning of Supreme Court Rule 604(a), we must either decline the invitation or hold that the rule controls. See People v. Felella (1989), 131 Ill. 2d 525, 538; People v. Lendabarker (1991), 215 Ill. App. 3d 540, 560.

Moreover, the State’s assertion that the order of collateral estoppel did not comply with section 114 — 12(e) is itself questionable. Although the order states only that the defendant’s motion for collateral estoppel is granted, that statement, by the very nature of collateral estoppel, incorporates the factual findings (and implicit legal conclusions) of the suppression order in case No. 90 — CF—1245.

We dismiss the appeal from case No. 90 — CF—2011 and turn to the merits of the State’s appeal from the trial court’s ruling in case No. 90 — CF—1245.

The State argues first that the trial court erred in quashing defendant’s arrest and in suppressing the fruits of that arrest. The State concedes that the Maywood police arrested defendant inside his residence without a warrant and without his consent. The State further recognizes that such a warrantless arrest requires both (1) probable cause and (2) exigent circumstances. (See Payton, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Foskey (1990), 136 Ill. 2d 66, 74-75.) Finally, the State acknowledges that a reviewing court will not reverse a trial court’s ruling on a motion to suppress unless that ruling is manifestly erroneous. (People v. Adams (1989), 131 Ill. 2d 387, 400.) “Manifestly erroneous” is commonly understood to mean “ ‘palpably erroneous and wholly unwarranted’ ” or “ ‘arbitrary, unreasonable, and not based upon the evidence.’ ” People v. Shelby (1991), 221 Ill. App. 3d 1028, 1039, quoting People v. Harris (1991), 220 Ill. App. 3d 848, 860.

We will forego an independent discussion of whether probable cause existed to arrest defendant. We find the trial court did not manifestly err in concluding that exigent circumstances did not exist to validate the warrantless arrest in defendant’s residence.

The fourth amendment prohibits the police from making a warrantless entry into a residence to effect a routine felony arrest. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) However, exigent circumstances may validate such an otherwise presumptively unreasonable entry. (Minnesota v. Olson (1990), 495 U.S. 91, 100, 109 L. Ed. 2d 85, 95, 110 S. Ct. 1684, 1690.) The State has the burden to show such exigent circumstances. (Foskey, 136 Ill. 2d at 75.) Because entry into the home is the chief evil against which the fourth amendment is directed, the State’s burden to show such exigencies is a heavy one. Welsh v. Wisconsin (1984), 466 U.S. 740, 749-50, 80 L. Ed. 2d 732, 743, 104 S. Ct. 2091, 2097; People v. Krueger (1991), 208 Ill. App. 3d 897, 907.

Exigency must be decided on the facts of each case, but courts regularly have considered (1) whether the offense under investigation has been recently committed; (2) whether there was any deliberate or unjustified delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense, particularly a crime of violence, was involved; (4) whether the suspect was reasonably believed to be armed; (5) whether the police acted upon a clear showing of probable cause; (6) the likelihood that the suspect would escape if not swiftly apprehended; (7) whether there was strong reason to believe the suspect was in the premises; and (8) whether the police entered peaceably. (People v. White (1987), 117 Ill. 2d 194, 216-17.) These factors are neither exclusive nor to be rigidly applied in each case. (White, 117 Ill. 2d at 217.) The guiding principle in each case is reasonableness. (People v. Abney (1980), 81 Ill. 2d 159, 173.) The State must show that circumstances militated against delay and justified the officers’ decision to proceed without a warrant. Foskey, 136 Ill. 2d at 75.

In arguing that the trial court should have found that exigent circumstances justified the officers’ decision to arrest defendant without a warrant, the State emphasizes the violent nature of the offense (armed robbery), the short time between the naming of defendant as a coparticipant in the armed robbery and the arrest, and the peacefulness of the entry and arrest. Defendant replies that there was no reason to believe that defendant was armed at the time of the arrest, as the weapon used in the robbery had been discarded. Defendant also claims that the trial court found there was no reason at the time of the arrest to fear that defendant would flee. The court found that the police could only guess that defendant would be at his Maywood residence, which was far from where the third suspect escaped pursuit. Defendant notes finally that the trial judge stated there was no reason that the police could not have obtained a warrant from an area magistrate for defendant’s arrest.

We conclude that the facts are not so one-sided that the trial court manifestly erred in holding that the State failed to meet its heavy burden to show exigent circumstances. Although the crime was serious, the police had recovered the weapon used in the attempted robbery. The preplea report states that witnesses told police a single weapon was used in the offense. The arresting officer admitted that, when defendant answered the door, the police could see that defendant was unarmed.

Moreover, the State has not challenged the trial judge’s findings that the police could only speculate that defendant would be at his Maywood residence a few hours after the escape at Lombard and that there was no likelihood of defendant’s flight from his home. As to these matters, we shall not assume the role of advocate for the State on appeal.

Finally, as the defendant notes, the trial judge stated on the record that he could see no reason why the police could not have obtained a warrant within a short time of moving against defendant. The trial judge concluded that this consideration made the officers’ action unreasonable, and we cannot call this conclusion manifestly erroneous.

Although each case must be decided on its own facts, two cases we have found are sufficiently similar to offer us guidance. In Minnesota v. Olson (Minn. 1989), 436 N.W.2d 92, aff’d (1990), 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684, two men participated in a robbery and fatal shooting at a service station early one Saturday morning. The police arrested the gunman as the latter fled from his house in his car with another man. Inside the gunman’s car, police found evidence that the defendant was the other man in the car. The next day, an informant telephoned the police that a man with defendant’s first name had been the second participant in the robbery and that the second offender was planning to leave town by bus. On that Sunday afternoon, the police, without a warrant, entered the residence where defendant was staying and arrested him. Olson, 436 N.W.2d at 93-94.

The Minnesota Supreme Court reversed the defendant’s conviction, holding that the trial court should have found that the police lacked exigent circumstances for the warrantless entry and arrest. The court observed initially that the police had quickly obtained a warrant to search the gunman’s car and that the mere fact that they arrested defendant on a Sunday rather than a Saturday was “surely a curious reason for not observing the constitutional safeguards of citizens.” (Olson, 436 N.W.2d at 96.) Conceding the gravity of the crime, the court stressed that the police had already recovered the murder weapon, that probable cause rested primarily on the words of an untested informant, and that the police had surrounded the house in which they arrested defendant. (436 N.W.2d at 97.) In affirming, the United States Supreme Court approved the State court’s application of the exigent circumstances doctrine to the facts of the case. Olson, 495 U.S. at 100-01,109 L. Ed. 2d at 95-96,110 S. Ct. at 1690.

In People v. Shelby (1991), 221 Ill. App. 3d 1028, the police arrested Shelby shortly after arresting a suspect who implicated Shelby in a murder and a burglary. The appellate court affirmed the trial court’s finding of a Payton violation. The court noted that the murder weapon had already been recovered; that the showing of probable cause was not clear; that the police had no reason to believe that Shelby was armed at the time of the arrest; and that the police had no reason to believe that Shelby would flee his house, as he had not yet done so two days after the murder. Shelby, 221 Ill. App. 3d at 1040-41.

The State argues last that, even if the trial court properly quashed defendant’s arrest, the cause should be remanded for a hearing at which the trial court could determine whether any of the statements taken from defendant after his arrest were purged of the taint of the illegal arrest.

We hold that the State has waived any such hearing by never requesting one, or otherwise raising the attenuation issue at the trial level. It is settled that the waiver rule applies to the State as well as the defendant. Adams, 131 Ill. 2d at 394-96; People v. Crespo (1991), 207 Ill. App. 3d 947, 950-51.

People v. Bates (1991), 218 Ill. App. 3d 288, on which the State relies, does not hold otherwise. In Bates, the trial court denied the defendant’s motion to quash arrest and suppress evidence. Reversing, the appellate court held that, on remand, the State would be entitled to an attenuation hearing. (Bates, 218 Ill. App. 3d at 298.) In Bates, in contrast to the case at bar, the trial court determined that the defendant’s arrest was proper. Therefore, the State never had any reason at the trial level to move for an attenuation hearing. Here, the trial court found that the defendant’s arrest was illegal. The State could have moved for an attenuation hearing and simply declined to do so. Therefore, the issue is waived.

The appeal in case No. 2 — 90—1407 is dismissed, and, in case No. 2 — 90—0998, the judgment of the circuit court of Du Page County is affirmed.

No. 2 — 90—0998, Affirmed.

No. 2 — 90—1407, Dismissed.

UNVERZAGT and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COLWELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. LINTZ, Defendant-Appellant.
    Second District
    No. 2 — 91—0960
    Opinion filed June 7, 1993.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Brian L. Buzard, of Mt. Morris (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendant, Michael Lintz, pleaded guilty to aggravated criminal sexual abuse (111. Rev. Stat. 1989, ch. 38, par. 12 — 16(d) (now 720 ILCS 5/12 — 16(d) (West 1992))) and was sentenced to six years’ imprisonment. Defendant appeals his sentence, contending that the court abused its discretion in sentencing him to one year less than the maximum term when he had no criminal record and there were other mitigating factors. We affirm.

Defendant was indicted on one' count of aggravated criminal sexual abuse and three counts of criminal sexual assault based on defendant’s conduct with C.G., who was at least 13 but under 18 years old when the conduct occurred and defendant was more than five years older than C.G. (See 111. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4) (now 720 ILCS 5/12 — 13(a)(4) (West 1992)).) The latter three charges were nol-prossed when defendant pleaded guilty to the sexual abuse charge. The trial court found as a factual basis that defendant placed his hand on the breasts and vagina of C.G., who was 16 years old at the time.

At the sentencing hearing, Investigator Mark Pleasant testified that he interviewed defendant on January 7, 1991, regarding his relationship with C.G. Defendant explained that he met C.G. when she was 14 or 15 years old and a student in the high school district where defendant was a substitute teacher and a bus driver. Defendant also was acquainted with the victim through a summer day camp where she had been employed and defendant was the assistant camp director. Defendant admitted to sexual contact with the victim going back to 1987, which progressed from kissing and hugging to fondling virtually every day during the summer of 1990 in the day camp bus. Defendant also admitted that he had sexual intercourse with the victim on August 13, 1990, and that he wore a condom to her house that day in the event they would engage in intercourse. Defendant was aware that C.G. was a special education student. Defendant informed Pleasant that the victim had sent defendant cards and letters and the relationship was mutual.

Pleasant further testified that defendant admitted that he had sexual contact with another teenage girl in 1972. Cathy was a 16-year-old high school student, and defendant was a teacher in a junior high school.

According to Pleasant, he interviewed defendant again on January 8, 1991. During this interview, Pleasant typed defendant’s statement, which defendant then signed. In the statement, defendant stated that he graduated from college in 1971 and became employed at a junior high school in Glendale Heights. Near the end of that school year, he “had [his] first problem, or affair, with a young female student,” Cathy. Defendant met her after a band performance. Cathy attended a different school from the one where defendant was employed. About two months after he met Cathy, defendant began kissing her. Defendant kissed her on another occasion. A few weeks later, in Cathy’s house, they were kissing and he became sexually aroused. Defendant rubbed her breasts and vagina, and Cathy rubbed his penis. “Something clicked inside [defendant’s] head at that point and [he] stopped what was happening because [he] knew it was wrong.” After that, defendant did not have any sexual contact with other young girls until he got involved with Lori Hahn (birthdate October 1969) and C.G. (birthdate December 1972).

In addition to the facts related to Investigator Pleasant on January 7, defendant stated that at the beginning of his relationship with C.G., in September 1987, she seemed to trust defendant and confided in him about her personal problems. She gave him hugs, but “it all seemed innocent.” Toward the end of the 1987-88 school year, “the hugs turned into small kisses,” and defendant became sexually aroused. The kissing occurred in defendant’s car while they were at a park. “Things sexually began to happen during the first week of camp.” C.G. had been hired as a camp counselor, and defendant was the assistant camp director and the camp bus driver. The incidents occurred in the morning on the bus, before defendant picked up the rest of the counselors. Defendant would park the bus, and he and C.G. “would kiss and pet each other.” Sometimes defendant put his finger in C.G.’s vagina, and she would masturbate him. Defendant related one incident in which C.G. performed oral sex on defendant. Defendant stated that he never performed oral sex on C.G., but she performed oral sex on him three times. Defendant explained:

“I believe that I got involved sexually with [C.G.] because things at home, sexually, were nonexistent. I was vulnerable. I believe I was starting to fall in love with her and I have always been a sucker for someone with a problem. [C.G.] had problems at home and was always looking for ways to get attention or some sympathy. I think I fell into that trap with her. I never told [C.G.] not to tell anyone about our relationship but I worried about it coming out. *** I never threatened [C.G.] or forced her to do anything in any way. She semmed [sic] to want the sex as much as I did. Nevertheless, I knew that my sexual relationship with [C.G.] was wrong and illegal. It was just a time where I was out of control and I could not stop it.”

Defendant also discussed his relationship with Hahn. Defendant met her in 1987 when she was a senior in high school and she rode defendant’s bus. They started having physical contact late in May 1989. The contact started with kissing and progressed into a sexual relationship. They had sexual intercourse several times during the summer and fall of 1989, usually in defendant’s car. On two occasions, in September and November 1990, they went to a motel. Hahn had been a special education student, and she had epilepsy which caused some brain damage.

At the end of the statement, defendant stated:

“I feel better now that I have talked about this situation. I have not told my wife the whole truth and I did not tell her anything until last night. I have not confided in anyone else about this but I have thought about talking to a social worker ***. *** In summary, I feel disappointed in myself, remorseful, I regret the incidents, and I want to take every possible step to insure that another incident like this never happens again. I feel surprised that [C.G.] told because she seemed to enjoy our relationship.”

Pleasant testified that later on January 8 defendant contacted the Lake County Children’s Advocacy Center and gave an additional statement relating another incident with C.G. which defendant had forgotten to mention. The following morning, defendant called Pleasant. Pleasant asked defendant if he had ever been arrested. Defendant informed Pleasant that defendant had been arrested at Children’s Memorial Hospital for masturbating in the cafeteria. Pleasant then requested that defendant come to the police department to continue the discussion.

Defendant went to the police department and admitted that he had not been entirely truthful with the police. Defendant then admitted that he had sexual contact with six teenage girls, both at the camp and at various locations in Lake County. Defendant also related an incident in 1980 at a store where he had gotten aroused by the sight of a woman’s foot and had begun to masturbate. He stopped after he was confronted by another female shopper. A similar incident occurred in 1986 at Northbrook Court Mall. Defendant was in the dining area and became aroused after looking at a woman’s foot. Defendant masturbated, and a security guard asked him to leave. Defendant discussed in greater detail the incident at the hospital. According to defendant, in 1983 he was in the cafeteria at the hospital when he became aroused by looking at a woman’s foot. Two security guards arrested him after he began masturbating. Defendant went to court, but no one showed up to testify against him, and “nothing came of it.”

Defendant also admitted that he had been attracted to several 15- or 16-year-old girls: one in 1979 who “came on to him,” one in 1983, whom 'he fondled, and one in 1989, whom he hugged and kissed. In 1990, defendant “rubbed the buttocks” of a 15-year-old he met at the camp.

Defendant was attracted to females age eight and up, in addition to having a foot fetish. Defendant admitted to Pleasant that in the cafeteria at the high school there were occasions when he “looked at the feet of female staff and students, had become aroused, and had masturbated.” On at least one occasion, defendant peeked into the girl’s shower at the camp and became aroused. In the course of his duties as pool director, he gave swimming lessons to young girls and became aroused by their feet.

According to the presentence report, defendant was 42 years old and had a bachelor of arts degree in secondary education. Defendant first was employed as a band director at a junior high school in 1971. Defendant worked at the day camp during the summers from 1969 to 1990. From 1980 through 1990, defendant was a school bus driver and a teacher’s aide for a high school district. He was terminated from these positions. Defendant’s criminal record consisted of two traffic violations. Defendant was first married in 1972 and divorced in 1981. Defendant had a son from his first marriage, who was 15 years old at the time of the sentencing. Defendant remarried in June 1985, and the second marriage broke up as a result of the offense at issue. During the marriage, his second wife was unaware of defendant’s deviant sexual behavior. According to the presentence report, defendant’s girlfriend was Lori Hahn, age 20. Hahn stated that defendant was “ ‘a great guy who wouldn’t do anything to anyone to hurt them.’ ” Hahn also stated that she and defendant were planning to get married. Hahn had been a special education student. Hahn’s father contacted the probation officer and indicated that he was very concerned about his daughter seeing defendant. Mr. Hahn provided the probation officer with documents which stated that Hahn was mentally disabled and had an IQ of 71. Mr. Hahn reported that defendant continually called and visited with Hahn.

In the victim impact section of the report, C.G. stated that defendant was like a father figure to her and she trusted him. Defendant took advantage of her when she was vulnerable and broke her trust. C.G. experienced nightmares as a result of her relationship with defendant, and her relationship with her mother became strained. C.G. described the incident as “very disturbing.”

The presentence report further stated that defendant had been in the Army Reserves and was discharged honorably in 1977. The report recommended that defendant be committed to the Department of Corrections to protect the community and deter others from committing similar crimes. In the event that the court decided against incarceration, the presentence report recommended a term of periodic imprisonment and that defendant have no unsupervised contact with children, not be involved in any occupation involving the care of children or working with developmental^ or intellectually disabled adults, and that defendant attend additional counseling.

Also in the record is a copy of a clinical assessment by Jeffery Martin of the Community Youth Network. Martin noted that defendant admitted to having a variety of sexual contacts with seven children, ranging in age from 15 to 18, over a 20-year period. Defendant initiated contact with the children “in an authoritative capacity as a teacher, bus driver or assistant camp director.” Defendant began by getting the child into an isolated situation where he made general sexual advances. If the child was receptive, he pursued and escalated the involvement. Defendant had sexual intercourse with two of the girls, both special education students. However, one of them was 20 when they first had intercourse. Martin concluded that it was “highly probable” that a pattern of deviant sexual behavior existed which spanned a 20-year period. In addition, Martin noted that although defendant said he was responsible for the sexual relationships, defendant ascribed “a good deal of [the] blame onto his victims.” Defendant stated that he did not force, manipulate, or coerce any of the children to participate in sexual activities with him. “He viewed all children as willing participants in the sexual behavior.”

In addition to the three masturbation incidents, defendant also was confronted in 1987, when he hugged a student on his bus. Defendant’s reaction to these confrontations was feeling uncomfortable with the situation and not wanting anyone to think anything was going on.

Defendant was not direct in discussing his sexually deviant behavior, but revealed the information in bits during the course of the three interviews. Defendant expressed an interest in understanding his motivation for being sexually involved with children and in modifying and changing himself to stop his sexual acting out. However, Martin stated that defendant’s motivation for wishing to discontinue the sexual acting out appeared to be defendant’s legal difficulties.

Martin considered defendant an appropriate candidate for sex offenders specific treatment based on defendant’s willingness to accept responsibility for his behavior; his admitting guilt; his interest in and understanding of his problems; his insight into his deviant sexual behavior and his motivation to make changes; his sensitivity to his victims and understanding of the impact of his actions on his victims; and because the psychological testing did not suggest the presence of a mental illness or psychosis. However, Martin had concerns regarding defendant’s treatment affecting the safety of the community. Specifically, Martin noted that defendant had an extended and lengthy history of deviant arousal patterns and acting out. In addition, “[i]n spite of being confronted on [sic] his sexual acting out on at least four occasions, he has persisted in responding to sexually deviant arousal patterns.” Defendant’s attitude suggested a “strong emotional congruence to being sexually involved with minor children.” Defendant showed little regard for the age of the children or that they were involved in special education. Finally, Martin noted that defendant showed “a heightened level of immaturity,” which indicated that defendant was likely to continue to be more comfortable with children than with adults.

A psychological evaluation, conducted by a clinical psychologist, concluded that defendant’s behavior followed a cyclical pattern characterized by periods of acting out followed by periods of guilt and remorse in which defendant appears contrite and well controlled. The report stated that defendant appeared to be in the latter phase and the guilt and remorse defendant was expressing would not effect any change in his behavior.

The intensive probation supervisor for Lake County sent a letter to the court stating that defendant could not participate in that program because he could not reside in Lake County. The deputy chief probation officer for the intensive probation program in Cook County, where defendant resided, rejected him because “Defendant would present a danger to the Community.”

In mitigation, Sandy Gordon Stiebel testified that she knew defendant for over 20 years through their employment at the day camp. Stiebel stated that defendant was one of the finest people she knew and was reliable. Stiebel did not believe that defendant was a risk to society, and she had never seen him exhibit any violent tendencies. Stiebel was convinced that defendant would never molest children again.

Defendant’s father testified that defendant’s mother died shortly before the sentencing hearing and defendant’s father relied on defendant. In addition, defendant’s father stated that defendant had never been violent and he was always truthful. Defendant’s father believed that defendant would abide by any terms of probation the court imposed on him.

Defendant testified that he went to the Community Youth Network after his arrest on January 10, 1991. Defendant sought counseling, and he was accepted into the program there. Defendant believed that he would benefit from the program. He stated that he would be able to abide by any requirements of probation and that he would stay away from children. Defendant was supporting his son by working at a messenger service. Defendant stated that as a result of his arrest he and his second wife were divorced in February 1991.

Defendant submitted letters written in his behalf. These letters from friends emphasized defendant’s volunteer work for muscular dystrophy and other charities. They also described defendant as warm, caring and compassionate. Defendant also submitted letters and cards he received from C.G.

In allocution, defendant admitted responsibility for his conduct with C.G., and he regretted what he had done. Defendant noted that he lost his job with the school district, his license to drive a school bus, his ability to work at the day camp, his marriage and his mother. Defendant stated that he learned “a very cold, hard lesson,” and he accepted the reality of his situation. Defendant reiterated his intention to cooperate with any probation program and that he would never commit another offense.

The State argued for the maximum term of imprisonment to protect the public. Defense counsel responded that incarceration would not protect the public because it would not help defendant overcome his problem. Defense counsel stressed that defendant needed counseling and treatment, which would be available if defendant were sentenced to probation.

In response to defense counsel’s argument that no weapon or threat of force was used in the offense, the trial court stated:

“[Tjhere is some argument relative to the use of a weapon, and perhaps whether or not this is a crime of violence. I take it there shouldn’t really be any question of that any more that someone in his position of authority, school teacher and educator, using that position as a teacher, educator, for his own sexual gratification, in particular with special education students, God, if that is not an act of violence, I really don’t know what is.”

The court also noted that defendant’s acts had a negative effect on the girls’ social development, and it emphasized that some of them were in special education programs. The court found that defendant’s rehabilitative potential was slight because, when defendant was confronted four times, he continued to act out sexually. On the factor of defendant’s remorse, the court remarked that defendant showed little consideration for the ages of the children or the fact that two of them were special education students. The only factor in mitigation was defendant’s lack of a criminal record. The court concluded that the protection of the public was the most important factor.

Defendant filed a motion to reconsider the sentence. The court denied the motion, and defendant timely appealed.

Defendant first argues that the court erred in considering whether a weapon was used in the offense and whether the offense was violent. However, the court did not state that it believed that a weapon was used in the offense. The court was incorrect in finding that the crime was one of violence. The State responds that any error in this regard is harmless. The main reason the court determined that defendant should be incarcerated was the court’s concern for the safety of the public. We therefore agree with the State that we need not remand the cause for resentencing. See People v. Bourke (1983), 96 Ill. 2d 327, 332.

Defendant next argues that the court erred in finding that defendant’s conduct destroyed the girls’ chances at normal development. Although no evidence was introduced to show what harm defendant inflicted on any of the girls other than C.G., “any sexual abuse, regardless of its extent, causes harm to the victims” (People v. Dugan (1992), 237 Ill. App. 3d 688, 701). Defendant further argues that the court should not have relied on the fact that C.G. and Hahn were special education students. However, the remark was made in passing and was not the primary focus of the trial court’s analysis. Moreover, in the context of whether defendant was remorseful, that defendant selected special education students was relevant because these girls already had problems, and defendant exploited their problems to get close to them. Thus, the court did not err in considering that C.G. and Hahn had been special education students.

Finally, defendant argues that the six-year sentence was excessive. Defendant asserts that he should have been sentenced to probation and treatment. The psychological reports and the presentence report recommended strict limitations on probation if the court chose that option. However, intensive probation was not an option because the Cook County probation department concluded that defendant was not appropriate for intensive probation and defendant was unable to reside in Lake County. Thus, the court could not sentence defendant to a term of probation.

Defendant further asserts that even if the court could sentence him to a term of incarceration, the court abused its discretion by sentencing him to a term one year short of the maximum. The determination of a sentence is a matter of the trial court’s discretion, and we will not vacate or modify a sentence unless the trial court abused its discretion. (People v. Gonzalez (1992), 151 Ill. 2d 79, 89.) When the sentence imposed is within the statutory limits, the reviewing court will not modify it unless “the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account.” (People v. Luna (1992), 234 Ill. App. 3d 544, 550.) The sentence here falls within the statutory range of three to seven years. See Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 16(d) (now 720 ILCS 5/12— 16(d) (West 1992)), 1005 — 8—1(a)(5) (now codified, as amended, at 730 ILCS 5/5 — 8—1(a)(5) (West 1992)).

We reject defendant’s argument that the sentence should be vacated because the court did not consider as factors in mitigation that he served honorably in the military reserves, he participated in volunteer work for charity, and he supported his son financially. The trial court is not obligated to recite each factor it considered. (People v. Caraballo (1992), 231 Ill. App. 3d 685, 689.) Where the defendant presented mitigating evidence in the sentencing hearing, the reviewing court will presume that the sentencing court considered it, absent some indication to the contrary. People v. Chandler (1992), 231 Ill. App. 3d 110,116.

Although the trial court discussed various factors in aggravation, the primary factor for the six-year sentence was the protection of the public. The trial court properly considered defendant’s lengthy history of sexually abusing teenage girls by using a position of authority to gain their trust. (See People v. Williams (1992), 149 Ill. 2d 467, 490-91.) A trial court need not place greater weight on a defendant’s rehabilitative potential than on the seriousness of the offense and the need to protect the public. (People v. McDonald (1992), 227 Ill. App. 3d 92, 100.) Although defendant may have been remorseful, one of the psychological assessments indicated that this remorse was part of a cycle in which defendant would return to his deviant behavior, and his remorse would have no effect. The reports also stated that defendant was attracted to girls as young as eight years old, and he considered any child as a willing participant in sexual activities. The trial court concluded that the only significant factor in mitigation was defendant’s lack of a criminal record. The six-year sentence reflects the court’s determination of the balance of the factors.

Although we might have weighed the sentencing factors differently and imposed a different sentence, we must defer to the trial court’s decision because it had the opportunity to consider, firsthand, defendant’s credibility, demeanor, and general moral character. (People v. Streit (1991), 142 Ill. 2d 13, 19.) We decline defendant’s invitation to compare his sentence with the sentences imposed in other cases because the proper penalty must be based on the particular circumstances of the individual case, including the nature of the offense and the character of the defendant. (People v. Saldivar (1986), 113 Ill. 2d 256, 268-69.) Based on all the evidence presented at the sentencing hearing, we conclude that the trial court did not abuse its discretion in sentencing defendant to six years’ imprisonment.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
      In re E.R.E., a Minor (The People of the State of Illinois, Respondent-Appellee, v. E.R.E., Petitioner-Appellant).
    Second District
    No. 2 — 92—0146
    Opinion filed June 11, 1993.

      Michael J. Salvi, of Salvi, Salvi & Wifler, of Lake Zurich, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

E.R.E. (the minor) was adjudged delinquent by the circuit court of Lake County for having committed the offense of aggravated criminal sexual abuse (111. Rev. Stat. 1991, ch. 38, par. 12 — 16(c)(2)(i) (now 720 ILCS 5/12 — 16(c)(2)(i) (West 1992))). He appeals, bringing 10 allegations of error, nine of which we will not recite because the adjudication must be reversed due to a failure to prove that the minor’s conduct was done for his sexual gratification.

The minor is the uncle of the victim; the minor’s older brother is the victim’s father. The minor was born on December 29, 1979, and the offense was alleged to have occurred between July 1990 and September 1991, when the minor was 11 and 12 years old. The victim was approximately six years old when the offense allegedly occurred. The minor was originally charged with three counts of aggravated criminal sexual abuse and one count of aggravated criminal sexual assault. Three of the four counts concerned the victim, while one abuse count concerned the victim’s younger sister. The trial court dismissed three of the four counts after the close of the State’s case. The count for which the minor was adjudicated responsible alleged that the minor knowingly touched the victim’s vagina for the minor’s sexual gratification.

The victim testified that she was seven years old at the time of trial and she answered various questions establishing that she knew the difference between the truth and lies. She stated that the minor was her uncle and, when asked what the minor did to her, said that he told her “scary monsters.” At this point in the proceedings, the trial judge stated that the victim had asked to tell her story to the judge in the judge’s office. The judge arranged for the victim to give her testimony in chambers, with counsel for both sides present but with the minor excluded.

Once in chambers, the victim testified that the minor had touched her on her “private” once, over her underwear. She pointed to the vaginal area on a doll when asked where her “private” was. She stated that her pants were on when the touching occurred.

On cross-examination, the victim stated that the touching had occurred in the basement living room of her grandparents’ house. She denied that her mother had instructed her to falsely accuse the minor of touching her and testified that she told her mother of the minor’s actions on the same day they occurred. The victim also related that the minor had told her not to tell anyone when he touched her.

The victim’s mother also testified. She stated that in August 1990, the victim’s sister approached her and said that the minor was touching the victim’s “pee-pee.” The sister also told her mother that the minor had made the victim put her mouth on his “pee-pee” and that he put his “pee-pee” “by” the victim’s “pee-pee.” The mother then stated that she called the victim in the house, who denied the incident and said that the minor was doing those things to her sister. The sister then denied any touching. The victim subsequently stated that some touching had occurred between her and the minor. The mother then took the children across the street to tell their story to their grandparents, the minor’s parents. The mother did not call the police or the Department of Children and Family Services at that time because she was afraid of what her husband would do to her if she did. The mother later told a DCFS worker about the allegations while the worker was at the mother’s home for a visit. The mother stated that the victim and her sister told her that the touching had occurred in the minor’s bedroom. After the incident complained of, the mother allowed her daughters to continue to go to their grandparents’ house, which was also where the minor lived. The mother testified that she had to let the children go to their grandparents’ home or she would be “in trouble” with her husband.

The defense presented the testimony of the minor’s brother, who was also the victim’s father. He stated that he and the victim’s mother had been in the midst of a divorce since August 1990 and that he was seeking custody of his children. He also testified that, since August 1990, the victim had never complained to him that the minor had touched her private parts.

The minor’s mother testified next. She stated that the victim’s mother had brought the victim and her siblings over to her house to be baby-sat many times after the alleged incident occurred. She also stated that she had never seen the minor touch the victim’s or her sister’s genital areas. She testified that the victim’s mother had come to her house one day and told her that the minor had been abusing the victim and her sister. The minor’s mother then called the minor into the room and asked him why he would do such a thing to “his own blood.” At this point the victim’s mother either laughed or grinned “like it was a joke” and left with her daughters.

Finally, the minor testified. He stated that he knew what male and female private parts were. He denied ever touching the victim or her sister and stated that he had never taken their pants off. On cross-examination, the minor stated that he had never played with the victim or her sister without an adult present in the immediate area. The minor further testified that he had previously threatened the victim and her sister with physical harm when they used his Nintendo games and got them dirty.

After closing arguments, the court found the minor responsible for the remaining count of aggravated criminal sexual abuse. The minor was adjudicated a delinquent minor, made a ward of the court, and placed on probation for 12 months with various conditions. He filed a timely appeal.

The minor argues that the adjudication of delinquency must be reversed because the State did not prove an essential element of its case, that the minor touched the victim for his sexual gratification. The minor cites no authority for his claim, but the State’s Attorney, to her credit, provides us with a case on point and favorable to the minor. The State argues that the minor’s failure to cite authority should result in waiver of the issue. In the alternative, the State claims that we should not follow In re A.J.H. (1991), 210 Ill. App. 3d 65, the case that supports the minor’s position.

Generally, a point raised in an appellate brief but not accompanied by any citation to authority is waived. (134 Ill. 2d R. 341(e)(7); People v. Carpenter (1992), 228 Ill. App. 3d 899, 904-05.) However, we may consider an error which has not been properly preserved for review when the evidence is closely balanced, as it is in this case. People v. Torres (1977), 47 Ill. App. 3d 101,106.

In order to have been found responsible for committing aggravated criminal sexual abuse, the State had to prove beyond a reasonable doubt (see In re Urbasek (1967), 38 Ill. 2d 535) that the minor committed an act of sexual conduct with a victim under the age of nine at the time of the offense. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(c)(2)(i) (now 720 ILCS 5/12-16(c)(2)(i) (West 1992)).) “Sexual conduct” is defined as “any intentional or knowing touching or fondling by *** the accused, either directly or through clothing, of the sex organs, anus or breast of the victim ***, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” (111. Rev. Stat. 1991, ch. 38, par. 12 — 12(e) (now 720 ILCS 5/12 — 12(e) (West 1992)).) The petition for adjudication of wardship filed against the minor alleged that he touched the victim’s vagina “for the purpose of the sexual gratification of the minor.”

As the State acknowledges, support for the minor’s position exists in a recent case from this court, In re A.J.H. (1991), 210 Ill. App. 3d 65. We find that case dispositive.

In In re A.J.H., a 13-year-old girl was accused of aggravated criminal sexual abuse for touching the penis of a five-year-old boy for whom she baby-sat. The victim had testified that the minor had touched his penis, skin-to-skin, for four to five seconds and then told him not to tell anyone. (A.J.H., 210 Ill. App. 3d at 67-68.) The State argued in A.J.H., as it does here, that the above evidence was sufficient to infer the requisite sexual intent. We rejected that claim, noting that “it is not justified to impute the same intent into a child’s action that one could reasonably impute into the actions of an adult.” A.J.H., 210 Ill. App. 3d at 72.

Here, the evidence is even weaker than that presented in A.J.H., in that there is no testimony regarding the length of the alleged touching. Further, the minor here was two years younger than the baby-sitter in A.J.H. when the offense allegedly occurred. Given also that the touching allegedly occurred over the victim’s underwear and while the victim’s pants were on, it does not necessarily follow beyond a reasonable doubt that the claimed contact here was done to sexually gratify the minor.

We continue to follow our decision in In re A.J.H., which requires reversal in this case for failure to prove the sexual intent element of aggravated criminal sexual abuse.

Reversed.

DOYLE and COLWELL, JJ., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA JONES, Defendant-Appellant.
    Second District
    No. 2 — 91—0916
    Opinion filed June 7, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, and Sherry R. Silvern, of Aurora, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and James W. Ackerman, of Ackerman Law Office, of Springfield (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

A Du Page County grand jury indicted the defendant, Barbara Jones, for retail theft and obstructing justice. Following a bench trial, the court convicted Jones of retail theft. The court subsequently denied Jones’ motion for a new trial, and it sentenced her to a term of imprisonment of three years.

Jones contends that the trial court erred in convicting her of retail theft because: (1) the indictment alleged that Jones conveyed a comforter to a merchant in exchange for currency, but the evidence at trial established that Jones received a refund slip, not currency, in exchange for the property; (2) the State’s failure to disclose Jones’ alleged statements to a store clerk violated Supreme Court Rule 412(aXii) (134 111. 2d R. 412(a)(ii)); and (3) the State failed to lay a proper foundation for the introduction of the comforter into evidence. We affirm the trial court.

Jones testified at trial that when she entered the Carson, Pirie, Scott and Company (Carson’s) at Yorktown in Lombard, Illinois, on November 26, 1989, she had a comforter set in her possession. Jones stated that the comforter set was a gift from her aunt, Emma James, and that there was a gift sticker inside the plastic on top of the set. However, according to salesclerk Jan Benda’s testimony, Jones told Benda that her name was Mrs. James and that she wanted to return a comforter set. Benda looked at the comforter set, then began to fill out a cash refund form for $299.60. Benda asked Jones for a driver’s license, and Jones presented the driver’s license of Emma James. Benda wrote down the name, address and license number. She then returned the license to Jones, who signed the name “Emma James” to the refund slip. Benda told her manager, Dawn Hershberger, that she had a return from another store with no receipt. Hershberger signed the refund slip.

Lane Hoover and Christine Raft, who were security guards for Carson’s, also testified that they saw Jones pick up the comforter from a display of merchandise that was offered for sale. Jones then set the comforter near a cash register and walked around the store for a few minutes. When Jones returned to the register, she picked up the comforter and presented it to Benda for a refund. Hoover and Raft subsequently escorted Jones to a security office. After the arrival of a police officer, Jones was taken into custody.

Following a bench trial, Jones was convicted of retail theft. The trial court denied Jones’ motion for a new trial and sentenced her to a term of three years’ imprisonment upon the conviction. Jones appeals her conviction.

Jones’ first argument is that the State’s proof at trial did not conform to the charge in the indictment. The indictment alleged that Jones committed retail theft on November 26, 1989, in that:

“said defendant knowingly falsely represented to Janice L. Benda, an employee of Carson, Pirie, Scott & Company, 230 Yorktown, Lombard, Du Page County, Illinois, that she, the defendant, was the lawful owner of a comforter with the full retail value in excess of $150.00, and conveyed the comforter to said employee of Carson Pirie Scott, who was in fact the lawful owner of such comforter, in exchange for $299.60 United States currency, in violation of Illinois Revised Statutes 1987, Chapter 38, Section 16A— 3(f).”

Jones contends that the State’s evidence established only that she conveyed a comforter set in exchange for a refund slip, not currency, and therefore her conviction should be reversed.

The State argues that Jones waived the issue of the variance between the indictment and proof because she did not object to the indictment before trial or in her post-trial motion. We reject the waiver argument. A challenge to the sufficiency of the charging instrument may be raised for the first time on review. People v. Vaughn (1985), 136 Ill. App. 3d 342, 345.

Jones argues that this case is like People v. Daniels (1979), 75 Ill. App. 3d 35. There, the indictment returned by the grand jury against the defendants charged that they “ ‘by the use of force and while armed with a dangerous weapon, took an amount of United States Currency (the exact amount of which is unknown to said Grand Jurors) from the person and presence of Michael Coleman.’ ” (Daniels, 75 Ill. App. 3d at 40.) At trial, though, the only proof offered in connection with the robbery concerned the taking of a watch. The court held that “[i]n a criminal trial, it is the burden of the prosecution to prove beyond a reasonable doubt all material facts of the offense as charged by the indictment. [Citations.] By utterly failing to introduce proof to conform to the charge in the indictment, the State failed in its burden of proof at trial.” People v. Daniels, 75 Ill. App. 3d at 40.

However, a variance between the crime charged and the crime proved is not fatal to the conviction unless the variance is material and it misleads the accused in making her defense or exposes her to double jeopardy. (People v. Borst (1987), 162 Ill. App. 3d 830, 834.) Unlike People v. Daniels, the variance between the charge that Jones exchanged a comforter for currency, and the proof that she in fact received a refund slip, is not so material as to necessitate a new trial. Benda testified that she told Jones that the cash refund slip can be used like cash in any of Carson’s stores or it can be cashed in for a full refund. Under these circumstances, we fail to see how Jones would have prepared her defense any differently had the indictment stated that she had exchanged the comforter for a cash refund slip instead of currency.

Further, Jones’ theory of defense at trial was that the comforter set was a gift and that she had it with her when she entered Carson's. Thus, Jones disputed the State’s argument that she was not the lawful owner of the property. Jones’ defense had nothing to do with whether she received a refund slip or currency in exchange for the comforter' set. We conclude that Jones was not misled in preparing her defense.

Nor was Jones exposed to the possibility of double jeopardy. The indictment names the offense, the place and the date. If any future prosecution were attempted, prior prosecution on the same facts may be proved by resort to the record. People v. Johnson (1976), 65 Ill. 2d 332, 339.

Jones’s next argument is that the trial court erred in admitting Benda’s testimony that Jones identified herself as Mrs. James. Jones contends that the State’s failure to disclose this statement violated Supreme Court Rule 412(a)(ii). (134 Ill. 2d R. 412(a)(ii).) That rule provides that the State shall disclose to defense counsel:

“[A]ny written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” 134 Ill. 2d R. 412(a)(ii).

The State contends that it complied with Rule 412(aXii) by disclosing that it intended to call Benda as a witness at trial. The purpose of Rule 412(aXii) is to protect a defendant from surprise and inadequate preparation at trial by allowing defense counsel to investigate the circumstances surrounding any statements. (.People v. Sieflce (1990), 195 111. App. 3d 135, 140.) Compliance with the rule is mandatory and requires the State to disclose all statements known to it, even if the statements were not actually reduced to writing. (People v. Siefke, 195 Ill. App. 3d at 140-41.) The State’s failure to disclose Jones’ statement to Benda violated Rule 412(aXii).

However, a new trial should only be granted when the discovery violation prejudiced the defendant and the trial court failed to eliminate the prejudice. (People v. Siefke, 195 Ill. App. 3d at 142.) Jones claims that the State’s failure to comply with Rule 412(aXii) was prejudicial. In a prosecution for retail theft, one element which the State must prove is that the accused falsely represented to a merchant that she was the owner of property. (111. Rev. Stat. 1987, ch. 38, par. 16A— 3(f).) Jones claims that her alleged statement identifying herself as Mrs. James went directly to the element of false representation and was the only evidence that Jones so identified herself before obtaining the refund slip.

We do not agree that the admission of Jones’ statement to Benda is so prejudicial as to necessitate a new trial. Lane Hoover and Christine Raft, the two security guards at Carson’s, testified that they saw Jones pick up the comforter from a display of merchandise offered for sale. Hoover testified that Jones presented the comforter for a cash refund. Jones testified that she presented Emma James’ driver’s license as identification and signed the refund slip with the name “Emma James.” Jones also testified that she never told Benda that her name was actually Barbara Jones or that she was just putting down her aunt’s name. Thus, even without Jones’ statement identifying herself as Mrs. James, the evidence was sufficient to establish that she falsely represented herself to be the owner of the comforter.

Jones claims that the prejudicial effect of the statement was compounded when the trial court sustained the State’s hearsay objection to her testimony that another salesclerk told her to ask for Benda. However, Jones provides no indication how the prejudicial effect was so compounded. Further, the court did not err in sustaining the hearsay objection, as Jones’ testimony about the salesclerk’s out-of-court statement was offered for the truth of the matter asserted. In re T.D. (1983), 115 Ill. App. 3d 872, 875.

Jones’ final argument is that the trial court erred in admitting the comforter set into evidence because the State did not lay a proper foundation authenticating the set. However, Jones did not object to the admission of the comforter set at trial. In order to preserve a question for review, there must be both an objection to the evidence at trial and a written post-trial motion raising the question of the objected-to evidence. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Jones’ failure to object at trial to the admission of the comforter set results in a waiver of that issue on appeal.

For the foregoing reasons, we affirm the trial court.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE HAAG

text:
    LINDA ZIMMERMAN, Plaintiff-Appellant, v. BUCHHEIT OF SPARTA, INC., Defendant-Appellee.
    Fifth District
    No. 5 — 92—0611
    Opinion filed June 10, 1993.

      Harriet H. Hamilton, of Cook, Shevlin, Ysursa, Brauer & Bartholomew, Ltd., of Belleville, for appellant.
    David R. Smith, of Nehrt, Sachtleben, Fisher, Smith & Kerkhover, of Chester, and John W. Grimm, of Limbaugh, Russell, Payne & Howard, of Cape Girardeau, Missouri, for appellee.
   JUSTICE HAAG

delivered the opinion of the court:

Plaintiff, Linda Zimmerman, appeals from a judgment of the circuit court of Randolph County, which dismissed the plaintiff’s complaint pursuant to section 2 — 615(b) of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 615(b)) for failure to state a cause of action. The sole issue raised on appeal is whether the court erred in granting the defendant’s motion to dismiss.

The allegations contained in plaintiff’s complaint must be taken as true for purposes of a section 2 — 615 motion to dismiss. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) In her complaint, plaintiff alleges that on or about December 30, 1990, she was employed by the defendant and was injured in the course of her employment. Thereafter, plaintiff notified the defendant of her intention to seek workers’ compensation benefits. She alleges that in retaliation for exercising her rights pursuant to the Workers’ Compensation Act (Act) (111. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.), she was demoted and her work time was reduced. Plaintiff claims damages in lost income and benefits resulting from defendant’s actions.

Defendant moved for the dismissal of plaintiff’s complaint, arguing that no cause of action exists for retaliatory demotion or any other retaliatory action, except discharge. The trial court dismissed plaintiff’s complaint and this appeal ensued.

The tort of retaliatory discharge was first recognized as a cause of action in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and was designed to prevent an employer from abridging an employee’s rights under the Workers’ Compensation Act. In Kelsay, an employee was discharged in retaliation for filing a workers’ compensation claim against her employer. The court held that the cause of action was necessary to prevent the public policy behind the enactment of the Workers’ Compensation Act from being frustrated. The court described our workers’ compensation statutes as humane and of a remedial nature. They provide for “efficient remedies for and protection of employees” and thus promote the general welfare of the State. The court, therefore, concluded that this public policy warranted protection by the courts. Kelsay, 74 Ill. 2d at 181, 384 N.E.2d at 357.

The supreme court again considered the doctrine of retaliatory discharge in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. In contrast to Kelsay, the employee in Palmateer was not asserting rights pursuant to the Workers’ Compensation Act. Rather, he was discharged in retaliation for reporting information to the police concerning possible criminal conduct by a fellow employee and for agreeing to assist the police in their investigation. The supreme court held that under those circumstances, a cause of action for retaliatory discharge was necessary to ensure that the public policy behind the enactment and enforcement of the criminal code was protected.

The tort of retaliatory discharge protects the basic ability to exercise the right to file a claim under the Workers’ Compensation Act. (Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935.) The employee in Darnell was discharged because she had filed a workers’ compensation claim against a prior employer. The supreme court stated: “We perceive no distinction between the situation where an employee is discharged for filing a workers’ compensation claim against the defendant employer and one where the employer discharges the employee upon discovering that the employee had filed a claim against another employer. In either situation a retaliatory discharge is equally offensive to the public policy of this State as stated in the Workers’ Compensation Act.” 105 Ill. 2d at 161-62, 473 N.E.2d at 937.

In Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 519 N.E.2d 909, the tort developed further when the court held that a cause of action existed for an employee who had involuntarily resigned. It held that the plaintiff’s resignation was equivalent to a discharge where she was directed by her employer to sign a voluntary-resignation form after the employee requested medical attention for a work-related injury.

Hinthorn sets forth the three elements necessary to state a valid cause of action for retaliatory discharge. A plaintiff must demonstrate (1) that she was discharged, (2) that the discharge was in retaliation for her activities, and (3) that the discharge violates a clearly mandated public policy.

In the case before us, there has been no allegation of an actual discharge or an involuntary resignation. Plaintiff argues that an employee should have a private cause of action against an employer for an employer’s retaliatory actions short of termination when the employee exercises rights under the Workers’ Compensation Act. Plaintiff relies, more specifically, on section 4(h) of the Act, which provides:

“It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.
It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 48, par. 138.4(h).

Defendant argues that only a discharge is actionable under existing law. The supreme court has not yet addressed this issue with respect to cases involving rights asserted pursuant to the Workers’ Compensation Act.

In Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 601 N.E.2d 720, the court declined to expand the tort to encompass a retaliatory discharge “process” as alleged by the plaintiff. The court reasoned that the plaintiff was not threatened with a loss of employment. At the time of Illinois Power’s directive to plaintiff instructing him to begin a job search, the plaintiff was not working but was collecting temporary total disability (TTD) benefits. The court rejected the plaintiff’s attempt to characterize the threatened loss of TTD benefits as a loss of employment. The court pointed out that Illinois Power’s directive was not accompanied by conduct or statements which indicated a prohibited discriminatory intent on the part of Illinois Power. (Hartlein, 151 Ill. 2d at 160, 601 N.E.2d at 729.) It was reasoned that, although Kelsay prohibits an employer from utilizing an employee’s job as leverage to condition the exercise of rights under the Act, Kelsay did not prohibit the threatened loss of TTD benefits. Hartlein, 151 Ill. 2d at 165, 601 N.E.2d at 731.

In the instant case, plaintiff has alleged, and it must be taken as true, that she has been demoted and her hours have been reduced because she asserted her rights pursuant to the Workers’ Compensation Act. Section 4(h) prohibits the activities plaintiff has alleged in her complaint. The actions alleged also directly affect plaintiff’s employment, which distinguishes these facts from the Hartlein case. Plaintiff has suffered a loss of income and employment, but not a termination of her employment. We see little difference between retaliation by loss of employment by termination and retaliation by reduction in hours and demotion. If the allegations of the complaint are true, the defendant clearly “discriminated” against the plaintiff in violation of the proscription against such conduct contained in section 4(h) of the Workers’ Compensation Act.

Under these circumstances, a cause of action could lie to ensure that the public policy behind the enactment of the Workers’ Compensation Act is not frustrated. It would be a bitter irony if employers were allowed to circumvent the public policy recognized by the supreme court in Kelsay and adopted by the legislature by section 4(h) by performing retaliatory and “discriminatory” actions short of termination. Public policy will not allow employers to frustrate an employee’s rights under the Workers’ Compensation Act and to avoid statutorily imposed duties by retaining the employee but demoting or reducing the employee’s hours.

Lastly, simply because plaintiff has alleged a cause of action sufficient to survive a motion to dismiss in no way predetermines the ultimate disposition of her claim. Upon further development of the facts, it may be developed that the plaintiff was not demoted or her hours were not reduced or that the acts, if committed, were for some legitimate reason. These are questions of fact that cannot be decided on a motion to dismiss. Accepting, as we must, that all facts alleged by plaintiff are true, we conclude that plaintiff has sufficiently alleged a cause of action.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CHAPMAN, P.J., and WELCH, J., concur.


author: JUSTICE MAAG

text:
    DAVID R. WOLTERING, Adm’r of the Estate of Stacey Lee Grace, Deceased, Plaintiff-Appellant, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee.
    Fifth District
    No. 5 — 92—0248
    Opinion filed June 16, 1993.

      Robert H. Gregory, of The Lakin Law Firm, P.C., of Wood River, for appellant.
    William A. Schmitt and Mary Sue Juen, both of Thompson & Mitchell, of Belleville, and Richard A. Bowman and Marcia M. Kull, both of Bowman & Brooke, of Minneapolis, Minnesota, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

The plaintiff, David R. Woltering, administrator of the estate of Stacey Lee Grace, deceased, petitioned this court pursuant to Illinois Supreme Court Rule 308 for leave to appeal an order of the circuit court of Madison County granting partial summary judgment to the defendant, Outboard Marine Corporation. We granted the plaintiff’s petition for leave to appeal.

This case arises out of an accident which occurred on April 27, 1989. The complaint alleges that Stacey Lee Grace was a passenger on a pleasure craft being operated on the Mississippi River near St. Charles County, Missouri. She was thrown from the boat and apparently struck by the propeller of the outboard motor. This outboard motor was manufactured by the defendant, Outboard Marine Corporation. At the time of her death, Stacey Lee Grace was unmarried and left no surviving children. The next of kin claiming an interest in this litigation are her father and her sister.

Prior to her death, Stacey Lee Grace lived in an apartment in the basement of her parents’ home and paid them $100 per month in rent. Neither her father nor sister was financially dependent upon the decedent. They have, however, claimed damages due to their loss of companionship, guidance, advice, love, and affection for the decedent.

We are confronted with two issues in this case. First, we must decide whether Federal admiralty law or State substantive law applies. Second, regardless of whether Federal admiralty law applies or State law applies, we must determine the correct measure of damages given the facts of this case.

A trilogy of United States Supreme Court cases provides guidance in determining whether this case as pleaded arises under Federal admiralty law or under State products liability law. The United States Supreme Court in Executive Jet Aviation, Inc. v. City of Cleveland (1972), 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493, established a two-part test for determining whether a case falls within the admiralty law jurisdiction. The Supreme Court held that it first must be ascertained whether the tortious wrong occurred on navigable waters. If, in fact, the alleged wrong occurred on navigable waters, then the court must determine whether there is a significant relationship between the wrong and traditional maritime activity.

In Foremost Insurance Co. v. Richardson (1982), 457 U.S. 668, 73 L. Ed. 2d 300, 102 S. Ct. 2654, the Supreme Court reiterated the previously stated rule. It emphasized that admiralty jurisdiction is limited by the requirement that the wrong must bear a significant relationship to traditional maritime activity. The Court held that the collision of two pleasure boats on navigable waters because of negligent operation did constitute a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction. The Supreme Court recognized that, although the primary focus of admiralty jurisdiction is the protection of maritime commerce, all vessel operators must be subject to uniform rules of conduct on navigable waters. To ignore this fact would ignore the potential impact of noncommercial maritime activity on maritime commerce. Foremost, 457 U.S. at 674-75, 73 L. Ed. 2d at 305-06, 102 S. Ct. at 2658.

The final case in the trilogy is Sisson v. Ruby (1990), 497 U.S. 358, Ill L. Ed. 2d 292, 110 S. Ct. 2892. In Sisson, a fire broke out aboard a yacht docked at a marina. The yacht was destroyed along with several neighboring vessels and the marina. The fire itself apparently started in the area of a washer/dryer unit. The Supreme Court was confronted with the question of whether Federal admiralty jurisdiction could be invoked under those facts. The Court found that admiralty jurisdiction was present despite the fact that no commercial vessels were involved. The Court reasoned that a fire has a “potentially disruptive impact on maritime commerce” because of the potential of it spreading to commercial vessels and because the damage to the marina could make it inaccessible to commercial vessels. (Sisson, 497 U.S. at 363, Ill L. Ed. 2d at 299-300, 110 S. Ct. at 2896.) Therefore, the Court held that since both the locality test, that is, an alleged wrong occurring on navigable waters, and the nexus test, a substantial relationship to traditional maritime activities, were satisfied, Federal admiralty jurisdiction was proper.

We must now apply these rules to the facts of this case. We have considered the authorities cited by the parties and conclude that Federal admiralty law does not apply in this case.

We do not reach this conclusion because of the absence of an allegation of negligent navigation. As the defendant correctly points out, a claim of improper navigation is only one factor to consider in determining whether admiralty jurisdiction is present. Sisson is an excellent example of a case where there is no allegation of improper navigation and yet admiralty jurisdiction was found to exist.

Rather, we reach the conclusion that this case does not fall within the admiralty jurisdiction because there is an insufficient relationship to traditional maritime activity. In Delta Country Ventures, Inc. v. Magana (9th Cir. 1993), 986 F.2d 1260, the plaintiff dove from the deck of a houseboat and struck something underwater, sustaining serious injuries. The boat had been leased for recreational use, and the plaintiff was on the boat as a guest. One of the issues in the case was whether the admiralty jurisdiction of the court was implicated. The United States Court of Appeals for the Ninth Circuit stated:

“In Sisson, the Supreme Court stated that ‘protecting commercial shipping is at the heart of admiralty jurisdiction’ and ‘[n]ot every accident in navigable waters that might disrupt maritime commerce will support federal admiralty jurisdiction.’ [Citation.] The Court then set forth a two-step inquiry for determining whether jurisdiction exists: First, we ‘assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity.’ [Citation.] Second, we ask whether the party seeking to invoke maritime jurisdiction has shown ‘a substantial relationship between the activity giving rise to the incident and traditional maritime activity.’ [Citation.]” 986 F.2d at 1262.

Applying this test, the court in Magana defined the relevant activity as “aquatic recreation off a pleasure boat.” The court concluded that “aquatic recreation off a pleasure boat” was not sufficiently related to traditional maritime activity to support admiralty jurisdiction.

Similarly, in the instant case we must define the activity taking place at the time of the injury, and we hold that the relevant activity giving rise to the incident was aquatic recreation involving a pleasure boat.

A decision closely paralleling the facts of this case is Kunreuther v. Outboard Marine Corp. (E.D. Pa. 1989), 715 E Supp. 1304. In the Kunreuther case, plaintiff’s decedent was snorkeling in Jamaican waters when she was struck by a propeller from an Evinrude outboard motor. The plaintiff alleged that the outboard motor should have been equipped with a propeller guard. The identical allegation is made by the plaintiff in this case. The United States District Court, after analyzing the law of admiralty jurisdiction, concluded that under the facts of that case admiralty jurisdiction did not lie.

The Federal district court later withdrew this decision and concluded that the Death on the High Seas Act (Act) (46 U.S.C.A. §761 et seq. (West 1975 & Supp. 1993)) must be applied. However, the court did not retreat from its prior ruling that in the absence of the Act Federal admiralty law should not apply. (Kunreuther v. Outboard Marine Corp. (E.D. Pa. 1991), 757 F. Supp. 633.) In this case, there is no claim that the Act is involved.

We reach the same conclusion as the courts in Magana and Kunreuther. Admiralty law does not apply in this case. Rather, Illinois law applies. We reach this conclusion because only the locality test has been met. The second prong of the two-part jurisdictional test, a significant relationship to traditional maritime activity, has not been satisfied. Magana, 986 F.2d at 1262.

The defendant has cited several cases that at first blush seem to conflict with Magana and Kunreuther. However, nearly all of the authorities cited involved a collision between vessels or some other form of negligent navigation. While negligent navigation is not necessary to invoke admiralty jurisdiction, its presence strongly suggests the propriety of applying admiralty law. (Foremost, 457 U.S. at 675 n.5, 73 L. Ed. 2d at 306 n.5, 102 S. Ct. at 2658 n.5.) In this case, the record is devoid of any evidence that negligent navigation played a role in the accident.

Given the fact that we have concluded that Illinois law applies to this case, we must now determine whether loss of society damages are recoverable. It is clear that, loss of society damages for the death of an adult child are recoverable. (See Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 120, 499 N.E.2d 1373.) The Illinois Supreme Court has stated that Illinois law recognizes that pecuniary losses encompass loss-Of-society damages for many facets of family relationships. (Seef v. Sutkus (1991), 145 Ill. 2d 336, 338, 583 N.E.2d 510, 511.) Recently, the Illinois Supreme Court recognized that a proven loss of a sibling’s society is a pecuniary injury for which siblings can recover under the wrongful death statute. (In re Estate of Finley (1992), 151 Ill. 2d 95, 103, 601 N.E.2d 699, 702.) Therefore, siblings may recover for loss of society of a deceased brother or sister, but such damages must be proven. (Finley, 151 Ill. 2d at 106, 601 N.E.2d at 699.) We find that loss-of-society damages are recoverable in this case.

Accordingly, the partial summary judgment entered by the circuit court of Madison County is hereby reversed, and the cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

GOLDENHERSH and LEWIS, JJ., concur.