text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant and Cross-Appellee, v. JAMES BARTON et al., Defendants (Beverly Delaney, Defendant-Appellee and Cross-Appellant).
    Fifth District
    No. 5—86—0498
    Opinion filed November 1, 1989.
    Bruce D. Locher, Special State’s Attorney, of Springfield (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Tyler J. Bateman, of Alton, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This cause is on appeal after a dismissal of an indictment against the defendant, Beverly Delaney, by the trial judge for prosecutorial misconduct.

The defendant was indicted on two counts of bribery and one count of perjury in a 46-count indictment that was the result of an investigation into alleged misconduct by the Madison County supervisor of assessments. The defendant was accused of assisting her employer, Robert “Pat” Quinn, in bribing the supervisor of assessments, James Barton, by paying $200 to the James Barton Defense Fund (a fund that was established to help Barton defray the cost of defending against a prior indictment) with the intent to influence Barton into reducing Quinn’s real estate taxes and then committing perjury before the grand jury by denying that Quinn had repaid her.

The hearing on the defendant’s motion to dismiss along with other motions lasted seven days. Basically, the evidence that pertained to the defendant can be separated into three segments. The first part consisted of evidence attempting to show that Don Weber, the State’s Attorney of Madison County, was guilty of numerous unethical and possibly criminal acts. The second area consisted of evidence attempting to prove that the special State’s Attorney appointed by the court was not independent of Weber. The final segment of evidence consisted of testimony and exhibits showing that the special State’s Attorney deliberately had the court reporter read an edited version of the defendant’s testimony before a prior grand jury that gave a different meaning as to what the defendant was really saying.

In 1984, an election year for the office of State’s Attorney of Madison County, Don Weber was the Republican incumbent seeking retention. Weber and the United States District Attorney were conducting a joint investigation of the supervisor of assessments’ office with the assistant State’s Attorney, Keith Jensen, being primarily in charge of the investigation for Weber’s office. There suddenly developed leaks to the press and to the Republican county chairman of confidential wiretap evidence that could only have come from Weber. The U.S. Attorney finally had enough and withdrew from the investigation.

Meanwhile, Jensen went to circuit judge RJ. O’Neill and told him that he was concerned because Weber was leaking matters before the grand jury to the press and that Weber had ordered him to obtain indictments before the primary election so that he would look good in spite of the lack of sufficient evidence for probable cause at that time. In fact, Weber told Jensen to find him a Republican officeholder to indict because it would make him look impartial to the public. Weber then told Jensen to hold up on the indictments because others had convinced him that it would appear too political to have the grand jury return indictments so close to the primary elections and that he had merely been trying to send false signals to the U.S. Attorney, hoping that he would take action against the Democratic officeholders.

The grand jury then requested an audience with Judge O’Neill as they were concerned with Weber’s political maneuverings and the criticism leveled against Weber by this court in the case of People v. Barton (1984), 122 Ill. App. 3d 1079, 462 N.E.2d 538, cert. denied (1985), 469 U.S. 1213, 84 L. Ed. 2d 332, 105 S. Ct. 1185. Judge O’Neill, acting upon the wishes of the grand jury, entered a sealed order barring Weber from appearing before the grand jury in the matters under investigation and directing Jensen to continue with the investigation.

Weber was upset by the order and filed a motion to vacate the order making the matter public. He also at this time made threats to indict Judge O’Neill. Ultimately, Judge Dennis Cashman of the Eighth Judicial Circuit was appointed by the Illinois Supreme Court to hear the motion.

On May 9, 1984, Weber, Judge O’Neill, and Keith Jensen agreed and stipulated that a special prosecutor be appointed who was to be independent of Weber. Weber suggested that Bruce Locher of Springfield, Illinois, be appointed, as he had no close ties with Locher and Locher had a good reputation. Judge O’Neill agreed to the appointment as he was advised that Locher was a reputable attorney. Judge Cashman agreed to the appointment although he did not personally know Locher. Judge Cashman stated in his order of appointment, however, that said “Special State’s Attorney, in order to avoid any appearance of impropriety, should be an attorney independent of the Office of State’s Attorney of Madison County.” It was also agreed at this time that Locher was to be appointed to prosecute pending cases against James Barton and a case against one Walter Greathouse, a member of the Madison County Zoning Board of Appeals.

Meanwhile, “Zeke” Smith, assistant State’s Attorney in the civil division of the Madison County State’s Attorney’s office, decided that he could be instrumental in settling all of the problems in Madison County. Smith contacted Ben Allen, an attorney who had contacts with some of the persons being investigated and the attorney of James Barton, for the purpose of arranging a meeting with Weber. Weber, himself, had been indicted, and an appeal from a dismissal of the indictment was pending in this court. The parties met June 21, 1984, and agreed that Weber would dismiss the Greathouse case as a “good faith gesture,” Allen would contact Barton’s attorney to see if Barton would plead to some misdemeanors and resign from office, Weber would have Locher not prosecute attorneys Merle Bassett and Robert “Pat” Quinn but instead forward the matter to the Attorney Registration and Disciplinary Commission, and, finally, Allen was to approach Paul Verticchio, special prosecutor on Weber’s case, to see if he would drop the appeal.

Weber telephoned Locher, but failed to reach him. Later Weber’s secretary came into the meeting room and said that Locher was on the phone. Weber then spoke with Locher, but neither could remember what was said. However, Locher had told Chief Judge Matoesian previously that he would complete his investigation and need of the grand jury in June or July. The grand jury was not called until late August 1984. Further, “Zeke” Smith obtained the dismissal of the Greathouse case on July 30, 1984, even though he had had nothing to do with the case prior to that date. Although Weber and Locher both testified that they were upset about the dismissal, neither did anything about vacating the order or disciplining Smith.

Allen, after learning of the dismissal of Greathouse, approached Verticchio in late August or early September about dismissing the Weber appeal, but Verticchio said that the courts should resolve the matters. Allen advised Weber that he had not been able to effectuate the dismissal, and soon afterwards, the grand jury met and indicted several of the parties discussed in the June 21 meeting. Robert “Pat” Quinn and the defendant were not indicted by this grand jury.

Locher had only a brief 15- to 20-minute meeting with Jensen after his appointment, even though Jensen had been the chief prosecutor in the investigation until Locher’s appointment. From 1984 to 1986 Locher made 52 telephone calls to Weber’s home, Weber’s father’s house and the State’s Attorney’s office prior to December 1984. Weber could not produce the State’s Attorney’s telephone bills from January to December 1984, although both Weber and Locher admitted that Weber had made calls to Locher expressing his opinion about matters related to the investigation. Both Weber and Locher admitted to at least 10 personal meetings. As late as 1986, Weber was personally delivering subpoenas to the sheriff for Locher. Even though Weber and Locher admit to having continuous contact and even though Locher billed Madison County for some of those meetings with Weber’s review and approval of the billing, Locher could not remember what was discussed. Weber’s memory was only slightly better than Locher’s memory.

After the indictments were returned by the April to October grand jury, Locher advised the chief judge that he was through investigating and ready to start prosecuting. Weber, meanwhile, had been having lunch with the foreman of the grand jury and just so happened to place a $792 order for envelopes with the foreman’s printing shop. The grand jury issued a glowing commendation about Weber and his office before ending its term just prior to the general election.

At 3 a.m. on November 6, 1984, it became apparent that Weber had failed to be reelected. Between 9:30 and 10 a.m. on the same day, the grand jury bailiff reported that Locher had called and said that he wanted to call the grand jury again before Weber left office. The chief judge refused to call the grand jury as he felt that since a new State’s Attorney had been elected, there would not be a need of a special State’s Attorney, which would end the high cost of the prosecution. Locher was able to get Judge Cashman to call another grand jury, which returned the same indictments against the same defendants as the previous grand jury had, apparently to avoid any charges of tampering with the grand jury by Weber.

This grand jury also indicted Robert “Pat” Quinn and his secretary, the defendant. There was some evidence that Quinn had worked hard to defeat Weber in the election and that Weber felt that the defendant had been critical of him and had worked against him.

In order to indict the defendant, Locher called the court reporter, Melody Kerbs, who had transcribed the testimony of the defendant before the March 15, 1984, grand jury. Kerbs testified that Locher gave her a copy of the transcript and instructed her to respond only to those sections that were marked. Kerbs complied with Locher’s instructions and only read to the grand jury the excerpted portions. The grand jury was not advised that portions of the defendant’s testimony were being omitted. Further, it would not have taken more than three to five minutes to read all of the defendant’s testimony.

In questioning the defendant about the James Barton Defense Fund by Jensen, the following questions and answers were made:

“Q. Did you ever talk to your employer about the defense fund?
A. Yes, in a way.
Q. Would you tell us in what way you did?
A. I — Just what I told you. I heard that there was a defense fund. I asked Mr. Quinn if he knew anything about it. He said he had heard about it. I said, T would like to make a contribution, but I don’t know how to go about it,’ and he said if I wanted to make a contribution to give him the check and he would see that it got to the right party.
Q. How did you know to make it out to the James Barton Defense Fund?
A. What else would you make it out to?”

Locher then had the court reporter skip the following questions and answers:

“Q. You don’t remember ever hearing specifically about a fund?
All you remember is that there was some talk, but you never knew there was a defense fund?
A. No, not really.
Q. Then why did you make it out to the defense fund?
A. What would I make it out to?
Q. Jim Barton?
A. I don’t know Jim Barton.
Q. Did you know the Jim Barton Defense Fund?
A. No.
Q. Then why did you make it out to the Jim Barton Defense Fund?
A. Because I had heard there was a Jim Barton Defense Fund and it seemed to be logical.
Q. Have you ever heard of any other defense fund for criminal clients like that, or people who are targets of investigation?
A. I am sure I have, but I can’t give you a specific example. I have made checks out before to other funds simply because, you know, that was — they are collecting money for something, so it is a fund.
Q. What type of funds have you make [sic] out checks for?
A. Well, there was some gentlemen [sic] who had a brain tumor and they were trying to get money for the surgery, so I made out a check because I felt he was a young man that deserved a chance, so I sent money to the fund.
Q. Was this to the man himself or to someone that knew about it?
A. No, I think the Salvation, if I remember, the Salvation Army was collecting the funds for it. He was from Bethalto or Cottage Hills or somewhere.”

Locher then had Kerbs read the following questions and answers without mentioning to the grand jury anything about the Salvation Army or a man with a brain tumor:

“Q. Did someone come and ask you for a donation?
A. No, I simply heard about it.
Q. Did anyone reimburse you for that $200.00?
A. No. Who would reimburse me?
Q. I am asking you.
A. No.”

Even if you construe the scenario most favorably for the State, it is confusing as to whether the defendant was referring to her donation to the James Barton Defense Fund or to her donation to the Salvation Army. Most likely, however, it appears that the defendant was referring to her donation to the Salvation Army.

There was more evidence introduced of motions attacking the integrity of the judges in Madison County, pleadings before the Illinois Supreme Court questioning the good faith of the judiciary, and even a request and short investigation of some of the judges’ financial reports with releases made to the press. Judge O’Neill characterized the special prosecutor’s allegations as “pure Weber.” Even worse, Locher admitted that some of the allegations, including the pleadings before the Illinois Supreme Court, were not correct. Since all of these events occurred after the indictment of the defendant, this evidence would be relevant only to show the continuous ties between Weber and Locher.

There is an old adage that “bad cases make bad law.” The danger that is prevalent in this case is that it might serve as precedent for defense counsel to attempt to defend their clients by trying the State’s Attorney. If this type of practice were to become widespread, it could have disastrous consequences for the judicial system, as evidenced by the seven-day trial of the prosecutor in this case. We cannot afford the delay in our criminal justice system by trying the prosecutor, nor should we divert our attention from judging the guilt or innocence of the defendant to judging the conduct of the prosecutor, except in very limited situations. People ex rel. Sears v. Romiti (1972), 50 Ill. 2d 51, 277 N.E.2d 705.

One of the limited situations in which we do examine and judge the conduct of the State’s Attorney is in his or her presentation of the case before the grand jury. It is well established that:

“[T]he grand jury is an integral part of the trial court and that the court, in its inherent supervisory power over the grand jury, has jurisdiction to order and examine transcripts of grand jury proceedings to determine if there has been prosecutorial misconduct. People v. Sears (1971), 49 Ill. 2d 14, 35-36[, 276 N.E.2d 322]; accord Hughes v. Kiley (1977), 67 Ill. 2d 261, 267[, 367 N.E.2d 700].” (People v. Linzy (1979), 78 Ill. 2d 106, 109, 398 N.E.2d 1, 2.)

However, the court is limited in the scope of its inquiry to the record and transcripts of the proceedings before the grand jury and cannot “justify the use of affidavits or testimony of grand jurors to show misconduct during grand jury proceedings.” People ex rel. Sears v. Romiti (1972), 50 Ill. 2d 51, 59, 277 N.E.2d 705, 709.

“This misconduct of the prosecutor does not justify the punishing of society.” United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 299. This court stated previously about the same State’s Attorney, Don Weber:

“While we applaud the vigorous prosecution of crime, we are appalled when, as here, a prosecutor becomes a persecutor. If the conduct of a prosecutor is the result of any motive other than the fair and impartial prosecution of alleged crimes, such conduct must not be tolerated by a court.” (People v. Barton (1984), 122 Ill. App. 3d 1079, 1084, 462 N.E.2d 538, 543, cert. denied (1985), 469 U.S. 1213, 84 L. Ed. 2d 332, 105 S. Ct. 1185.)

This court went on to describe Weber’s conduct as “wholly unjustified and inappropriate,” “appalling,” and “reprehensible” to which we can easily add such adjectives as outrageous, totally unacceptable, unethical, and disgraceful. Still, this court did not dismiss the indictment in Barton for Weber’s pretrial misconduct.

The test is whether or not “there has been a clear denial of due process.” But the power to dismiss an indictment should be utilized with restraint and only be exercised if the violation is clear and can be ascertained with certainty. People v. Lawson (1977), 67 Ill. 2d 449, 455-56, 367 N.E.2d 1244, 1246-47.

The trial court was clearly justified in finding from the evidence that the indictment of the defendant was for political and vindictive reasons. The special prosecutor’s “cut and paste job” on the transcript in presenting the defendant’s prior testimony before another grand jury, his incredible loss of memory whenever he was questioned about his dealings with Weber, his participation in “Zeke” Smith’s scheme to extricate Weber from his indictment, and his sudden decision to indict the defendant within hours after learning of Weber’s defeat explain his motivation in obtaining the indictment of the defendant.

It should be made clear, however, that in spite of the misconduct •and unethical acts of Weber and the special State’s Attorney, a dismissal of the indictment would not be justified, if the special prosecutor had not misled the grand jury. The only relevance that most of the evidence in this case has goes only toward showing that the misleading of the grand jury by the special prosecutor was not accidental or a mistake. The cases are consistent that the due process rights of a defendant are violated, if the grand jury is deliberately or intentionally misled by the prosecutor. United States v. Basurto (9th Cir. 1974), 497 F.2d 781; United States v. Estepa (2d Cir. 1972), 471 F.2d 1132; People v. Linzy (1979), 78 Ill. 2d 106, 398 N.E.2d 1; People v. Creque (1978), 72 Ill. 2d 515, 382 N.E.2d 793.

The judgment of the trial court in dismissing the indictment is affirmed.

In view of our disposition of the foregoing issues, we need not address the issue raised in defendant’s cross-appeal.

Affirmed.

LEWIS and KARMEIER, JJ., concur.

       Justice Karmeier replaces Justice Karns, who retired from the bench after this case was taken under advisement.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    DALE E. PETERS et al., Plaintiffs-Appellants, v. BARRETT, TWOMEY, MORRIS & BROOM, et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0568
    Opinion filed November 2, 1989.

      Gray & Ritter, RC, of St. Louis, Missouri (Paul C. Hetterman and M. Jane Matoesian, of counsel), for appellants.
    Jeffrey P. Hine, of Oliver, Oliver, Waltz & Cook, P.C., of Cape Girardeau, Missouri, for appellee David W. Watt, Jr.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiffs Dale E. Peters, James E. Gibbs, and Kincaid Village Marina appeal from the order of the circuit court of Jackson County granting summary judgment in favor of one of the defendants, David W. Watt, Jr. We affirm.

Plaintiffs filed a legal malpractice action against defendants, the law firm of Barrett, Twomey, Morris & Broom, the individual partners of that firm and David W. Watt, Jr., to recover damages occasioned by their negligence in their legal representations of plaintiffs with respect to the sale of a marina previously owned by plaintiffs. On December 29, 1978, plaintiffs sold their marina operation to the Kincaid Village Marina Corporation (KVMC). Attorney Watt represented plaintiffs in this sale, preparing all necessary documents, including any required financing statements to secure plaintiffs’ rights and interests under the sale agreements. The financing statements accordingly were filed on January 2, 1979. Sometime prior to April 23, 1982, Watt ceased representing plaintiffs. Plaintiffs then hired Twomey and his firm to represent them in connection with their rights under the marina sale agreements. At that point in time, all of the assets which plaintiffs had as security were still in existence. KVMC, however, defaulted on the agreements on numerous occasions, and on August 10, 1984, filed a voluntary petition in bankruptcy. Plaintiffs were held to be unsecured creditors by the bankruptcy court because (1) the financing statements prepared and filed by Watt were defective as fixture filings because they did not contain a description of the real estate or state the name of the owner of the real estate and (2) the financing statements had lapsed because no continuation statements had been filed in January of 1984. Plaintiffs appealed the bankruptcy court’s ruling to the district court. The district court determined plaintiffs were unsecured creditors because of the lapsing of the financing statements. The court declined to address the issue of whether the statements were properly filed in the first place.

As a result of the determination of their unsecured creditor status, plaintiffs filed the instant legal malpractice action against Twomey, his fellow partners and law firm. Watt was not added as a defendant until plaintiffs’ fourth amended complaint. Watt then filed a motion for summary judgment alleging Twomey’s failure to file the continuation statements constituted an efficient intervening cause of plaintiff’s damages. Relying on the district court’s decision, the trial court granted Watt’s motion.

Plaintiffs argue on appeal the trial court erred in granting Watt’s motion for summary judgment. Plaintiffs believe the issue as to the proximate cause of their damages presents a material question of fact because both Watt and Twomey were negligent in their representations of plaintiffs. Plaintiffs contend it cannot be stated, as a matter of law, whose actions caused them to be held to be unsecured creditors and whose actions proximately caused their damages. According to plaintiffs, both defendants were concurrently negligent. We disagree. Admittedly, the original financing statements prepared and filed by Watt were defective (see Ill. Rev. Stat. 1979, ch. 26, par. 9 — 402), but these defects did not cause plaintiffs to be unsecured creditors in the bankruptcy proceedings. The proximate cause of plaintiffs’ unsecured status was Twomey’s failure to file continuation statements (see Ill. Rev. Stat. 1983, ch. 26, par. 9 — 403(2)), in addition to his failure to correct or amend the original financing statements to include the missing information (see Ill. Rev. Stat. 1983, ch. 26, par. 9 — 402(4); In re Kittyhawk Television Corp. (6th Cir. 1975), 516 F.2d 24, 28; 9 R. Anderson, Uniform Commercial Code §§9— 401:48, 9-402:66 (3d ed. 1985); 8 W. Hawkland, R. Lord & C. Lewis, Uniform Commercial Code Series §9 — 402:14 (Callaghan 1986)). Twomey failed to represent and protect plaintiff’s interests. This failure was the cause of their damages. The original filing of the financing statements merely created a condition which made plaintiffs’ damages possible. Plaintiffs cannot say, however, but for the alleged negligence of Watt they would have been secured creditors in the bankruptcy proceedings. Even if the original statements had been letter perfect, plaintiffs still would be unsecured because the statements were allowed to lapse. Twomey’s actions, or more precisely in-actions, broke any chain of legal causation, constituting an independent intervening cause of plaintiffs’ damages. The failure to file continuation statements was not a foreseeable consequence of the filing of the original financing statements. (See Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 361, 493 N.E.2d 372, 373. See also Roeseke v. Pryor (1987), 152 Ill. App. 3d 771, 779, 504 N.E.2d 927, 931-32. Cf. Parvin v. Sill (1985), 138 Ill. App. 3d 325, 328-29, 486 N.E.2d 262, 264-65.) Because Watt was not responsible for failing to file continuation statements and/or amend the original financing statements prior to lapsing, having stopped representing plaintiffs some two years prior to the continuation filing date, we cannot conclude Watt was the proximate cause of plaintiffs’ damages. The facts are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. (Dodson v. Spain (1987), 154 Ill. App. 3d 1034, 1036, 507 N.E.2d 1306, 1307.) There simply is no genuine issue as to any material fact. Because Watt’s actions did not proximately cause plaintiffs’ damages, the trial court properly granted his motion for summary judgment. (See Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201. See also Practical Offset, Inc. v. Davis (1980), 83 Ill. App. 3d 566, 404 N.E.2d 516.) We therefore find no abuse of the trial court’s discretion such that plaintiffs’ right to fundamental justice has been violated in this instance. See Kemp, 143 Ill. App. 3d at 361-62, 493 N.E.2d at 373.

Because of our disposition of this issue, we need not address other matters raised by Watt in response to plaintiffs’ appeal.

For the aforementioned reasons, we affirm the entry of summary judgment in favor of Watt granted by the circuit court of Jackson County.

Affirmed.

WELCH, P.J., and GOLDENHERSH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. C. DOUG FYKE, Defendant-Appellant.
    Fifth District
    No. 5—87—0858
    Opinion filed November 2, 1989.

      Robert H. Rice, of Rice Law Office, of Belleville, for appellant.
    Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of Mt. Vernon, for the People.
   JUSTICE RARICK

delivered the opinion of the court:

C. Doug Fyke was charged in the circuit court of Marion County with the offense of murder. After a trial by jury, Fyke was found guilty and sentenced to 50 years in prison.

Fyke’s conviction resulted from his participation in a conspiracy to kill Robert Alderson, Jr., whom the conspirators believed to be an informant. The conspirators included Fyke and his wife Tammy, Frank Volkmar, Paul Potts, Gary Daubman, Tim Clifton, and Gale Rankin. Volkmar and Potts were involved in drug dealing with the Fykes. Rankin was a friend of the Fykes and was living with them at the time of the murder.

Codefendant Paul Potts testified on behalf of the State. Several weeks prior to Alderson’s murder, he and Volkmar were in Salem at the Fykes’ house to obtain some marijuana to sell. Tammy Fyke took Volkmar and Potts to the garage, where there were huge stacks of marijuana, as well as numerous guns. While in the garage, Rankin entered and told Tammy that “Red” had called. “Red” was Alderson’s nickname. Tammy became angry and stated that she was tired of “Red” talking so much and that she was going to “shut him down.” Sometime later, Tammy and Doug Fyke brought 45 to 50 pounds of marijuana to Volkmar’s house in Alton. They believed the Salem police were about to make some drug-related arrests and didn’t want anything in their house. Volkmar and Potts were to sell the marijuana in the Alton area. While there, Tammy Fyke said she wanted a man killed because he was talking too much, but Volkmar indicated that it would be better if the guy was just hurt, and that if he were hurt, it would leave the Salem area open. Daubman finally agreed to kill Alderson in exchange for drugs and money.

On September 4, 1986, Volkmar, Potts, and Gary Daubman drove to the Fykes’ house in Salem because there was to be a party there. Daubman was worried that Alderson might be armed, so Volkmar obtained a .25 caliber pistol which he gave to Daubman, and Daubman brought the gun with him. Once there, Tammy Fyke, Daubman, and Volkmar went into the kitchen, where they discussed drugging Aider-son because they were afraid he might have a gun. Tammy and Doug Fyke made several phone calls in an attempt to find some drugs to use on Alderson. Doug Fyke and Volkmar then drove to a motel in Centraba where they met Tammy Williams, Alderson’s girlfriend. Clifton had arranged for Williams to go to the motel with Keith Kirgan. Part of the conspirators’ plan was to make Alderson believe that his girlfriend had been kidnapped. When Fyke and Volkmar arrived, Fyke left with Kirgan while Volkmar remained at the motel with Williams.

After dropping Kirgan off at Hardee’s restaurant in Salem, Fyke returned home. Shortly thereafter, Rankin returned home from work to the party. Tammy Fyke asked Rankin to show Daubman how to use the gun. Rankin, Daubman, and Tammy then left for a place called “the bottoms” to practice shooting. Potts testified that he left at that point and went to a bar. When he returned to the Fykes’ house several hours later, everybody was upset. Daubman stated that he didn’t know why everyone else was upset because he was the one who had done it. Tammy Fyke stated that she was glad it was done. Doug Fyke asked if they were sure the victim was dead.

Potts, Daubman, and Volkmar then drove back to the Alton area in Rankin’s car. Once they returned to Alton, they put the car behind Potts’ brother’s house in Rosewood Heights, and Volkmar dropped the gun in the Hartford canal.

Rankin testified that upon coming home from work, he, Tammy Fyke, and Gary Daubman drove to “the bottoms” to practice shooting. Later that evening, Rankin and Daubman returned to “the bottoms.” Rankin was armed with a .38 caliber pistol and Daubman had the .25 caliber pistol. Shortly after arriving, Tammy Fyke drove up with Alderson. After a short conversation, Daubman ordered Alderson to lie on the ground. As Tammy and Rankin walked away, Rankin heard two or three shots. Rankin walked back to Daubman, retrieved the pistol, and drove away. Rankin also testified that he believed “Red” was going to be “talked to” and that he did not know he was to be killed. Rankin further testified that the day after the murder he, Tammy Fyke, and Tim Clifton went back to the scene of the murder, doused Alderson’s body with gasoline, and set it on fire.

Fyke’s first argument on appeal is that he was denied due process of law in that at the time the arrest warrant was issued, the information had not been sworn to as required by statute. The warrant was therefore invalid, he argues, and his subsequent arrest illegal. But for the illegal arrest, he maintains, he would not have made certain statements inculpating himself and such statements should have been suppressed as the fruits of an illegal arrest. Because it is impossible to determine what the outcome of his trial would have been had those statements been suppressed, Fyke argues, he must be granted a new trial.

The record reveals that on the evening of September 9, 1986, the Salem police received information from the police in Alton implicating the Fykes in the murder of Alderson. Fearing that a suspect at large in the Alton area might telephone and warn them, the police and the State’s Attorney immediately prepared an information, arrest warrants, and a search warrant. These documents were presented to Judge Richard Hodson by the State’s Attorney and Agent Larry Coughlin of the Illinois Division of Criminal Investigation at 3 a.m. the following morning. Agent Coughlin was placed under oath by Judge Hodson and swore to the truthfulness of the statements in the affidavit supporting the complaint for search warrant and to the truthfulness of his answers to Judge Hodson’s questions. Although apparently unnoticed at the time, the information had been signed by the State’s Attorney but not verified. The information was subsequently verified by a notary public at 8 a.m., but by then Fyke had already been taken into custody.

Section 111 — 3(b) of the Code of Criminal Procedure of 1963 requires that an information be signed by the State’s Attorney and sworn to by him or another (Ill. Rev. Stat. 1985, ch. 38, par. 111 — 3(b)), and a sworn information is a prerequisite to the issuance of an arrest warrant (People v. Harding (1966), 34 Ill. 2d 475, 216 N.E.2d 147). When the information was presented to Judge Hodson, a complaint for search warrant was also presented. This complaint set forth all of the facts upon which the information was based, and the statements contained in the complaint were sworn to by Agent Coughlin. The purpose of requiring an oath is to prevent groundless prosecutions by holding answerable on pain of perjury anyone who swears to an information. (People v. Audi (1979), 73 Ill. App. 3d 568, 392 N.E.2d 248.) Had the statements made by Agent Coughlin been untrue, he would have been guilty of perjury. The purpose of the statute was effectuated by Coughlin’s sworn statements. As the requirement of oath is statutory as opposed to constitutional, the lack thereof does not in and of itself deprive the defendant of a fair trial. We note also that State’s Attorney Matoush, who had prepared and signed the information, was present when the documents were presented to Judge Hodson, so there can be no doubt as to the authenticity of his signature on the information. Under the circumstances, we conclude that the statutory requirement of a sworn information was met and defendant suffered no prejudice as a result of the procedure employed.

In any event, we conclude that Fyke’s arrest would have been valid without a warrant. Contrary to Fyke’s assertion, we can determine from the record that there was sufficient probable cause for arrest without a warrant. By issuing an arrest warrant, the trial court necessarily determined that there was sufficient probable cause for arrest based upon the sworn statement of Agent Coughlin and, as Fyke was arrested outside his home, no warrant was necessary. (United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406; People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926.) Even if the information were invalid, the sworn statements of Agent Coughlin were sufficient to support a warrantless arrest.

We next address Fyke’s argument that the trial court erred by permitting the State to introduce evidence of guns and ammunition not connected with the crime. Both Paul Potts and Agent Coughlin testified in detail about the guns which were discovered at the Fykes’ residence. As it was uncontradicted that these weapons were not used to kill Alderson, Fyke maintains such evidence was highly prejudicial and served no probative purpose.

Initially, we note that prior to trial, Fyke agreed to permit the State to elicit testimony about the guns providing they would not be exhibited to the jury. Having acquiesced in the admission of this evidence, he has waived any potential error and cannot now complain. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) In any event, we do not find the admission of this evidence to be erroneous. Evidence is relevant where it tends to prove a disputed fact or render a matter in question more or less probable. (People v. Vella (1985), 133 Ill. App. 3d 104, 478 N.E.2d 593.) Relevant evidence is admissible where it fairly tends to prove the offense charged. (People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669.) In determining whether relevant evidence should be admitted, the trial court must balance the prejudicial effect of the evidence with its probative value. (People v. Wright (1986), 140 Ill. App. 3d 576, 488 N.E.2d 1344.) Whether evidence should be admitted rests with the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of that discretion. People v. Lester (1986), 145 Ill. App. 3d 720, 495 N.E.2d 1278.

Fyke’s defense was that he did not know that the others intended to kill Alderson. The presence of numerous weapons at the Fyke residence tends to indicate that the Fykes were prepared to use deadly force to defend their drug enterprise. The weapons were not stored or encased, but were lying out where they were readily accessible. Fyke admitted he and his wife sold drugs and that Rankin lived with them to protect them. Fyke also admitted being very angry with Alderson because he was “talking too much.” The presence of the guns at his house tends to cast doubt on Fyke’s claim that he did not know Alderson was to be killed, and we cannot say the trial court abused its discretion in finding the probative value of such evidence to outweigh its prejudicial effect. Further, this evidence tends to corroborate the testimony of the State’s chief witness, Paul Potts, and is admissible for that purpose. People v. Allison (1985), 115 Ill. App. 3d 1038, 452 N.E.2d 148.

Even if the court’s decision was an abuse of discretion, we again conclude that the error was harmless. Fyke admitted that Alderson was a threat to his drug business and that he heard the other conspirators discuss killing him. Fyke also suggested drugs that could be used on Alderson to incapacitate him so he could be killed more easily, and made efforts to obtain these drugs. Fyke further assisted in the conspiracy by taking Volkmar to the hotel to meet Alderson’s girlfriend and by telling the victim to contact Tammy, who then drove him to the scene of his death. Given the evidence against Fyke, any possible prejudice resulting from the admission of testimony about the guns is relatively slight, and certainly not so great as to conclude that Fyke was denied a fair trial.

Fyke next contends that the trial court erred in instructing the jury on the law of accountability. People’s instruction No. 14A, a modified version of Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) (hereinafter IPI Criminal 2d) was given to the jury as follows:

“A person is legally responsible for the conduct of another when, either before or during the commission of the offense charged, and with the intent to promote or facilitate the commission of any offense against the victim, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of any offense against the victim.” (Emphasis added.)

At the time of the trial and of the offense in the instant case, IPI Criminal 2d No. 5.03 read:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.”

Fyke maintains that the instruction given told the jury that a defendant is responsible for another’s conduct when before or during the commission of the offense charged, the defendant, with the intent to promote or facilitate “any” offense, aids in the commission or planning of “any” offense. In other words, this instruction tells the jury that if the defendant promotes or facilitates any offense at a time before or during the offense charged, he is guilty of the offense charged. Compounding this, Fyke contends instruction No. 11A told the jury that evidence had been received that he had been involved in “other offenses.” It is possible, Fyke argues, that the jury believed that he was not guilty of murder on the theory of accountability, but because he was guilty of another offense which occurred before the murder, they were compelled to find him guilty of murder. The instructions given in this case were erroneous, Fyke maintains, and he is entitled to a new trial.

The instruction given in this case was a modified version of IPI Criminal 2d No. 5.03, which has been held by our supreme court to accurately state the law on accountability. (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) The trial court specifically relied on Caballero and Terry when instructing the jury. The law on accountability incorporates the “common-design rule,” which provides that where two or more persons engage in a common criminal design, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are accountable for those acts. (Terry, 99 Ill. 2d at 514, 460 N.E.2d at 749.) Even if the jury determined that Fyke did not know that Alderson was to be killed, he clearly knew that Alderson was to be “roughed up” and participated in the scheme to do so. Under the common-design rule, he is accountable for Alderson’s murder.

We conclude that the instructions given the jury in this case property stated the law on accountability.

Fyke also argues that the trial court erred in imposing a sentence of 50 years. He first contends that the trial court allowed the improper use of a victim impact statement at the sentencing hearing. A victim impact statement by Alderson’s father was contained in the presentence investigation report. Alderson’s father also testified at the sentencing hearing. Contained in the victim impact statement was a statement that Alderson’s father believed that Fyke should receive the maximum punishment allowed by law. Fyke maintains that this information was improper.

Because Fyke failed to object to the testimony of Alderson’s father, this issue is waived. (People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) Even if it were not waived, Fyke’s argument is untenable. Consideration of victim impact statements is permitted by statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 4—1(a)(6)) and is constitutionally impermissible only in capital cases. (Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529; People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362.) Further, our supreme court has recently held that victim impact statements are admissible (People v. Felella (1989), 131 Ill. 2d 525) and so we find no error in the admission of the victim impact statement.

Fyke next contends that the court did not adequately balance the seriousness of the crime with his rehabilitative potential. An examination of the record does not support this contention. The court rejected Fyke’s contention that his crime was the result of circumstances not likely to reoccur, finding that because of the premeditated nature of the murder, it was not unlikely that Fyke would commit other crimes. The court also acknowledged that Fyke expressed remorse, but that the seriousness of the offense and its deliberate nature outweighed any expression of sorrow. It is evident from the record that the trial court did consider Fyke’s rehabilitative potential and determined that it was not good. Based upon the evidence, we cannot say that finding was erroneous.

Fyke also argues that the trial court erroneously admitted into evidence statements made by several of his coconspirators. These written statements were identified by Agent Coughlin at Fyke’s sentencing hearing. Fyke did not cross-examine Agent Coughlin about these statements, nor did he object to their admission into evidence. Any potential error is therefore waived. (People v. Lewis (1988), 165 Ill. App. 3d 97, 518 N.E.2d 741.) In any event, we note that the strict rules of evidence do not apply in sentencing hearings (People v. Hall (1986), 145 Ill. App. 3d 873, 495 N.E.2d 1379), and hearsay evidence is admissible if it is relevant and reliable. (People v. Perez (1985), 108 Ill. 2d 70, 483 N.E.2d 250.) We believe the statements were relevant and reliable and conclude that their admission did not constitute error.

Fyke also objects to the admission into evidence at the sentencing hearing of an evidence deposition from an aunt of one of the witnesses. The aunt stated that she had received several phone calls from a man who made death threats against the witness if he testified. Again, Fyke failed to object to the admission of the deposition. Were we to consider this issue, we would note that the trial judge made no reference to this evidence when pronouncing sentence, and there is nothing in the record indicating whether the trial judge was influenced by it. It is presumed that a trial judge considers only competent and relevant evidence when determining a sentence. (People v, Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.) Fyke has presented nothing to overcome that presumption.

Next, Fyke maintains that the court was not justified in imposing an extended-term sentence. An extended-term sentence may be imposed when the defendant has been convicted of a felony and the trial court finds that the crime was accompanied by exceptionally brutal or heinous behavior. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8— 2(a), 1005 — 5—3.2(b)(2).) It was Fyke's drug business that the conspirators were trying to protect. Fyke helped plan Alderson’s murder and actively participated in the scheme to lure Alderson to the scene of his death, where he was executed. Fyke maintains that Alderson was not tortured or abused prior to his death, apparently arguing that the lack thereof demonstrates that Alderson’s murder was not brutal or heinous. We do not agree. The dispassionate and calculated manner in which Alderson’s murder was planned and carried out, and the motive behind it, demonstrates a lack of regard for human life which is so fundamentally evil that it cannot be said to be anything but brutal, heinous, and indicative of wanton cruelty. (People v. Hickman (1986), 143 Ill. App. 3d 195, 492 N.E.2d 1041.) We conclude that the imposition of the extended-term sentence was not an abuse of discretion. People v. Boyle (1987), 161 Ill. App. 3d 1054, 514 N.E.2d 1169.

Finally, Fyke argues that the phrase “brutal or heinous behavior indicative of wanton cruelty” as used in section 5 — 5—3.2(b)(2) is unconstitutionally vague. We recently considered the constitutionality of this language in People v. Barnhill (1989), 188 Ill. App. 3d 299. In Barnhill, the defendant challenged the constitutionality of section 5 — 8—1(a)(1)(b), which permits a sentence of natural life for murder where the offense is accompanied by “brutal or heinous behavior indicative of wanton cruelty.” In Barnhill this court held that the language was sufficiently indicative of the type of contact which warrants a sentence of natural life and was not unconstitutionally vague. (Barnhill, 188 Ill. App. 3d at 309.) The language of section 5 — 5—3.2(b)(2) is identical to that of section 5 — 8—1(a)(1)(b), and it is no less indicative of the type of conduct which warrants an extended-term sentence.

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

Affirmed.

WELCH, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN D. RAMSEY, Defendant-Appellant.
    Fifth District
    No. 5—88—0487
    Opinion filed November 3, 1989.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori J. Lanciani, of State Appellate Defender's Office, of Springfield, for appellant.
    Kathleen Ailing, State’s Attorney, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

After a stipulated bench trial, the defendant, John Ramsey, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) for committing an act of sexual penetration with a victim under 13 years of age by placing his penis in the anus of the victim. On appeal, the defendant contends that the aggravated criminal sexual assault statute deprives him of due process under the United States and Illinois Constitutions because: (1) the statute is overly broad and punishes innocent as well as culpable behavior because the legislature has failed to limit the scope of the statute to acts done for the purpose of sexual gratification or arousal; (2) the statute requires no mental state, while the less culpable offense of aggravated criminal sexual abuse requires an intentional or knowing touching done for purposes of sexual gratification or arousal; and (3) criminal sexual assault is not a lesser included offense of aggravated criminal sexual assault, and the statute therefore fails to define an underlying offense. We affirm.

We note at the outset that it is now clear that a defendant does not waive his right to challenge the constitutionality of a statute by failing to raise the issue in the circuit court, as “a constitutional challenge to a statute can be raised at any time.” (People v. Bryant (1989), 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 1224.) We therefore address the merits of defendant’s arguments.

Defendant first contends that the aggravated criminal sexual assault statute is unconstitutionally overbroad because the act of sexual penetration prohibited by the statute need not be done for the purpose of sexual gratification or arousal. In failing to so limit the prohibited act, the defendant argues, the statute may be construed to apply to innocent conduct such as washing an infant, or to a detention officer’s body search of a juvenile detainee.

Section 12 — 14(b)(1) of the Criminal Code of 1961 provides:

“(b) The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1).)

Section 12 — 12(f) defines “sexual penetration” as:

“[A]ny contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12-12(f).)

Sexual conduct, on the other hand, which is the primary element in the offenses of criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15) and aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16), is defined as:

“[A]ny intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, 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.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e).

The State argues that because the defendant was convicted of placing his penis in the anus of the victim, his standing to challenge the aggravated criminal sexual assault statute is limited to that type of conduct. We agree. A defendant “may challenge a statute as overbroad on the ground that it may be applied unconstitutionally to situations and questions not before the court only if the statute is one that may inhibit the exercise of rights of expression or association protected under the first amendment.” (People v. Haywood (1987), 118 Ill. 2d 263, 275, 515 N.E.2d 45, 51; see Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 839-40, 93 S. Ct. 2908, 2915-16.) The hypothetical situations posited by the defendant as examples of the statute’s overbreadth do not implicate the first amendment rights of expression or association. (See Haywood, 118 Ill. 2d at 275, 515 N.E.2d at 51; People v. Campos (1987), 155 Ill. App. 3d 348, 360-61, 507 N.E.2d 1342, 1350.) We find, therefore, that the defendant lacks standing to challenge the statute as overbroad.

The defendant next argues that the aggravated criminal sexual assault statute violates due process because no mental state is required for conviction, while the less serious offense of aggravated criminal sexual abuse requires an intentional or knowing touching done for purposes of sexual gratification or arousal. The defendant relies on People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676, where the Illinois Supreme Court held that subsection (a)(3) of the aggravated arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20— 1.1(a)(3)) was unconstitutional because it failed to require a culpable intent. It has been held, however, that the aggravated criminal sexual assault statute implicitly requires that the act of sexual penetration must be intentional or knowing. (People v. Smith (1987), 152 Ill. App. 3d 589, 593-94, 504 N.E.2d 850, 852-53; People v. Bartay (1986), 150 Ill. App. 3d 130, 132, 501 N.E.2d 364, 365; People v. Burmeister (1986), 147 Ill. App. 3d 218, 223-24, 497 N.E.2d 1212, 1215-16; see also People v. Finley (1988), 178 Ill. App. 3d 301, 533 N.E.2d 94; People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490; Ill. Rev. Stat. 1985, ch. 38, par. 4—3.) While the sexual abuse offenses require the additional element of sexual gratification or arousal, this requirement is reasonable and necessary because “the touching or apparent fondling which is a part of that offense is likely to occur by accident, negligence, or for a proper purpose, while penetration would seldom happen under such circumstances” (Bartay, 150 Ill. App. 3d at 132, 501 N.E.2d at 365). Both criminal sexual abuse and criminal sexual assault require culpable intent: one the intent to touch or fondle for sexual purposes; the other the intent to commit an act of sexual penetration. We are not prepared to say that the degree of malice or unlawful purpose for the latter offense is less than that for the former. (See Burmeister, 147 Ill. App. 3d at 223, 497 N.E.2d at 1215 (“[T]he legislative determination that sex offenses involving ‘sexual penetration’ are generally more serious than those involving ‘sexual conduct’ is an eminently reasonable one”).) Therefore we find no violation of due process.

The defendant’s final contention is that the aggravated criminal sexual assault statute violates due process because criminal sexual assault is not a lesser included offense of aggravated criminal sexual assault under section 12 — 14(b)(1), and therefore, the aggravated offense is not predicated on underlying criminal conduct. The defendant relies on People v. Johnson (1986), 114 Ill. 2d 69, 499 N.E.2d 470, which held that the aggravated arson statute was unconstitutional because it failed to define an underlying offense. The Johnson court stated:

“The offense of aggravated arson, by its very name, refers to and was intended to define an aggravated offense, that is, an enhanced form of the underlying crime of arson. Subsections (1), (2) and (3) of the aggravated-arson statute prescribed three factors which, if present, were intended to enhance the offense of arson to the more serious crime of aggravated arson. In Wick we pointed out that the flaw in the statute lies in the fact that the underlying conduct which the aggravating factors were meant to enhance was not necessarily criminal in nature. In fact, as previously stated, we pointed out in Wick that the mens rea required by the statute of the offense which is supposedly aggravated (arson) to the more serious offense of aggravated arson is greater than that required by the statute defining the aggravated offense. The fact that the aggravating factor of subsection (1) which we are now considering may constitute culpable conduct by itself is not sufficient to overcome the controlling defect in the aggravated-arson statute noted in Wick.
No doubt the legislature, in enacting section 20 — 1.1, intended to provide for an aggravated form of arson and intended the factors set out in subsections (1), (2) and (3) to enhance the offense from simple arson, a Class 2 felony, to aggravated arson, a Class X felony. However, in doing so it did not define an underlying offense.” Johnson, 114 Ill. 2d at 72, 499 N.E.2d at 472.

The State argues that Johnson is distinguishable because an examination of the sexual assault statutes indicates that the legislature did not intend subsection (b) of the aggravated criminal sexual assault statute to be an enhanced offense of simple criminal sexual assault. Instead, subsection 12 — 14(b) was intended to recodify certain sex offenses against children, not all of which required the use of force. We agree.

Section 12 — 13 of the Criminal Code of 1961 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 — 13) provides:

“Criminal Sexual Assault, (a) The accused commits criminal
sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of force; or
(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or
(3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member; or
(4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.”

Section 12 — 14 of the Criminal Code of 1961 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 — 14) provides:

“Aggravated Criminal Sexual Assault, (a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during the commission of the offense:
(1) the accused displayed, threatened to use, or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon; or
(2) the accused caused bodily harm to the victim; or
(3) the accused acted in such a manner as to threaten or endanger the life of the victim or any other person; or
(4) the criminal sexual assault was perpetrated during the course of the commission or attempted commission of any other felony by the accused; or
(5) the victim was 60 years of age or over when the offense was committed; or
(6) the victim was a physically handicapped person.
(b) The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed; or
(2) the accused was under 17 years of age and (i) commits an act of sexual penetration with a victim who was under 9 years of age when the act was committed; or (ii) commits an act of sexual penetration with a victim who was at least 9 years of age but under 13 years of age when the act was committed and the accused used force or threat of force to commit the act.
(c) The accused commits aggravated criminal sexual assault if he or she commits an act of sexual penetration with a victim who was an institutionalized severely or profoundly mentally retarded person at the time the act was committed.”

The purpose of the Criminal Sexual Assault Act (Pub. Act 83 — 1067, amended by Pub. Act 83 — 1117) was to “recodify the sexual offenses into a comprehensive statute with uniform statutory elements that would criminalize all sexual assaults without distinguishing between the sex of the offender or the victim and the type of sexual act proscribed.” (Haywood, 118 Ill. 2d at 271, 515 N.E.2d at 49.) It is clear that subsection (a) of section 12 — 14 provides for enhancement of the underlying offense of criminal sexual assault when any of the six aggravating factors are present. Subsection (b), however, is not an enhancement provision, but instead defines a separate offense based on the elements of sexual penetration and the age of the victim. Similarly, subsection (c) defines another offense based on the elements of sexual penetration and the disability of the victim. Therefore, because subsection (b) of section 12 — 14 was not intended to merely enhance an underlying offense, but was instead intended to create an alternative offense of aggravated criminal sexual assault, it does not suffer from the same constitutional infirmity as the aggravated arson statute at issue in Johnson.

For the reasons stated above we affirm the judgment of the circuit court.

Affirmed.

WELCH, P.J., and HOWERTON, J., concur.


author: JUSTICE GOLDE NHERSH

text:
    CAROLE ANN FIELD, Guardian of the Estate of Gabrielle Lynette Field, a Minor, Plaintiff-Appellee, v. BOARD OF TRUSTEES, Alton Firemen’s Pension Fund, Defendant-Appellant.
    Fifth District
    No. 5—88—0162
    Opinion filed November 6, 1989.

      William E. Miller III, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant.
    Theodore E. Diaz, of Law Offices of Theodore E. Diaz, of Alton, for appellee.
   JUSTICE GOLDE NHERSH

delivered the opinion of the court:

Defendant, Board of Trustees, Alton Firemen’s Pension Fund, appeals from a declaratory judgment of the circuit court of Madison County finding that Gabrielle Lynette Field, a minor, was entitled to her deceased natural father’s pension benefits following her lawful adoption by Stephen Bruce Field. In this cause, we are presented with a single issue: whether a natural child of a deceased fire fighter is entitled to receive the fire fighter’s pension benefits after the natural child is adopted by another person. This court affirms.

The facts in this case are not in dispute. Elton Lee Hickman, decedent, was employed as a fire fighter by the Alton Fire Department and was a member of the Alton Firemen’s Pension Fund. He was divorced from his wife, Carole Ann Field, in 1977. The divorce decree found that Gabrielle Lynette Field, born October 10, 1976, was the child of the decedent. On July 16, 1985, decedent, who was unable to swim, drowned while wading in deep water. This drowning was not work related. Approximately five months later, on December 27, 1985, Gabrielle Lynette Field was lawfully adopted by Stephen Bruce Field in Harris County, Texas. Gabrielle now lives with her natural mother and adoptive father in Texas.

Initially, defendant refused to pay pension benefits to Gabrielle, but subsequently paid benefits from the date of her natural father’s death to the date of her adoption. Defendant has not paid benefits since the adoption. Carole Ann Field, on behalf of her minor daughter, filed a complaint for declaratory judgment on behalf of her daughter to determine Gabrielle’s rights to pension benefits under the Illinois Pension Code (Firemen’s Pension Fund Act). Ill. Rev. Stat. 1985, ch. IO8V2, par. 4 — 101 et seq.

Defendant basically argues that in order to receive pension benefits under the Firemen’s Pension Fund Act, a child of a deceased fire fighter must establish and maintain the legal relationship of a dependent of the deceased fire fighter. Defendant contends that a means-related dependency rather than a status dependency is required, and, since the minor is now legally adopted by another, she is no longer dependent on her deceased natural father for support. Finally, defendant argues dependency should be measured not only at the time of the fire fighter’s death, but also with the changing circumstances subsequent to the fire fighter’s death, namely, the minor’s adoption. Plaintiff replies that the pension immediately vested upon the death of the minor’s natural father and that his death created an immediate, indefeasible contractual right in the minor child, Gabrielle, to 12% of the deceased fire fighter’s monthly salary. The fact that the minor was subsequently adopted is not specifically made a condition subsequent by the statute so, therefore, the minor’s vested right to the pension was not terminated. We agree with plaintiff.

We find the problem to be one of statutory construction. It is agreed that all parts, provisions, or sections of a statute must be construed together in light of the general purpose and object of the statute, so as to make it harmonious and consistent in all parts. It is, however, a cardinal rule of statutory interpretation that enumeration of certain matters in a statute implies the exclusion of all others. In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 552, 131 N.E.2d 487, 490; People v. Schaffra (1975), 30 Ill. App. 3d 600, 602, 332 N.E.2d 163, 165; People v. Criswell (1973), 12 Ill. App. 3d 102, 298 N.E.2d 391.

In the instant case, the Firemen’s Pension Fund Act (Ill. Rev. Stat. 1985, ch. 108Vs, par. 4 — 101 et seq.) is the controlling statute. Section 4 — 114 of this act provides:

“§4 — 114. Pension to survivors. If a firefighter dies (1) as a result of any illness or accident, or (2) from any cause while in receipt of a disability pension under this Article, or (3) during retirement after 20 years service, or (4) while vested for or in receipt of a pension payable under subsection (b) of Section 4— 109, or (5) while a deferred pensioner, having made all required contributions, a pension shall be paid to his or her survivors, based on the monthly salary attached to the firefighter’s rank on the last day of service in the fire department, as follows:
(a) To the surviving spouse, while unmarried, a monthly pension of 40% of the monthly salary, and to the guardian of any minor child or children including a child which has been conceived but not yet born, 12% of such monthly salary for each such child until attainment of age 18 or until the child’s marriage, whichever occurs first. Beginning January 1, 1984, a minimum pension of $300 per month shall be paid to all surviving spouses.” (Ill. Rev. Stat. 1985, ch. IO8V2, par. 4— 114(a).)

In view of this language, it is clear that the General Assembly made only two provisions under which a minor can lose entitlement to 12% of his or her parent’s pension benefits: (1) attainment of age 18, or (2) marriage. Adoption of a minor is not listed as an occurrence which will result in surrender of a minor’s entitlement to these pension benefits. By this exclusion we find that the General Assembly did not intend to make adoption an occurrence which would terminate pension benefits to minors. In further support of our decision, we find that the General Assembly can and has indicated in another pension fund, the university pension fund (Ill. Rev. Stat. 1985, ch. 108x/2, par. 15 — 101 et seq.) that adoption of a minor will result in surrender by that minor of the status that entitles the minor to payment of benefits. Section 15 — 147 of the university pension fund provides, in pertinent part:

“§15 — 147. Survivors insurance benefits — Dependency conditions. A child is deemed dependent upon his or her natural or adopting father or mother if the child is living with or receiving support from such parent. If the child is not living with or receiving support from such parent, he or she is deemed dependent upon that parent if the child (1) has not been adopted by some other individual, and (2) is not living with or receiving more than x/2 support from his or her stepparent.” (Ill. Rev. Stat. 1985, ch. 108x/2, par. 15 — 147.)

In the above language, the General Assembly has acknowledged instances in which adoption will terminate a minor’s right to pension benefits. Because the General Assembly chose not to include adoption as an occurrence that changes the entitlement of a minor to his parent’s pension fund in the Firemen’s Pension Fund Act, we find that the minor did not forfeit her right to her natural father’s pension benefits.

We further find no merit in defendant’s argument that a means-determined dependency is controlling. Defendant argued that because in 1975 the General Assembly added the word “dependent” before the word “benefits” in section 4 — 115.1 of the Firemen’s Pension Fund Act, the General Assembly intended that in order for a minor to recover pension benefits, that minor had to be financially dependent on the deceased fire fighter. Section 4 — 115.1 provides:

“§4 — 115.1. Eligibility of children. Dependent benefits shall be paid to each natural child of a deceased firefighter, and to each child legally adopted before the firefighter attains age 50, until the child’s attainment of age 18, or marriage, whichever occurs first, whether or not the death of the firefighter occurred prior to November 21, 1975. Benefits payable on account of a child under this Article to children shall not be reduced or terminated by reason of the .child’s attainment of age 18 if he or she is then dependent by reason of a physical or mental disability but shall continue to be paid as long as such dependency continues. Individuals over the age of 18 and adjudged as a disabled person pursuant to Article XIa of the Probate Act of 1975, except for persons receiving benefits under Article III of The Illinois Public Aid Code, shall be eligible to receive benefits under this Act.” (Ill. Rev. Stat. 1985, ch. imk, par. 4-115.1.)

Again, we find that because adoption was not made an occurrence upon which pension benefits would terminate, the General Assembly did not intend to make adoption a reason for termination. Moreover, as plaintiff pointed out in her brief, the word “dependent” can be a generic term applied to all surviving spouses and children, even an independently wealthy widow or child.

The question of dependency is potentially confusing, but we find that in the context of this case, dependency signifies status dependency, not a means-determined dependency. With this in mind, the minor’s right to her father’s pension vested at his death, and she is entitled to these benefits until she reaches age 18 or until she marries. We find that the trial court was correct in determining that the adoption of the minor did not justify termination of pension benefits to her.

For the foregoing reasons, this court affirms the declaratory judgment of the circuit court of Madison County.

Affirmed.

HARRISON and RARICK, JJ., concur.


author: JUSTICE RARICK JUSTICE GOLDENHERSH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. A. WENDELL WHEADON, Defendant-Appellant.
    Fifth District
    No. 5—87—0469
    Opinion filed November 7, 1989.
    GOLDENHERSH, J., dissenting.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville, and Allen F. Bennett &
      Associates, of Decatur (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Garry W. Bryan, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, A. Wendell Wheadon, was found guilty in the circuit court of St. Clair County of theft over $300 by deception (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)(1)) and was sentenced to two years in the Department of Corrections. On appeal, defendant raises the issue whether the State proved him guilty of theft by deception beyond a reasonable doubt. This court affirms.

The facts adduced at trial indicate that on January 11, 1984, members of the Stites Township Park District Board (Board) held a special meeting. The Board was in a state of turmoil and was split into two factions, one of which consisted of Alfred Caldwell, Marva Collins, and Wendell Marshall. According to Wendell Marshall, he was told he was going to be appointed to the Board, but was never actually sworn in. He was present at the January 11, 1984, meeting and these three members discussed the renovation of the Park District building. Other Board members, Arthur Singleton and Edwin O’Bannon, were not present. Defendant, attorney for the Board, was present at the meeting. A vote was taken and it was decided that $5,000 would be issued to defendant for him to seek repairs on the district’s dilapidated building at 500 Madison in Brooklyn. In addition to being the Board’s attorney, defendant is also a licensed engineer. The check for $5,000 issued on January 12, 1984, was made payable to “Denverside Realty,” a company defendant claimed to have operated. The minutes kept by the Board established that the $5,000 check was issued to defendant for him to:

“Prepare specifications for the repair of the District’s building;
Seek bids to perform the work;
Prepare contracts for the work;
Let the contracts;
Inspect the work;
Receive funds for all work, materials and services;
Make disbursements to pay for such work;
Make an accounting and report to the board for all activities related to the rehabilitation of the District’s building;
Enter into negotiations and sign agreements and contracts relating to the above and with Illinois Power Company concerning lights and gas for the building;
Repairs are to be made to at least the following: door, furnace and/or switches, roof, lights, caulking;
Cost of all materials, labor and services not to exceed $5,000.00.”

With respect to his duties on this project, defendant first placed a public notice in the East St. Louis Monitor on January 26, 1984. The legal notice informed the public that the Board was accepting proposals for the rehabilitation of the Park District building. According to defendant, he told Alfred Caldwell, a member of the Board at that time, that he was placing the bid and that he should expect bids to be presented to him; however, the name Sefred Caldwell was placed in the notice, not Alfred Caldwell. Bids on the project were due, according to the ad, on February 13, 1984, at Village Hall, Brooklyn. This is Alfred Caldwell’s work address.

According to defendant, on February 13, 1984, he contacted Caldwell to learn if any bids had been received. Defendant was informed that no bids had been received. Defendant then contacted Robert F. Blackburn, a general contractor, Forest McGraw, a general contractor, and an electrician whose name defendant could not remember, about the project. Blackburn testified that he was contacted by defendant in late 1983 or early 1984 “to get some figures” on a building at Fifth and Madison Streets. He inspected the building and gave defendant an estimate of what the cost would be for the structural damage he detected. Defendant told him it was a rush job and that they needed to secure the building as quickly as possible. There was a lock on the front door, and defendant told Blackburn the name of someone to contact at the police station to get the key, but Blackburn was unable to obtain a key. Blackburn did not get paid for estimating the job, as that cost is generally deducted from the contract. Blackburn estimated that he spent a total of 2xk hours total on this job. As Blackburn was never given money to start on the job, he never began work on rehabilitating the building. McGraw’s inspection of the building was limited to a visual examination of the exterior, after which he gave defendant a verbal estimate on the brick work.

After defendant received replies from Blackburn and McGraw, he testified that he made arrangements with Illinois Power Company to reconnect the lights so that the electrician could inspect the building. A new lock had been placed on the door, and neither the electrician nor Illinois Power could gain entry. At this point, according to defendant, he was prepared to meet with the Board, but the Board became embattled in litigation, members against members, and was ultimately abolished and a new Board put in place.

In mid-January of 1984, Bob White, an investigator with the St. Clair County State’s Attorney’s office, was investigating another matter at a local bank when he learned from a bank employee of the $5,000 check issued to Denverside Realty and cashed by defendant. Further investigation revealed that $3,000 of this check was placed on deposit in a checking account at Southern Bank of Illinois in Fairview Heights in an account in the name of. Denverside Realty. Two money orders were purchased for $299 and $250, respectively. $1,450 in cash was returned to defendant. The $250 money order was subsequently cashed by defendant, and the $299 money order was presented to the Mansion House in St. Louis, Missouri. During January 1984, six checks cleared the account; five checks were signed by, payable to, and cashed by defendant. One check for $250 was presented to Auffenberg Ford. On February 1, 1984, a check for $30 was cashed, leaving a balance of $17.20. In February 1984, a deposit of $3,500 was made. In March 1984, six checks cleared the account. The bank was unable to examine the account further because the bank equipment failed.

White also investigated the Denverside Realty & Development Company and discovered through the recorder of deeds office in St. Clair County that the company had gone out of business several years ago. He was given the last listed address for the company. The address turned out to be a commercial building. White made several attempts to find someone at the building, but attempts were unsuccessful.

Defendant admitted that he had cashed checks on the Denverside account, but he did not consider the money to be public money. He considered the $5,000 to be his fee for rehabilitating the building. Marva Collins, Alfred Caldwell, and Wendell Marshall all gave different accounts of what the $5,000 was to be used for.

It was Ms. Collins’ understanding that defendant would not actually do the work. He would determine the costs of the repairs and report back to the Board. There was to be a follow-up meeting to approve having the work done, but Ms. Collins did not attend any more meetings. She is no longer a member of the Board.

Alfred Caldwell testified that Mr. O’Bannon and Mr. Singleton were in the room, but did not participate in the meeting. Caldwell agreed with Ms. Collins that a check for $5,000 was given to defendant, but said it was to cover expenses of getting the work done. It was not a salary for defendant. Defendant was to bring bids to the Board on the work to be done. Mr. Caldwell never heard what happened to the $5,000 and did not receive bids for the work. He attended two or three meetings after the issuance of the check, but he is no longer a member of the Board.

Wendell Marshall agreed that he attended the January 1984 meeting but could not recall if he ever voted, although he thought a vote was taken. He did remember that Ms. Collins, Mr. Caldwell, and defendant discussed how the $5,000 was to be used.

Edwin O’Bannon testified that he was not at the meeting on January 11, 1984. He agreed that the Board was having difficulties and had been brought before the grand jury sometime before January 1984. It was his opinion that the Board had been given instructions not to conduct Park District business unless it was approved by the State’s Attorney’s office.

Defendant had recently been convicted of conspiracy to defraud, bribery, embezzlement, and tax evasion in Federal court. He had no records to indicate that he reported the $5,000 as income to the Federal government through tax forms. As of the date of the trial, defendant had not completed his 1984 tax returns, but had asked for an extension.

Defendant specifically argues there was insufficient evidence of deceit or criminal intent to prove him guilty beyond a reasonable doubt; therefore, his conviction must be reversed. According to defendant, the evidence raises a reasonable doubt that he obtained the $5,000 by deceiving the Board and that he intended to permanently deprive the Board of the use and benefit of its money.

The State has the burden of proving each element of an offense. Elements of the offense of theft by deception are that the owner of the money be induced to part with it, that the transfer of money be by deception, and that the recipient intend to permanently deprive the original owner of the money. (People v. Jensen (1982), 103 Ill. App. 3d 451, 454, 431 N.E.2d 720, 722.) There can be no question that the Board was induced to part with $5,000; and indeed, Wheadon raises no argument with respect to this element. Wheadon instead argues that there was insufficient evidence that he deceived the Board or that he intended to permanently deprive the Board of the money.

The minutes of the January 11, 1984, Board meeting clearly specify the tasks defendant was hired to do. Although the various Board members gave conflicting testimony as to their recollection of the meeting, the minutes themselves clearly indicate that the $5,000 was to pay for the repair work and was not a fee for the defendant. The only task defendant performed, however, was to run ads in the newspaper seeking bids and to consult with two general contractors. Although given estimates, the defendant took no action on them, nor did he seek other estimates. Over the next 2xlz years he did nothing. Immediately after receiving the $5,000 check, issued to a company which no longer existed, defendant converted the money to his own personal use. Defendant argues that failure to fulfill a contract is not proof of intent to defraud, but the evidence demonstrates that Wheadon did more than simply fail to perform on a contract. A check was issued to pay for repair work on the building, and the minutes of the meeting make clear that the money was to pay for the work. Wheadon, however, immediately converted the money to his own use and made only a token pretense of fulfilling the contract.

Wheadon points to a letter written in June 1984 as evidence of his lack of felonious intent. Defendant testified that in May 1984, he learned that an ad hoc committee had been created. Defendant knew one of the ad hoc members, Mr. Howard, so defendant wrote to him about defendant’s involvement in the project. The letter, written on Denverside Realty & Development Construction Management Division letterhead and addressed to Stites Township Park District, do Mr. Willie Roy Howard, 715 Washington, Brooklyn, Illinois, 62059, reads as follows:

“Dear Sir:
It has recently come to my attention that the Stites Township Park District ‘Board of Commissioners’ are discussing ways and means of rehabilitating the current District Building.
Please be advised that Denverside Realty and Development has been retained to prepare the specifications and rehabilitation plans, prepare pre-bid documents, administer the bidding process and inspect the work to be done and perform other services as directed. Denverside Realty and Development received a partial retainer to perform this work and has expended many hours in planning the job.
Be further advised that Denverside Realty and Development stands ready to meet with your board or any other group to discuss the plans and scheduling of the work.”
Yours truly,
Is! A.W. Wheadon A.W. Wheadon”

Although Wheadon testified that he considered the $5,000 a fee for performing these services, the minutes of the Board meeting make clear that the $5,000 was to cover the total cost of the project and was not a “partial retainer” to compensate Wheadon for pushing paper. We also note that this letter was written several months after the investigation had started. In light of the minutes of the Board meeting, and given Wheadon’s immediate conversion of the money to personal use, and his almost total lack of effort to have the work done, this letter is of little persuasive value.

The determinations of a trial court are entitled to great deference, and a finding of guilty cannot be set aside on review unless the court’s finding is “palpably contrary to the [evidence] or so improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused.” (People v. Nix (1985), 133 Ill. App. 3d 1054, 1059, 479 N.E.2d 1147.) We find it impossible to so conclude. It is not for a court of review to reweigh the evidence and substitute its own judgment for that of the trial court. The evidence must be reviewed in a light most favorable to the prosecution, and the conviction must be affirmed if any rational trier of fact could have found the defendant guilty based upon the evidence presented. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) After reviewing the evidence, we conclude that it is sufficient to support a finding of guilty and therefore affirm the conviction.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

CHAPMAN, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

This appeal involves a series of facts which the majority opinion concludes is sufficient to prove defendant guilty of theft over $300 by deception. (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)(1).) I do not agree with that conclusion. I, therefore, respectfully dissent. There is no dispute that the first element of the offense was proven. The Board was induced to part with $5,000. After carefully reviewing the evidence, however, I find that the State failed to meet its burden of proof on either of the other two elements, deception and permanent deprivation, so the conviction must, therefore, be reversed.

In order to sustain the deception and permanent deprivation elements, it is necessary to show that defendant deceived the Board into giving him the $5,000 and had no intention of ever rehabilitating the building. Undoubtedly, defendant’s almost immediate conversion of the $5,000 is damaging. So, too, are the minutes of the January 11, 1984, meeting which clearly set out the tasks defendant was hired to do. However, even the Board members in attendance at that meeting were not in agreement about defendant’s role in the rehabilitation of the building. Finally, the investigation into the Denverside Realty Company done by the St. Clair County State’s Attorney’s office was damaging to defendant. In affirming the conviction, however, the majority almost totally ignored defendant’s evidence. A defendant’s failure to fulfill a contract is not proof of a specific intent to defraud. (People v. Rolston (1983), 113 Ill. App. 3d 727, 448 N.E.2d 965; see also People v. Jensen (1982), 103 Ill. App. 3d 451, 431 N.E.2d 720.) Moreover, a business man who receives a down payment can be expected to utilize that money. Even if the funds are used for the proprietor’s personal expenses, that action is not proof of felonious intent. 113 Ill. App. 3d at 732, 448 N.E.2d at 968.

Although the circumstantial evidence is damaging to defendant, I find that the State failed to prove that defendant intended to permanently deprive the Board of the money. Defendant’s actions following his receipt of $5,000 constitute a reasonable doubt. Criminal intent and deception are lacking where defendant placed an ad in a newspaper requesting proposals for bids on the rehabilitation of the Park District building. Although no bids were submitted, this does not necessarily mean defendant was not doing his job. There is a fair inference that no one was interested in the work offered. The letter written to the Board in care of Mr. Howard is dispositive of the fact that defendant had no criminal intent. Had he intended to deprive the Board permanently of its $5,000, no letter would have ever been written.

The majority finds this letter to be of little persuasive value because it was not written until June 1984, and the State’s Attorney’s office learned of the $5,000 check sometime in the middle of January. What the majority opinion fails to consider is the complete disarray the Board was in at this time. The State’s investigation in January was directed toward the Board itself, not defendant. Had defendant not written a letter to the ad hoc Board explaining his receipt of $5,000, apparently no action would have been taken against defendant. Once the Board was made aware of this disbursement to defendant, it made no attempt either to get back the $5,000 or to have defendant complete the work. Defendant received no reply to his letter until nearly 10 months later when he was indicted on this charge.

By this dissent, I do not mean to infer that I condone defendant’s actions. As an attorney on retainer, he certainly owed more to the Board than he provided them. However, as an attorney, he cannot be held to any higher standard as a criminal defendant. While reasonable persons might suppose or conjecture that defendant did not intend to do the work, proof of this element must meet the same evidentiary standard of guilt beyond a reasonable doubt that is applicable to every criminal offense. The State failed to prove beyond a reasonable doubt that defendant obtained the money by deception and that he intended to permanently deprive the Board of its money.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAVERN HEIDELBERG, Defendant-Appellant.
    Fifth District
    No. 5—88—0475
    Opinion filed November 8, 1989.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was convicted in a bench trial of criminally sexually assaulting his stepdaughter, LeVita, in violation of section 12— 13(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(3)).

LeVita testified that she had sexual intercourse with defendant in mid-June 1987. She also testified that she had had sexual contact with defendant since she was nine years old and sexual intercourse with him on a regular basis since she was 11. She testified that defendant had promised not to “mess with” LeVita’s younger sister as long as LeVita told no one about their sexual relationship.

Defendant confessed, and his signed written statement was admitted into evidence. The statement said in part:

“Mr. Heidelberg stated that he did have sex with his step daughter LaVitta [sic] age 16. *** He stated that he was in the bed and that she came in and layed [sic] on the floor next to the bed. The Juvenile then took off her cloth [sic] and got in the bed with him. Mr. Heidelberg stated that he became weak and had sex with her.”

Defendant, sentenced to nine years in the Department of Corrections, appeals. We affirm.

Defendant first argues that the criminal sexual assault statute is unconstitutional because criminal sexual assault, which is punished as a Class 1 felony, requires no mental state while the less culpable offense of criminal sexual abuse, which is punished as a Class A misdemeanor, requires an intentional or knowing touching done for purposes of sexual gratification or arousal. (See Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 12(e), (f).) In support of his argument, defendant relies on People v. Wick (1985), 107 Ill. 2d 62, 65, 481 N.E.2d 676, 678, wherein the supreme court of Illinois found that the aggravated arson statute was constitutionally infirm because aggravated arson, which is punished as a Class X felony, required a “lesser degree of malice or unlawful purpose” than simple arson, which is punished as a Class 2 felony.

Defendant’s argument, however, has been fully discussed and rejected by the Illinois Supreme Court. (People v. Terrell (1989), 132 Ill. 2d 178.) Accordingly, we follow the analysis in Terrell and hold that a mental state of either intent or knowledge will be implied for offenses involving sexual penetration and that the statute, therefore, does not punish innocent conduct or set up an unconstitutional anomaly between the lesser and greater offenses. People v. Terrell (1989), 132 Ill. 2d 178, 210.

Defendant next argues that the circuit court erred in admitting hearsay from Roberta Heidelberg, LeVita’s mother and defendant’s wife, and from Dr. Susan Heney, LeVita’s examining physician, as to what LeVita told them about sex between defendant and her.

Roberta’s testimony is examined first. The record is:

“Q. Did you happen to have a conversation with your daughter LeVita about her acts that happened between your husband and her?
MR. TRENTMAN: Your Honor, I’m going to object to the form of the question, where he’s asking — in essence he’s asking the content of that hearsay conversation.
MR. HATCH: I’m not asking for the content. I’m just asking if she had a conversation.
THE COURT: Overruled. You may answer.”

The State seems to believe that because the question is styled as one asking only if there was a conversation, the hearsay rule is avoided. That belief is erroneous. Roberta answered by saying she had talked with LeVita; as soon as she said she had, the State’s Attorney then asked if she confronted defendant with those allegations; she said she had, and defendant had made an admission. So, the operative words were: conversation with LeVita concerning those acts; conversation with defendant about those allegations; and defendant made an admission that he had had sex with LeVita. In this context, the question taken with the answers show that the State intended this testimony as an assertion. (See Fed. R. Evid. 801(a).) In this context, what LeVita told her mother was not veiled with even a “see through” cloak. What she told her mother, although unspoken, thundered to the judge, gathering volume as his imagination was set in motion. That the judge took it as an assertion is clear, because he found that “there is corroboration of the testimony of the complaining witness in the form of the statements made by the victim to her mother.” Therefore, we treat the question as one that called for a hearsay answer, and we treat it as if what was suggested, subliminally and powerfully, had been spoken, that is, as if Roberta had testified that LeVita told her she had been having sex with defendant.

LeVita told her mother, Roberta, that she had been having sex with defendant; she told Roberta this one month after the sex act. Roberta testified to what LeVita had told her. Defendant argues the testimony was hearsay, not qualifying as either a spontaneous declaration or prompt complaint of rape, because enough time had passed between the act and LeVita’s declaration that a court could not find absence of motive to fabricate.

Defendant ignores three points.

First, Roberta went on to testify that she immediately confronted defendant. Her testimony is so salient, so startling, that it most assuredly deserves reproduction here. She said:

“Q. Okay. And after you had that conversation with your daughter, did you have a conversation with the defendant about those allegations?
A. Yes.
Q. Okay. What did your husband say when you confronted him?
A. When I confronted him, he told me that [he] hadn’t been messing with my youngest daughter because he was too busy messing with my oldest daughter.”

LeVita is the oldest daughter.

Roberta was turned over to defendant for cross-examination.

The very first, the very first, question to her on cross was:

“Q. Mrs. Heidelberg, to the best of your recollection, those were his exact words?”

She answered, “Yes.”

Defendant not only failed to object to Roberta’s testifying to LeVita’s declaration to her, but cross-examined on it. Where a defendant fails to object to testimony and elicits the same or similar testimony on cross-examination, any error in admitting the testimony is waived. People v. Douglas (1989), 183 Ill. App. 3d 241, 257, 538 N.E.2d 1335, 1346.

Furthermore, there is nothing in defendant’s post-trial motion regarding Roberta Heidelberg’s testimony. Therefore, it is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 538 N.E.2d 1255.

Second, had there been error in admitting Roberta’s testimony relating LeVita’s declaration to her, it is harmless in light of defendant’s admission of guilt to Roberta.

Third, defendant ignores his own written, signed confession; that confession, in this case, renders harmless the admission of hearsay. See People v. Cooper (1989), 188 Ill. App. 3d 971.

As to defendant’s complaint that Dr. Heney was allowed to testify to hearsay, we here reproduce the record. Dr. Heney testified on direct:

“Q. Okay. Now going back then to LeVita Williams on September 21st of last year, what was the purpose of your examination, physical examination?
A. She presented to the sexual abuse clinic with the Division of Family Services worker. She complained — her immediate complaint was that she had been sexually abused over a long period of time by her stepfather, beginning at about age 9 or 10.
MR. TRENTMAN: Your Honor, I’ll object to this as being hearsay.
MR. HATCH: I’ll try to steer away from what the child told her.
THE COURT: Okay.”

The defendant’s objection was neither sustained nor overruled and no further comment was made concerning the content of LeVita’s complaint. Defendant failed to include the issue of improper corroborating testimony in his post-trial motion. The issue is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 538 N.E.2d 1255; People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261.

The circuit court is affirmed.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.