author: JUSTICE STEIGMANN JUSTICE GREEN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY JOE DEAVERS, Defendant-Appellant.
    Fourth District
    No. 4—90—0766
    Opinion filed October 24, 1991.

      GREEN, J., specially concurring.

      Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Billy Joe Deavers, was convicted by a jury of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(c)(1)) and sentenced to concurrent four-year prison terms on each count. Defendant appeals, arguing (1) the trial court erred by admitting testimony of the victim’s out-of-court statements, (2) the jury instructions failed to include a mental state, and (3) the State introduced irrelevant and inflammatory evidence that deprived defendant of a fair trial.

We affirm.

I. Facts

Defendant was indicted in July 1989. Count I of the indictment alleged that he committed the offense of aggravated criminal sexual abuse between September 1 and December 31, 1988, in that he committed an act of sexual conduct with C.D., involving his hand and the vagina of C.D., at a time when he was over 17 years of age and C.D. was under 13 years of age. Count II alleged the same acts, only this time they were alleged to have occurred between January 1 and March 31,1989.

In January 1990, the State filed a supplemental answer to the defendant’s motion for discovery in which the State indicated, pursuant to section 115—10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115—10), that it intended to call Jeff Elston and Brian Corley to testify about what C.D. told them concerning the sexual contact between her and defendant. In September 1990, immediately prior to the commencement of defendant’s jury trial, the court conducted the hearing required by section 115—10 of the Code and determined that both Elston and Corley would be permitted to testify about what C.D. told them.

Elston then testified before the jury that he was a detective with the McLean County sheriff’s police and he met with C.D. at her school in Bloomington on May 5, 1989. C.D. was then five years old. Also present at that meeting were two investigators from the Illinois Department of Children and Family Services (DCFS) and the school’s principal. Elston informed C.D. that they had information that defendant, her stepfather, “had been touching her inappropriately” and that they needed to talk to her about that. To assist C.D., Elston brought four anatomically correct dolls to the interview. Two bigger dolls were to represent adults and two smaller dolls were to represent children; one of each size doll was male and the other was female.

C.D. told Elston that defendant had touched her “in a manner that she didn’t like,” demonstrating on the doll that defendant had touched the area of C.D.’s vagina with his hand. C.D. indicated that defendant had done this to her between 5 and 10 times. The best she could remember was that it occurred approximately three months prior to Christmas 1988. C.D. told Elston that she did not like defendant touching her in that manner and that she was scared of him. In response to Elston’s question, C.D. stated that she had never been hit or disciplined so as to leave any bruises or marks on her person.

On May 8, 1989, Elston questioned defendant, who denied any sexual contact with C.D. Defendant initially stated that he had never lain in bed with C.D. nor on top of her, and that the extent of his physical contact with C.D. was that he would lean over to kiss her goodnight when he put her to bed. However, toward the end of this interview, defendant recalled that about a month earlier, he had lain down with C.D. for a “discipline purpose” because she had been “messing around with the stereo.” Defendant said that his doing so was not “in a sexual gratification manner.”

Four days later, on May 12, 1989, Elston again interviewed defendant, who then recalled some other incidents. Defendant recalled one incident where he walked into the bathroom while C.D. was bathing, and he became sexually excited because he noticed that she was developing breasts. Defendant also mentioned another incident where he and his wife were sexually active in the bedroom when his wife asked if he had tucked C.D. into bed and told her goodnight. After he told his wife he had not, he went into C.D.’s bedroom to do so. He told Elston that as he did so, he was still sexually excited and aroused.

Corley testified that he was a school psychologist employed at the time of trial by the University of Illinois. In the spring of 1989, he worked with the Bloomington school district to do case study evaluations of certain children to determine their intellectual and cognitive functioning and their academic achievement. He conducted these studies to help make recommendations for the next year’s school placement.

On May 4, 1989, as part of this contract, Corley met with C.D. at her school and conducted an evaluation of her that lasted IV2 hours. C.D.’s mother, Anita Deavers, brought C.D. to the evaluation and chose to go home and come back later to pick up C.D. In May 1989, C.D. was completing kindergarten. Corley testified that about 30 minutes into the evaluation, C.D. “spontaneously started talking about her home life.” C.D. told Corley that she was always getting in trouble and being spanked or sent to the corner or put in bed. In her conversation with Corley, C.D. referred to her father as a “wimp.” When asked what wimps do, C.D. explained that “ ‘wimps make you stand in the comer or go to your room.’ ” When Corley asked if C.D. liked it when she was sent to bed, she said, “ ‘No, because my dad lays on top of me.’ ” Corley then asked her if “dad touched her in bed,” and she indicated that he did on the cheek, mouth, and leg. When Corley asked her to show him what places she meant, she hesitated but then “indicated all those [places] and also the pelvic region.” C.D. demonstrated how defendant touched her by robbing one of her fingers up and down in the area of her vagina. When Corley asked C.D. if she needed any help because of all this, she said no, because she “was afraid that her dad would get in trouble.” C.D. then indicated to Corley that they should get back to what they previously were doing, so Corley finished his evaluation. C.D. made no further reference to Corley of any type of contact with defendant.

The next morning, Corley called DCFS and told them what C.D. had told him. Since that time, he had not had any further contact with C.D.

C.D. testified at trial that she was 7V2 years old and in the second grade. When she was in kindergarten, she lived in a trailer in Bloomington with defendant, her mother, and her three brothers and sisters. She testified that there were times when she was in bed in the trailer that defendant would come into her bedroom and touch her in places that she did not like. She was able to recall one incident before Christmas and another around Easter. These incidents occurred at night when she was wearing a nightgown and underpants. Defendant, while wearing only underwear, would get into C.D.’s bed. When asked where defendant would touch her, C.D. said, “touch me in parts that he is not supposed to. *** My pee-pee and, um, that’s all.” On further questioning, C.D. explained that her “pee-pee” was between her legs, the part of her she uses “to go to the bathroom.” C.D. testified that defendant did not put his fingers underneath her underpants when he touched her.

C.D. testified that she told her mother about defendant’s touching her, but C.D. could not remember when she did so. C.D. also remembered telling a man at school who was giving her some tests. She said she told the man because she wanted some help from him — “for it to stop.” She did not like it when defendant touched her there, and it made her feel bad.

C.D. also remembered showing some people who brought dolls to the school what defendant had been doing to her. She testified that everything she showed those people had really happened between her and defendant.

C.D. testified that defendant was never mean to her by hitting her or hurting her, other than touching her where she did not want him to. She indicated that she had no wish to want to get back at him or hurt him. She further testified that she did not want defendant to get into trouble, but she wanted “to make sure it stopped and he does not do it again.”

C.D.’s mother, Anita Deavers, testified that she married defendant in December 1985 and they were currently living together in Bloomington. She and defendant had lived together before they were married. When she first met defendant, she had two children, C.D., who was not quite a year old, and C.D.’s older brother. Anita said that defendant was 32 years old at the time of trial.

Anita testified that in May 1989, she took C.D. to school to receive an evaluation. After that evaluation, Anita said she first became aware of the allegations C.D. made against defendant. Anita testified that she never saw defendant touch C.D. in a sexual manner.

Anita also testified that C.D. once told her, when a Catholic Social Services caseworker was present, that C.D. had lied about “the whole thing — that she had made it up.” This conversation with C.D. took place sometime after Christmas 1989 at one of Anita’s weekly visits with her children, who were then in foster placement.

Anita denied telling Elston that defendant had touched C.D. in a sexual manner or that she was afraid of defendant because of prior incidents in which he physically abused her, including one wherein he hit her with his fist and knocked her unconscious. She also denied telling Elston that if defendant knew she was talking to the police, she was afraid he might kill her. However, she admitted telling Elston that defendant had told her not to talk to the police because anything she said could be used against him.

Anita then identified a document that contained questions she was asked and answers she gave to Elston on June 26, 1989. When Anita was confronted with specific questions and answers from that document, she claimed not to have given the answers. She did acknowledge,. however, that she signed the two-page document on both its first and second pages.

Anita was similarly confronted with statements she gave to Ellen Schroeder of the McLean County sheriff’s department which were to the same effect as the statements she made to Elston. Anita also admitted that she testified in a previous hearing that there was one incident in which she saw defendant sexually abuse C.D.

Ellen Schroeder of the McLean County sheriff’s department testified that on May 11, 1989, she assisted Elston in questioning defendant. She testified that defendant told her that on many occasions he would crawl into C.D.’s lower bunk bed in order to kiss her goodnight. He also said he would occasionally get into bed with her to discipline her when she had done things that made him angry. Defendant told Schroeder that he would stay in bed with C.D. approximately five minutes at a time, and that he would be wearing underwear or gym shorts at the time. He also told Schroeder that on occasion C.D. would be asleep against the wall and he would end up lying on top of her.

Schroeder testified that when she first started questioning defendant, he denied any type of sexual contact with C.D. Later during that same conversation, he admitted there were times when he was sexually aroused, such as once when defendant had been having sexual relations with his wife and she asked him to go into C.D.’s bedroom to kiss her goodnight. Defendant said he did so and that he had an erection when he crawled into bed with C.D. He also admitted to Schroeder that once when he saw C.D. nude in the shower, “ ‘it excited him.’ ”

Schroeder testified that she interviewed Anita, who stated that she had seen defendant paying a lot of attention to C.D. and “ ‘rubbing [C.D.’s] front.’ ” Anita believed that he may have been rubbing C.D.’s crotch area. Anita also told Schroeder that she wanted to make sure defendant did not know she was at the sheriff’s department because Anita was afraid he would kill her. She told Schroeder that defendant had asked her not to speak to anybody at the sheriff’s department.

The State recalled Elston, and he testified that he asked Anita whether she had ever seen defendant touch C.D. in a sexual manner. Anita told Elston that she saw defendant do so on one occasion: While they were sitting in the living room of their trailer watching TV with C.D. on defendant’s lap, defendant “ ‘moved his hand toward her groin area and started to rub her in the crotch or vagina area.’ ” Anita described defendant’s touching C.D. as the same actions he used in touching Anita when he was sexually aroused. Anita told Elston she did not come forward before with that information because she was scared of defendant due to his beating her in the past. She told Elston that defendant told her not to speak to the police and she feared that if he knew she had, he might kill her.

The written statement Elston obtained from Anita (with which Anita had earlier been confronted at trial) was given to Anita on June 26, 1989, with instructions that she read it over and make any corrections, additions, or deletions she would like. Elston testified Anita read the document, made no corrections, and signed it at the bottom of each page. Anita’s written statement was then received into evidence pursuant to section 115— 10.1 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.1).

After the State rested, defendant called Robin Marshall to testify. Marshall said she was a caseworker with Catholic Social Services and had worked with C.D. for about seven or eight months after June 1989, when C.D.’s allegations first became known. Around Thanksgiving or Christmas 1989, when Marshall was transporting C.D. to visit her mother, C.D. said to Marshall, “Why can’t I go home, I lied about it anyway.” At the time, C.D.’s older brother was in the car and C.D. was talking with him about making visits to see their mother. No one was in the car besides Marshall and the two children.

Later that same day, C.D. again told Marshall that she had lied “about the whole thing.” Marshall also testified that at the time of this conversation, C.D. had been in several different foster homes and separated from her brothers and sisters. Marshall testified that C.D.’s statements were made right before the holidays of Thanksgiving and Christmas and C.D. was getting very homesick. Marshall also testified that during C.D.’s later visit with Anita, C.D. said, “Mom, can I go home, now that I said I lied?” After Marshall explained to C.D. that just because she said she lied, she would not be going home, C.D. never again said she lied and made it all up.

Defendant testified and denied that he ever had any sexual contact with C.D. He explained that the officers who testified about his conversations with them must have misunderstood what he said. He specifically denied telling Schroeder that he became sexually aroused when he saw C.D. in the bathroom.

On the foregoing evidence, the jury convicted defendant of both counts of aggravated criminal sexual abuse.

II. Admissibility Under Section 115—10 Of The Victim’s Hearsay Statements

As stated previously, the State called two witnesses, Elston and Corley, to testify about statements C.D. made to them concerning defendant’s sexual contact with her. The court admitted these statements pursuant to section 115 — 10 of the Code, which reads as follows:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12—13 through 12—16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115—10.

In accordance with section 115—10(b)(1), the court conducted a hearing outside the presence of the jury to determine if “the time, content, and circumstances of the statements] provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(b)(1)-) Elston and Corley testified at that hearing substantially as we have described their later testimony before the jury. After the court heard Elston’s testimony, it overruled defendant’s objection to the admissibility of that testimony under section 115—10 and made the following findings:

“Well, from what the Court has heard thus far about the statements made by the victim to the officer, I guess the Court doesn’t have any problem about those meeting the requirements at this point of section 115—10(b)(1). It appears the statements were received in a neutral or friendly environment even as far as the victim is concerned, at school in a meeting room there, with at least someone that she knew from the past and presumably in a good context, the principal, and one of the people who were there. It doesn’t seem to the Court that the interview was conducted in a suggestive way, but rather the victim was given the opportunity to explain what it was that occurred and even demonstrate that as opposed to being prompted to give specific type answers to suggestive questions. And it — although there may be as suggested here some inconsistencies, it seems to the Court that the statement would be— the statement made to Officer Elston would be able to be presented to the jury.”

After hearing Corley’s testimony, the court overruled defendant’s objection to its admissibility and explained its ruling as follows:

“Well, there is no question it is hearsay. The question is whether it is admissible under 115 — 10. It seems to the Court a couple things here. One is that this meeting between this last witness, Mr. Corley, and the victim took place one day prior to the meeting with Officer Elston and the others. And what she described as the sexual contact between the male and herself and her demonstration of that was consistent both times.
The purpose initially at any rate of the May 4th meeting had to do with school activities and school academic achievement. It had nothing to do with any incident such as this. But the victim apparently wandered off the purpose for the meeting and into other areas initially that resulted in follow-up questions by the gentleman who was there for the purpose of testing.
I think the Court’s view would be that this being also in a neutral or friendly environment, at the school, and there not being any unnecessarily or improperly suggestive questions, it seems to the Court that this information as far as what the victim told this individual would be admissible evidence for the jury’s consideration as well. So the Court thinks that is appropriate also.”

On appeal, defendant argues that the trial court erred in permitting both Elston and Corley to testify under section 115—10 of the Code about C.D.’s statements to them. The gist of defendant’s argument is that the “time, content, and circumstances” of C.D.’s statements do not provide sufficient safeguards of reliability as required in section 115—10(b)(1) of the Code. For instance, defendant argues that in C.D.’s conversation with Corley, she called her father a “wimp” and said “wimps punish little girls and send them to their rooms.” Later in that conversation, C.D. told Corley that defendant got into bed with her and would touch her in various places, including her crotch area. Based upon this sequence of events, defendant claims that “[t]he circumstances of this statement are suspect, given that she made them directly after making derogatory statements about [defendant] to Corley.” Defendant cites other circumstances that he claims adversely affect the reliability of C.D.’s statements, such as that Corley allegedly initiated the discussion of whether defendant touched her while he was in bed with her and that C.D. was unsure about when defendant’s sexual contact with her occurred.

Defendant argues that C.D.’s statements to Elston are unreliable because of the large number of authority figures present in the principal's office when the statement was given. Defendant maintains that the presence of Elston, two DCFS workers, and the principal “was conducive to [C.D.’s] repeating the same story she had given Corley the previous evening, regardless of its truth.” Defendant also complains that Elston’s mode of questioning was occasionally leading and that the trial court was mistaken in its characterization that C.D.’s statement was given “in a friendly atmosphere.”

In support of his arguments, defendant cites People v. Zwart (1990), 208 Ill. App. 3d 407, 567 N.E.2d 373, appeal allowed (1991), 137 Ill. 2d 672, 571 N.E.2d 155, in which the First District Appellate Court reversed a conviction of aggravated criminal sexual assault on the ground that the trial court improperly admitted hearsay statements of the victim under section 115—10 of the Code. (Zwart, 208 Ill. App. 3d at 412, 567 N.E.2d at 376.) The court in Zwart explained its decision as follows:

“We find that the statements are inadmissible because the facts in the case at bar indicate that there were insufficient safeguards of reliability with respect to the timing of the allegations and with respect to circumstances under which the allegations were made. There were insufficient safeguards of reliability with respect to the timing of the declarations because during the physical examination and the subsequent interview the victim failed to identify anyone as having sexually abused her. Furthermore, there was a time lapse between when the acts occurred and the first time that she allegedly told her mother of the acts. There were insufficient safeguards of reliability with respect to the circumstances surrounding the allegations because [the victim’s mother] had had a sexual relationship with defendant, and the allegations were made after [defendant and the victim’s mother] quarreled. -
The trial judge conducted a hearing to determine the time, content, and circumstances of the statement pursuant to the Code. However, we find that the time and circumstances of the statement provide insufficient safeguards of reliability because of the time lapse, [sic] between when the acts occurred and the first time the victim told her mother about the acts. The child failed to allege sexual abuse during the physical examination on June 30 [five days after defendant allegedly sexually assaulted the victim] or during the interview which followed. Therefore, the statements are inadmissible pursuant to section 115—10 of the Code.” (Emphasis in original.) Zwart, 208 Ill. App. 3d at 412, 567 N.E.2d at 376.

We disagree with the Zwart court’s decision and its analysis of section 115—10 of the Code. First, the Zwart court, while reversing the trial court’s determination that “there were insufficient safeguards of reliability” to justify the admission of the victim’s statements under section 115—10 of the Code, never states what standard of review it employed in reaching that conclusion. Clearly, a court of review cannot be permitted to simply substitute its assessment of the evidence for that of the trial court (which actually saw and heard the witnesses who testified on the issue) when it reviews a trial court determination that hearsay statements are admissible under section 115—10 of the Code. We hold that the appropriate standard of review on this issue is the following: Was the trial court’s determination clearly contrary to the manifest weight of the evidence? We note that this is the same standard of review generally applicable to findings made in criminal cases other than the guilt or innocence of the accused. See People v. Newbern (1991), 219 Ill. App. 3d 333, 359 (applying this standard of review when considering defendant’s claim that the jury should have found defendant proved the presence of a mitigating factor, so as to reduce his conviction from first degree murder to second degree murder); People v. Jackson (1991), 145 Ill. 2d 43, 102 (applying this standard of review when considering defendant’s argument that the trial judge, when resolving a Batson question involving jury selection (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712), erroneously determined that the prosecutor’s explanations were credible).

We also disagree with the weight accorded by the Zwart court to the time lapse between the victim’s statements and the defendant’s criminal behavior. We do not believe that the word “time” as used in section 115—10(b)(1), to be considered when the court assesses the reliability of the victim’s hearsay statement, means simply the length of the duration of the time lapse between the criminal conduct and the statement, especially when very young children are involved. Instead, we believe the focus of the court under section 115—10(b)(1) of the Code should be on events that may have occurred during the time lapse in question, whatever its duration may have been, that could adversely affect the statement’s reliability.

We further disagree with the weight given by the Zwart court to (1) the victim’s failure to identify the alleged perpetrator of the sexual assaults, and (2) the victim’s allegations being made after the victim’s mother and the defendant had quarreled.

We agree with the United States Supreme Court’s view that no mechanical test for determining particularized guarantees of trustworthiness or reliability of a victim’s hearsay statements is appropriate. (Idaho v. Wright (1990), 497 U.S. 805, 822, 111 L. Ed. 2d 638, 656, 110 S. Ct. 3139, 3150.) Instead, trial courts should examine the totality of the circumstances surrounding a victim’s statements to determine if they were reliable. In the present case, our review of the record satisfies us that the trial court appropriately did so when it decided to admit the victim’s statements under section 115 — 10 of the Code. The trial court’s determination was not clearly contrary to the manifest weight of the evidence.

In so holding, we disagree with defendant’s characterization of the circumstances surrounding C.D.’s statements. C.D.’s failure to complain earlier to anyone about defendant’s criminal behavior does not necessarily diminish the reliability of her later statements; instead, such delay merely presents a factor for the trial court to consider when evaluating the totality of the circumstances. We agree with the observation of the court in People v. Priola (1990), 203 Ill. App. 3d 401, 414, 561 N.E.2d 82, 92, that “the failure of a young sex ual assault victim to make a prompt complaint is easily understandable because of the natural sense of shame, fear, revulsion, and embarrassment felt by children under such circumstances.” In the present case, C.D.’s delay in reporting defendant’s criminal behavior may be further explained by C.D.’s awareness that her own mother failed to stop defendant’s criminal conduct when C.D. knew her mother was aware of that conduct.

Furthermore, we disagree with the weight defendant attaches to the fact that C.D.’s statements were partially in response to questions asked by Corley and Elston. Again, we view that as just one factor for the trial court to consider when it evaluates the totality of the circumstances and determines the admissibility of C.D.’s statements under section 115—10 of the Code. People v. Morton (1989), 188 Ill. App. 3d 95, 104, 543 N.E.2d 1366, 1372.

For the reasons stated, we affirm the trial court’s determination that C.D.’s hearsay statements to Corley and Elston were admissible under section 115 — 10 of the Code.

III. Jury Instructions Were Proper Even Though They Contained No Mental State

Defendant next argues that as a matter of State and Federal constitutional law, his convictions must be reversed because the jury instructions for these offenses fail to include a mental state. This court has recently addressed and rejected this same argument (see People v. Burton (1990), 201 Ill. App. 3d 116, 122, 558 N.E.2d 1369, 1374; People v. Smith (1991), 209 Ill. App. 3d 1043, 1060-61, 568 N.E.2d 482, 493; People v. Lemons (1991), 210 Ill. App. 3d 33, 42, 568 N.E.2d 1380, 1385-86), and we are not prepared to overrule those decisions. Regarding the Federal constitutional claims, we agree with the State that this argument is totally without merit. The cases defendant cites in support of this argument, Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, and Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965, both dealt with the use of evidentiary presumptions in jury instructions. That issue is not present in this case, and nothing in those cases remotely supports the argument defendant makes to this court.

Although not necessary to our resolution of this issue, we note nonetheless that defendant in the present case was convicted of aggravated criminal sexual abuse based upon an allegation that he committed an act of sexual conduct; the defendant in Burton, which is the case defendant primarily cites in support of his argument, was convicted of aggravated criminal sexual assault based upon a charge that he committed an act of sexual penetration. (Burton, 201 Ill. App. 3d at 118, 558 N.E.2d at 1371.) The definition of sexual conduct in section 12—12(e) of the Criminal Code of 1961 (Criminal Code) speaks of “any intentional or knowing touching or fondling *** for the purpose of sexual gratification or arousal.” (Ill. Rev. Stat. 1989, ch. 38, par. 12—12(e).) On the other hand, the definition of sexual penetration contained in section 12—12(f) of the Criminal Code contains none of the references to a mental state that the section 12—12(e) definition of sexual conduct contains. (Ill. Rev. Stat. 1989, ch. 38, par. 12—12(f).) Thus, on this basis alone, the discussion in Burton, regarding mental states when sexual penetration is alleged, does not apply to a similar discussion regarding mental states when sexual conduct is alleged.

IV. Trial Court Properly Refused To Admit The Letter From Defendant’s Wife Into Evidence Because It Was Not A Prior Consistent Statement

During the course of Anita’s testimony, defense counsel attempted to have her testify about a three-page note she wrote on August 9, 1989. In that note, Anita wrote that defendant was “telling the truth about [C.D.]” and, based upon Anita’s reading of the police reports pertaining to the case, “it does not sound like [defendant] did anything to [C.D.].” The note also suggested that someone else might have engaged in this sexual conduct with C.D.; specifically, C.D.’s biological father. The trial court sustained the State’s objection to this testimony. Defendant then made an offer of proof and argued that the letter was admissible as a prior consistent statement that corroborated Anita’s denials before the jury. Defendant argues that because Anita was impeached by prior inconsistent statements she gave to police officers, he was entitled to bring out this prior consistent statement. We disagree.

The evidence before the trial court on this issue established that the police questioned both C.D. and defendant in May 1989. On June 23, 1989, both Elston and Schroeder questioned Anita at the McLean County sheriff’s department. On June 26, 1989, Elston questioned her again and obtained her signature on the two-page document in which Anita said she saw defendant touch C.D. in a sexual manner by sliding his hand down in C.D.’s groin area. In Anita’s oral statements on June 23 to Elston and Schroeder, she expressed fear of what defendant would do to her if he knew she was talking to the police about these matters. On June 28, 1989, defendant was arrested on this charge, posted a cash bond, and obtained his release from jail. On July 20, 1989, defendant was indicted. Then, on August 9, 1989, Anita wrote the three-page statement in question.

When Anita was cross-examined during the hearing on defendant’s offer of proof regarding her August 9 note, she acknowledged that the police had already been investigating C.D.’s allegations and that juvenile court proceedings had already started regarding all of her children. In addition, Anita’s testimony at trial that she had never seen defendant engage in sexual conduct with C.D. was consistent with her August 9 note.

The trial court denied defendant’s offer to place Anita’s August 9 letter before the jury and explained its ruling as follows: “[The August 9 note] doesn’t constitute a prior consistent statement and really it seems to consist of not much more than opinions of the witness on various matters.” We agree.

Professor Michael H. Graham explains the use of prior consistent statements as follows:

“[T]o rebut an express or implied charge that the witness is motivated or has been influenced to testify falsely or that his testimony is a recent fabrication, evidence is admissible that he told the same story before the motive or influence came into existence or before the time of the alleged fabrication.” (Emphasis in original.) M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.14, at 425 (5th ed. 1990).

In People v. Wheeler (1989), 186 Ill. App. 3d 422, 542 N.E.2d 524, this court also discussed the standards governing the admissibility of prior consistent statements and wrote the following:

“Evidence of a prior statement of a witness consistent with that witness’ testimony at trial is admissible to bolster the testimony of that witness only if charges have been made that the testimony of the witness is of recent fabrication or that the witness has a motive to commit perjury, and the prior consistent statement was made before (1) the time of the fabrication; or (2) the existence of the motive to lie. [Citation.] Otherwise, the testimony is inadmissible.” (Emphasis in original.) Wheeler, 186 Ill. App. 3d at 426-27, 542 N.E.2d at 526.

The State concedes that the testimony of Elston and Schroeder in the present case implied that Anita’s trial testimony was either of a recent fabrication or the result of a motive to commit perjury. Defendant argues that this concession is sufficient to render her August 9 note admissible because “[i]f [Anita] made the statement before the recent fabrication (her trial testimony), then the statement is admissible.” Defendant’s argument is mistaken. As the State correctly points out, the proponent of the prior consistent statement must additionally show that the declarant made the statement before the time of the fabrication or the existence of the motive to lie arose. Defendant has failed to show either in the present case.

The sequence of significant events pertaining to this issue may be stated as follows: (1) after C.D. and defendant are interviewed by the police in May 1989, Anita gives her statements to the police on June 23 and 26, 1989, which incriminate defendant; (2) on June 26, defendant is first charged with these offenses and bonds out of jail; (3) juvenile court proceedings are undertaken regarding C.D. and Anita’s other three children, ultimately resulting in the placement of all of them in foster homes; (4) on August 9, 1989, Anita writes her exculpatory note; and (5) in September 1990, Anita’s testimony before the jury is exculpatory of defendant in a fashion consistent with her August 9 note. This sequence demonstrates that sometime prior to or on August 9, 1989, Anita changed her story for reasons about which one can only speculate. The record contains no evidence, however, that her motivation to testify inconsistently in September 1990 with her June statements to the police was any different than her motivation in August 1990 to write a note that was inconsistent with her June statements to the police. Thus, defendant has failed to demonstrate that Anita’s August 9 note is admissible as a prior consistent statement.

So as to clarify our decision, we need only point out that had Anita written her note on June 9, instead of August 9, then that June 9 statement would have met all of the criteria we have discussed to be admissible as a prior consistent statement after the State at trial impeached Anita’s testimony with her inconsistent statements of June 1989.

V. Defendant Was Not Improperly Prejudiced By Certain Evidence Admitted At Trial

Defendant last argues that the State introduced certain extremely prejudicial evidence at trial that inflamed the jury against him. In making this argument, defendant points to three specific types of evidence. We will address each in turn.

A. Evidence That Defendant Physically Abused His Wife

Defendant argues that the trial court improperly admitted evidence that he had abused Anita in the past, claiming this evidence was admitted only to show that defendant had the propensity to commit crime. We disagree. The State questioned Anita about defendant’s past physical abuse of her only after, when called by the State, she testified inconsistently with statements she had previously given investigating officers, in which she incriminated defendant. The State argues that these questions were utilized by the State to show the jury that Anita was afraid of him, perhaps explaining why she changed her testimony from what she had previously told the police. (See People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823-24.) We see no abuse of discretion in the trial court allowing the State to use this evidence of abuse for this limited purpose.

B. Evidence That Defendant’s Children Were in Foster Homes

Defendant next complains about Marshall’s testimony that defendant’s other children were in foster homes and separated from C.D. Defendant argues that the prejudicial effect of this evidence outweighed its probative value because the jury may have speculated that C.D.’s siblings had been removed from the parental home because defendant had also done something bad to them in the past. We are unpersuaded.

The evidence was clearly probative because it helped to explain why C.D. was unhappy and homesick just prior to the 1989 holidays and why Marshall was driving C.D. and her older brother to visit with their mother. This latter explanation was particularly important because it placed C.D.’s recantation of her allegations against defendant in an appropriate context. In the heart-wrenching circumstances in which that recantation occurred, the motive behind C.D.’s recantation appears self-evident as she says to her mother on her supervised visit, “Mom, can I go home, now that I said I lied?”

Furthermore, we do not share defendant’s view that the jury might speculate that he must have done something bad to C.D.’s siblings in order to account for why they would have been removed from his home. Instead, we think it much more likely that the jury will understand that when a stepfather has been charged with sexually abusing his then five-year-old stepdaughter and the child’s mother continues to live with the stepfather and appears to be on his side, a court is likely to view skeptically the fitness of that home for any child, not just the child who made the allegations.

C. Evidence That Defendant Was Sexually Aroused by the Victim

Defendant last argues that the trial court improperly permitted some State witnesses to testify that defendant told them of two occasions where he was in a state of sexual arousal in C.D.’s presence. In support of this argument, defendant states the following:

“These statements have absolutely no connection to the activities that the defendant was accused of, and again could only be used to inflame the jury against [him].
*** The evidence that the defendant may have been sexually aroused in the presence of his daughter is not relevant to the issue of whether, during the time period in question, the defendant engaged in an act of sexual conduct with [C.D.]
Even if this evidence is assumed to be true, it does not make the occurrence of sexual contact between [defendant] and [C.D.] any more likely. There is no indication that these alleged incidents were related to the present charges.” (Emphasis added.)

We emphatically disagree with this argument because it seems to suggest the strange notion that there is nothing at all unusual or revealing about a 32-year-old man who becomes sexually aroused when he sees his five-year-old stepdaughter naked in the bathroom. Instead, we view the evidence in question as strongly probative and suggestive of the state of mind that would be inclined to commit the acts that C.D. complained of. In so holding, we find instructive the recent decision of the Missouri Court of Appeals in State v. Lachterman (Mo. App. 1991), 812 S.W.2d 759, in which the court was reviewing the admissibility of evidence that defendant, who was charged with sodomizing 9- and 10-year-old boys, had committed sodomy with other children at different times and places, and had possession of magazines, photographs, and newspaper articles pertaining to sexual acts with children. In holding this evidence to be admissible, the court wrote the following:

“[‘ “]Certain crimes today are recognized as stemming from a specific emotional propensity for sexual aberration. The fact that in the near past one has given way to unnatural proclivities has a direct bearing upon the ultimate issue whether in the case being tried he is guilty of a particular unnatural act of passion. The importance of establishing this fact far outweighs the prejudicial possibility that the jury might convict for general rather than specific criminality. Even granting the general rule of inadmissibility of evidence of independent crimes to prove the offense charged, many courts recognize a limited exception in the area of sex crimes to prove the nature of the accused’s specific emotional propensity.[” ’ State v. Taylor (Mo. Ct. App. 1987), 735 S.W.2d 412, 415, quoting State v. McDaniel (1956), 80 Ariz. 381, 388, 298 P.2d 798, 802-03.]
* * *
*** The crucial question is one of relevance — does proof that the defendant committed another crime logically tend to prove he committed the charged offense? Although it cannot be denied that the admission of such evidence may be prejudicial because it may result in a conviction founded upon crimes other than the charged offense, ‘relevance, not prejudice, is the touchstone of due process and . . . the question of whether the prejudicial effect outweighs its probative value rests within the sound discretion of the trial court.’ (State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982).)
* * *

We view [defendant’s deviate sexual] conduct as so unnatural and depraved that regardless of the relationship or similarity of status between the victim and other children subjected to like sexual abuse by the defendant, evidence that the defendant engaged in similar acts of sexual abuse of children of the same sex as the victim near in time to the acts charged tends to prove the defendant’s guilt of the crime on trial. Evidence of repeated acts of sexual abuse of children demonstrates, per se, a propensity for sexual abberation and a depraved sexual instinct and should be recognized as an additional, distinct exception to the rule against the admission of evidence of uncharged crimes.

We are not unmindful of the prejudicial impact upon a jury of evidence that a defendant has committed other crimes. For that reason we emphasize that what we say here should be narrowly construed. It is not our intention to open the door for the admission of evidence of any type of sexually aberrant behavior on the part of defendant. ***

Consequently, we limit our finding of relevance and probative value to other acts of sexual abuse of children of the same sex as the victim occurring near in time to the acts charged. It is the recurrent and continuing penchant for engaging in sex with children that demonstrates such deviance and depravity as to give significance to the uncharged conduct. The trial court did not err in admitting evidence of defendant’s sexual abuse of boys other than the victim or of his possession of magazines and photographs depicting children engaged in sexual conduct.” Lachterman, 812 S.W.2d at 766-69.

At one point in the Lachterman decision, the court refers to the new evidentiary rule it is proposing as “ ‘the depraved sexual instincts doctrine.’ ” (Lachterman, 812 S.W.2d at 766, quoting Taylor, 735 S.W.2d at 417.) We believe that title nicely summarizes the rule of relevancy the doctrine embodies, and we find the doctrine applicable and useful to our rejection of defendant’s argument regarding the claimed irrelevancy of his being sexually aroused by C.D. To paraphrase Lachterman, defendant’s sexual arousal in the presence of C.D. demonstrates such deviance, perversity, and depravity so as to make it substantially more likely than not that he would have a penchant for engaging in the sexual conduct with her that she complained of.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

LUND, P.J., concurs.

JUSTICE GREEN,

specially concurring:

I concur in the decision to affirm and agree the circuit court ruled properly in admitting the hearsay statements pursuant to section 115 — 10 of the Code.

I disagree with the decision of the majority to pass upon the propriety of the appellate decision in Zwart because that case is now before the Illinois Supreme Court. The decision of the latter court will be definitive. However, an affirmance in Zwart would not necessarily require reversal here. As the majority has concisely shown, evidence was introduced there that (1) one of the children denied to a therapist that she had been molested and failed to mention the molestation to a treating physician, and (2) the allegations were made after a quarrel between the children’s mother and her lover, the defendant. The evidence of reliability here is substantially stronger. We need not pass upon the propriety of Zwart to affirm.

I agree with the majority in regard to the standard of review of factual determinations by the trial court in rulings upon section 115—10 hearings to determine admissibility. We must also remember that questions of law are also involved in that decision. Here, as would usually be the case at a section 115—10 hearing, the court did not hear the declarant children. Only in determining the existence of the underlying circumstances is the court making a purely factual determination. After viewing underlying facts most favorably to the circuit court’s determination, a reviewing court should give somewhat less deference to the decision as to whether those circumstances “provide sufficient safeguards of reliability.” Here, the circuit court made a clear explanation of its decision which was fully supported by the evidence and the law.

I agree that the evidence of defendant becoming sexually aroused when viewing the victim naked was admissible to show intent or motive. The evidence is analogous to evidence of prior acts of sexual assault or abuse by the accused against the same victim. (People v. Whitham (1950), 406 Ill. 593, 94 N.E.2d 506.) To the extent the majority opinion implies that evidence would be admissible if it shows arousal of a man accused of a similar offense while viewing naked young girls other than the victim, I do not join in the opinion. Many problems are invoked with such a rule. The issue has not been briefed and we should not create dictum in regard to it.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    TERRY REGAN et al., Plaintiffs-Appellants and Cross-Appellees, v. GARFIELD RIDGE TRUST AND SAVINGS BANK, as Trustee, et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 2—90—1238
    Opinion filed October 25, 1991.

      Reese J. Peck, of Rathje, Woodward, Dyer & Burt, of Wheaton, and James Kottaras, of Schlyer & Associates, P.C., of Griffith, Indiana (Donald E. Schlyer, of counsel), for appellants.
    Christopher P. Koback and Joseph E. Potchen, both of Nisen & Elliott, of Chicago (Michael H. Moirano, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Terry Regan and Dennis Egan, filed a three-count complaint against defendants, Garfield Ridge Trust & Savings Bank, as trustee under trust number 85—5—2 (land trust), Carl Ivanelli, Sr. (Carl Sr.), Carl Ivanelli, Jr. (Carl Jr.), James Ivanelli (James), and Jerry Ivanelli (Jerry). In count I, they sought specific performance of a contract for the purchase of certain real estate from the land trust. In count II, they alleged that Carl Sr. tortiously interfered with the contract. In count III, they alleged that the other three defendants, who were land trust beneficiaries when the contract was executed, conspired with Carl Sr. to tortiously interfere with the contract. The trial court granted plaintiffs specific performance while the jury entered a verdict against only Carl Sr. on the other two counts, awarding plaintiffs $400,000 on count II and $200,000 on count III. The trial court entered judgment nonwithstanding the verdict in favor of Carl Sr. on count III, and plaintiffs appeal. They contend that the entry of judgment nonwithstanding the verdict was error and that they are entitled to a new trial on count III because the jury finding that only one defendant was involved in the alleged conspiracy was inconsistent.

Defendants also appeal and raise the following contentions: (1) that plaintiffs were not entitled to specific performance because they were in breach of certain material contract provisions; (2) that Carl Sr. cannot be held liable for tortiously interfering with the contract because he was acting as an agent for the land trust beneficiaries; (3) that Carl Sr. was privileged to interfere with the contract because of his agent’s status; (4) that the trial court erred by allowing testimony concerning a prior conviction of Jerry; (5) that two attorneys who represented plaintiffs during the course of the transaction and who testified at trial should not have been allowed to decline to answer certain questions on the basis of the attorney-client privilege; (6) that the trial court erred by instructing the jury not to make any negative inferences from the above assertion of the privilege; and (7) that plaintiffs’ counsel improperly failed to complete his impeachment of a defense -witness. We affirm.

On March 6, 1986, plaintiffs and the lánd trust executed a contract for the purchase of a 34-acre parcel of land in Lemont to which the trust held title. The land trust beneficiaries, which included Carl Jr., James, Jerry, and their two sisters, directed the trust to enter into the contract, which provided for a purchase price of $400,000.

The contract further provided as follows. Within six months of its execution, plaintiffs were to pay $100,000 into an escrow account. If plaintiffs had complied with certain requirements set forth in paragraph two, they were to receive title to four lots on the parcel. These included construction of a portion of a roadway which would provide access to the eastern third of the parcel, construction of entrance way markers on the road leading to the parcel, removal of debris from the property, and submission of a plat of subdivision and its approval by local authorities. Each of the above was to be done within six months of the agreement’s execution or by September 6,1986.

By March 6, 1987, plaintiffs were to deposit another $150,000 into escrow. At the same time, they were to receive title to an additional four lots. The remainder of the purchase price was to be paid by September 6, 1987, at which time plaintiffs were to receive title to the remainder of the parcel. The trust beneficiaries had an option to retain up to three lots at a price of $22,000 per lot. Additionally, the agreement stated that at least five days prior to closing, the seller was to provide title commitment insurance in an amount equal to or greater than the purchase price.

The following evidence was brought out at trial. Plaintiffs formed a corporation called Bluff Point Development Company for the purpose of developing the subject property. Dennis Egan was to provide the necessary funds to purchase the land, and Terry Regan was to supervise its development. The Ivanellis had been unable to develop the property because of problems with procuring sewer and water service.

According to Terry Regan’s testimony, the Ivanellis provided him with proposed plats of subdivision during the negotiations for the purchase of the property. These proposed plats suggested that the area could be serviced by means of a well and a septic field. Percolation tests performed early in 1987, however, showed that the soil was not suitable for a septic field.

Additionally, after plaintiffs submitted a proposed plat to county authorities in April, they discovered that the road could not be built in the area suggested by the Ivanelli plats because the grade was too steep to meet county requirements. They therefore placed the road in a different location on subsequent revised plats submitted to the county. Even in that location, considerable excavation was required to come close to the county requirement of a maximum road grade of seven degrees. Plaintiffs obtained a variance from the county so the road could have a slightly higher grade. Regan testified that road construction could not begin until a permit was obtained in September 1986. Because they had to excavate up to 14 feet of dirt in some areas, the road took four months to build when it ordinarily might have taken 10 days. According to Regan, the road was substantially complete in January 1987.

Plaintiffs solved the sewer and water problem by persuading a nearby utility company, Citizens Utility, to provide such service. Citizens was a captive utility company which had provided service solely to Santa Fe Industrial, which owned land near the subject property. Citizens agreed in June 1987 to provide sewer and water service to the subject property, according to Regan, with Santa Fe providing a necessary easement to plaintiffs. Later that month, the Du Page County Plat Review Committee approved plaintiffs’ fourth revised plat. Regan testified that the sewer and water problem was primarily responsible for delaying plat approval.

Under the contract, the initial closing was to take place on or before September 6, 1986. Defendants presented testimony that the delay occurred because plaintiffs had requested extra time to come up with the money. Plaintiffs testified, however, that the delay occurred because a $250,000 lien showed up on a title policy. That lien had been paid off by Carl Sr. five years earlier. The parties also agreed to modify the contract as follows. Plaintiffs made a $25,000 payment to the trust beneficiaries on September 9, 1986, to show good faith. At the time of closing, plaintiffs paid the beneficiaries $75,000 and received title to three lots. Plaintiffs also paid $25,000 into an escrow account to be used to pay an excavating company which worked on the road. The beneficiaries placed one additional lot deed in escrow to ensure completion of the road.

Plaintiffs did not make the $150,000 payment that was due on or before March 6, 1987, nor did the beneficiaries send plaintiffs a title commitment for the lots to be conveyed at that time. Egan and Regan both testified that Carl Sr. told them not to worry about the $150,000 payment. Regan stated that this was because of the troubles plaintiffs had encountered with respect to the property, including the sewer and water problem. According to Regan, the beneficiaries did not demand payment of this sum. Egan testified that half the beneficiaries wanted payment, and half were not worried about it. William Ryne, one of plaintiffs’ attorneys with respect to the transaction, testified that the beneficiaries’ attorney, James O’Neal, did inquire about the $150,000 payment several times during telephone conversations in the spring and summer of 1987. Carl Sr., Carl Jr., and James denied telling plaintiffs not to worry about the payment. James testified that he went to the property and served a written default notice upon Regan in June 1987. Regan denied this, and no copy of the notice was admitted into evidence.

Beginning in July 1987, Carl Sr. proposed a series of new agreements with Regan and Egan. According to defense testimony, these plans were designed to have Carl Sr. arrange financing for plaintiffs so the transaction would close in September. Regan’s testimony, however, indicated that the purpose of these plans was to enable the parties to purchase an adjoining 181-acre tract and other adjoining land for the purpose of developing the land as a golf course. In several of these proposals, Carl Sr. and a friend were each to receive a percentage of Bluff Point Development Company. Regan and Egan agreed to the first four proposals submitted by Carl Sr., but Carl Sr. returned to them each time and stated the beneficiaries would not agree. Finally, early in September 1987, Carl Sr. suggested a plan pursuant to which he and a friend would each receive 30% of Bluff Point in return for providing financing. Plaintiffs turned this deal down.

On August 11, 1987, James O’Neal, the beneficiaries’ attorney, sent a letter to one of plaintiffs’ lawyers, David McDermott, complaining about certain alleged defaults, including the $150,000 payment. McDermott sent a letter on August 19 to O’Neal stating that the defaults would be cured by prompt payment of all outstanding sums. The attorneys subsequently set a closing date of September 6, 1987, which was eventually changed to September 21 by agreement of the parties.

O’Neal sent a default notice to plaintiffs’ attorneys on September 10, 1987. The specified defaults were the $150,000 payment, failure to have the subdivision plat approved, failure to construct entranceway markers for the subdivision near the road, and failure to clear debris from the land. The contract required a written default notice, a seven-day period to cure defaults, and a written notice of termination.

On September 18, 1987, four of the trust beneficiaries assigned their interest in the trust to Carl Sr. Carl Sr. had a power of attorney from the fifth beneficiary, Jerry, who was in prison in Florida. Carl Sr. went to O’Neal’s office, fired him as the trust’s attorney, and took the file concerning the transaction. He instructed the trust to terminate the contract and sent a notice of termination to plaintiffs’ attorneys.

Regan testified that early in the morning on September 18 Carl Sr. called him and said that he was taking over the contract and that there would be no closing on the 21st. Egan testified that Regan called him on the morning of the 18th to tell him what Carl Sr. had said. Egan further stated that one of his companies had over two barge loads of soy oil in a dock near Lemont. Egan was planning to sell this soy oil to a Louisiana company called Pacific Molasses in order to procure the necessary funds to buy the property, approximately $235,000.

Harold Meier, a Pacific Molasses official, testified that the company would have bought the soy oil from Egan’s company had it been offered on the 18th. The price would have been about $250,000. Pacific Molasses bought all of the soy oil produced by Egan’s company and was always willing to buy the oil if it was available. Meier further testified that Pacific Molasses wire-transferred the funds for oil it purchased within one or two days of being notified by Egan that the oil was available. Pacific Molasses ended up buying the oil in question several weeks after September 18. Egan stated that he did not sell the oil on the 18th because Regan had advised him the closing would not occur on the 21st, and Egan hoped the market price for soy oil would go up.

The September 21 closing had been scheduled to take place at Intercounty Title Company’s Orland Park office. Carl Sr. testified that he never told plaintiffs this closing was cancelled; instead, he moved it to the office of his new attorney, Thomas Fawell. Regan and one of his lawyers showed up at Intercounty Title on September 21 to make sure that closing would not go ahead. No one else showed up.

Carl Sr. denied cancelling the September 21 closing, and he testified that the closing was rescheduled for Fawell’s office later that day. Plaintiffs did meet with Carl Sr. at Fawell’s office late in the afternoon on the 21st with attorneys for both sides present. Plaintiffs testified, however, that nothing was mentioned about the meeting being a closing. Regan stated that Carl Sr. told them at the meeting that the deal was off and plaintiffs were not going to get the land. Both plaintiffs testified that Carl Sr. then offered a final deal in which he and a partner would receive 80% of Bluff Point Development Company, leaving 20% for plaintiffs. Plaintiffs rejected this proposal. The next day plaintiffs sent the land trust a default notice for failing to go through with the closing.

Thomas Fawell testified that the September 21 meeting was an attempted closing. According to Fawell, the associate who was conducting the closing asked him to come into the room because the buyers did not have the necessary funds. When Fawell went in, plaintiffs asked to delay the closing. According to Fawell, plaintiffs claimed they could come up with the necessary funds but refused to identify specifically the source, stating only that it was an individual. Fawell then advised Carl Sr. not to schedule a new closing because it did not seem plaintiffs would ever be able to come up with the money.

Between December 1986 and May 1987, plaintiffs took deposits on lots from eight prospective buyers. These had to be returned when the contract fell through. After September 21, 1987, Carl Sr. made further efforts to develop the subject property. He corresponded with Santa Fe Industrial officials using Bluff Point Development stationary and held himself out as the company’s owner. He flew to Texas in an effort to negotiate with Santa Fe officials for the purchase of the 181-acre tract adjoining the subject property, but they refused to speak with him. Carl Sr. also attempted to obtain sewer and water tie-in approval from Santa Fe and Citizens Utility but was unsuccessful. The Du Page County Forest Preserve District subsequently filed an eminent domain action to condemn the subject land. On May 23, 1988, Carl Sr. assigned his interest in the land trust back to his children.

The trial court awarded plaintiffs specific performance of the March 6, 1986, contract, and the jury awarded plaintiffs $400,000 on count II and $200,000 on count III against Carl Sr. only. Both the trial judge and jury found that plaintiffs did not breach the contract. The trial judge also found that any breaches were waived by defendants. Both parties now appeal. We will first consider the arguments raised by defendants beginning with the contention that the trial court erred by granting specific performance.

A trial court’s decision to award specific performance will not be disturbed unless it is against the manifest weight of the evidence. (Calvary Temple Assembly of God v. Lossman (1990), 200 Ill. App. 3d 102, 105.) Defendants contend that the trial court’s grant of specific performance was against the manifest weight of the evidence because plaintiffs were in default of their contractual obligations, and they failed to show they were ready, willing, and able to perform at the time of defendants’ alleged breach.

The general rule is that a party is only entitled to specific performance of a contract if he or she has complied with all of its terms or was ready, willing and able to do so but was prevented from complying by the other party. (Beesley Realty & Mortgage Co. v. Busalachi (1963), 28 Ill. 2d 162, 165.) A court may, however, relieve a defaulting purchaser from a forfeiture and order specific performance if it would be unreasonable to permit a forfeiture to occur. (71 Am. Jur. 2d Specific Performance §62 (1973).) Therefore, if the opposite party or parties engage in conduct that amounts to a waiver of the default, specific performance may still be ordered. (See Kingsley v. Roeder (1954), 2 Ill. 2d 131, 138-39; Schmalzer v. Jamnik (1950), 407 Ill. 236, 244; Tantillo v. Janus (1980), 87 Ill. App. 3d 231, 237-38.) Additionally, a minor nonmaterial breach by the plaintiff will not preclude specific performance. Advance Components, Inc. v. Goodstein (Tex. Civ. App. 1980), 608 S.W.2d 737, 739; Clayten v. Proutt (1961), 227 Md. 198, 203, 175 A.2d 757, 760; Landau v. St. Louis Public Service Co. (1954), 364 Mo. 1134, 1140; 273 S.W.2d 255, 259; Restatement (Second) of Contracts §369 (1981).

Here, there was ample evidence from which the trial court could reasonably have concluded that defendants waived plaintiffs’ timely compliance with the March 6, 1987, deadline for making the $150,000 payment, having the subdivision plat approved, building the entrance markers near the roadway, and clearing debris from the land. Plaintiffs presented testimony that they received no default notices for the above reasons until September 10, 1987. While James O’Neal mentioned the above defaults in his August 11, 1987, letter to Dave McDermott, he also stated that the beneficiaries were still willing to close the transaction if they were remedied. Additionally, plaintiffs testified that after the March 6, 1987, deadline, Carl Sr. told them not to worry about the $150,000 payment.

There was also evidence from which the trial court could have concluded that plaintiffs were in compliance with some of the above contractual requirements or were ready, willing, and able to comply with them. Regan testified that Du Page County authorities approved the plat of subdivision in June 1987. While defendants maintain that the evidence shows the plat was not recorded, the contract required approval of the plat by the necessary local authorities not the recording of it.

Egan also testified that he would have obtained the necessary funds to complete the transaction by selling soy oil to Pacific Molasses on September 18 if the contract had not been repudiated that day. Defendants argue that this testimony is dubious because their notice of contractual termination could not have reached plaintiffs by September 18 when it was mailed that day and the envelope bore a September 20 postmark. Regan testified, however, that Carl Sr. called him on the morning of the 18th and told him the September 21 closing was off. Egan testified that Regan called him the same morning to convey Carl Sr.’s message. The trial court could have concluded that Egan had sufficient assets to complete the transaction and would have converted those assets to cash if defendants had not repudiated the agreement. Tender prior to filing a specific performance complaint is not necessary if defendants have repudiated the contract. (Bonde v. Weber (1955), 6 Ill. 2d 365, 381.) Additionally, it was not necessary for plaintiffs to convert the asset in question, the soy oil, to cash in order to establish their right to specific performance. See Tantillo, 87 Ill. App. 3d at 238-39.

The trial court could have concluded reasonably that plaintiffs did meet their contractual obligation of clearing debris from the land as there was conflicting evidence on this issue. Although defense testimony that plaintiffs failed to build entranceway markers for the subdivision along the road leading to it was unrebutted, we consider this a minor breach which would not preclude specific performance. The question of whether a breach of contract is material should be decided by examining the inherent justice of the matter. (Hickox v. Bell (1990), 195 Ill. App. 3d 976, 992.) Although the Ivanellis wished to ensure that certain improvements would be made because of their option to retain three lots in the subdivision, the above breach would not have significantly affected the value of the property therein.

■ If specific performance is awarded in spite of a minor breach, it should be conditioned upon either compliance with the breached provision or payment of monetary compensation. (Clayten v. Proutt (1961), 227 Md. 198, 203, 175 A.2d 757, 760.) Although the trial court failed to do this, we see no need to remand the cause or modify the trial court’s judgment because the Ivanellis have conveyed their three lots to plaintiffs and the property is the subject of an eminent domain action. It would therefore make little sense to direct plaintiffs to construct the markers.

We therefore determine that specific performance was an appropriate remedy and affirm the circuit court’s judgment as to count I. Our holding makes it necessary to rule upon plaintiffs’ motion to bar defendants from challenging their right to specific performance because of a partial settlement agreement allegedly entered into after trial. Plaintiffs alleged in that motion that defendants agreed to refrain from challenging the grant of specific performance in this partial settlement. Our holding renders the motion moot.

We next consider the contention that Carl Sr. cannot be held liable for tortious interference with contract. The elements of this tort are as follows: (1) the existence of a valid, enforceable contract between plaintiff and another; (2) defendant’s awareness of this contractual relationship; (3) defendant’s intentional and unjustified inducement of a contractual breach; (4) a subsequent breach by the other as a result of defendant’s wrongful acts; and (5) damages (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 154-55). A party cannot be held liable for inducing the breach of his or her own contract. Blivas & Page, Inc. v. Klein (1972), 5 Ill. App. 3d 280, 286; see also Salaymeh v. Interqual, Inc. (1987), 155 Ill. App. 3d 1040, 1044.

In Blivas & Page, plaintiff presented evidence that defendant Klein promised to hire plaintiff as the architectural firm for a building project if Klein was approved as the project sponsor. The jury rendered a verdict against defendant Kay for tortious interference with the contract. Kay argued that since he became Klein’s partner on the project after the contract was entered into, he became a party to the contract and could not be held liable for inducing its breach. On appeal, the court concluded that this argument was without merit because Kay was not an original party to the contract. Blivas & Page, 5 Ill. App. 3d at 286.

Here, as in Blivas & Page, Carl Sr., the party held liable for inducing the contractual breach, was not a party to the original contract. Under that holding, even though Carl Sr. became a party to the contract later on, he can still be held liable for tortious interference with it. Defendants argue that this rule should be reconsidered because contractual assignments are common in commercial transactions, and an assignee should not be subjected to potential tort liability for breaching a contract. We agree that Blivas & Page should not be applied to subject one who receives a contractual assignment to tort liability under ordinary circumstances for a subsequent contractual breach. However, we believe tort liability is appropriate if the third party procures the assignment with the express purpose of causing the breach, as one of the purposes of recognizing a cause of action for interference with contractual relations is to protect one’s contractual relationship from tampering by others. (Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 551.) Since Carl Sr. repudiated the contract almost immediately after taking the assignments from the beneficiaries, the jury could find from the evidence that he did so with the intent of causing a breach. Therefore, tort liability is appropriate under the facts of this case.

Carl Sr. also argues that he cannot be held liable for tortious interference because he was acting as the agent of the beneficiaries at all relevant times. It has been held that an employee cannot be held liable for tortious interference with a contract involving his or her employer as long as the employee is acting in the employer’s interest. (Salaymeh v. Interqual, Inc. (1987), 155 Ill. App. 3d 1040, 1044.) Even if this principle applies with equal force to agency relationships, as Carl Sr. argues, there is substantial evidence that Carl Sr. was acting in his own interests. Regan and Egan both testified that at the September 21 meeting Carl Sr. offered a deal in which he and another individual would receive 80% of Bluff Point Development Company. During the summer of 1987, Carl Sr. offered several other deals which would have given him lesser percentages of the company in return for providing financing.

Carl Sr. also argues that, by virtue of his agency status, he was privileged to interfere with the contract. Courts will recognize a privilege in intentional interference with contract cases if defendant acted to protect an interest of equal or greater value than plaintiff’s contractual rights. (HPI, 131 Ill. 2d at 157.) A defendant protected by a privilege is not justified, however, in engaging in conduct unrelated to or antagonistic to the interest giving rise to the privilege. (131 Ill. 2d at 158.) The aforementioned evidence that Carl Sr. was acting in his own interest demonstrates that his actions were not within the scope of any privilege for agents. We therefore reject this contention and affirm the jury verdict against Carl Sr. as to count II.

Next, defendants contend that the trial court erred by allowing Jerry’s criminal conviction to be brought out while Carl Sr. was being cross-examined. This occurred while plaintiffs’ attorney was inquiring about the circumstance under which Carl Sr. received a power of attorney from Jerry. The trial court reversed a prior ruling barring any mention of Jerry’s conviction, and Carl Sr. testified that he received the power of attorney because of Jerry’s imprisonment on drug-related charges. It was subsequently brought out, however, that the power of attorney bore a May 1986 date which was a month prior to Jerry’s arrest on those charges.

Defendants cite People v. Montgomery (1971), 47 Ill. 2d 510, in which our supreme court set the standards for the use of a witness’ prior convictions to impeach the credibility of that witness. The Montgomery criteria are applicable to civil cases. (Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 94.) Under Montgomery, the conviction is only admissible if it was punishable by over a year in prison or involved dishonesty. (Montgomery, 47 Ill. 2d at 516.) Additionally, the conviction must have occurred within the past 10 years. (47 Ill. 2d at 516.) Even under these circumstances, the conviction is only admissible for impeachment purposes if its probative value outweighs the prejudicial effect. 47 Ill. 2d at 516.

Montgomery is not applicable here because evidence of the conviction was not admitted to impeach Jerry, who did not testify. Nevertheless, the concerns expressed by the court about the potential prejudice from this type of evidence (47 Ill. 2d at 514) are applicable. The trial court, however, has broad discretion in controlling cross-examination, and reversal will only result if this discretion is clearly abused and the abuse materially affected the trial’s outcome. (Elliott v. Koch (1990), 200 Ill. App. 3d 1, 18.) On direct examination of Carl Sr., defendants brought out the existence of the power of attorney; therefore, the trial court could have reasonably determined that plaintiffs were entitled to inquire about the circumstances surrounding its execution. (See Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 411 (trial court properly allowed cross-examination relevant to matter raised on direct examination).) Furthermore, defendants’ claim of prejudice is dubious since the jury found in Jerry’s favor on count III. We therefore reject this contention.

Defendants also argue that it was improper for the trial court to allow William Ryne, an attorney for plaintiffs who handled the instant transaction, to refuse to disclose on cross-examination if Egan had told him whether there were sufficient funds to close the transaction. According to defendants, this error was exacerbated when the trial court instructed the jury that this assertion of the privilege should not result in any adverse inference against plaintiffs.

The attorney-client privilege applies to communications made in confidence by a client seeking legal advice of any kind to a professional legal adviser acting in that capacity. (Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 103.) Such communications are permanently protected from disclosure unless the privilege is waived. Cesena, 201 Ill. App. 3d at 103.

Defendants argue that the privilege was waived because plaintiffs called attorneys McDermott and Ryne to testify about their dealings with defendants and their lawyers. Selective disclosure of confidential communications by the client will generally result in a waiver of the privilege. (In re Sealed Case (D.C. Cir. 1982), 676 F.2d 793, 818.) However, if a client calls a former attorney to testify and that attorney reveals no privileged communications during direct examination, there is no waiver of the privilege. (People v. Squire (1983), 123 Mich. App. 700, 704-05, 333 N.W.2d 333, 335; Aysseh v. Lawn (1982), 186 N.J. Super. 218, 225, 452 A.2d 213, 217-18.) Ryne and McDermott were not questioned about any confidential communications on direct examination, nor did they reveal the contents of any such communications. Thus, there was no waiver of the privilege, and it was properly invoked by Ryne during cross-examination.

We also reject defendants’ contention that the trial court erred by instructing the jury not to draw any inference against plaintiffs due to the invocation of the attorney-client privilege. Allowing such an inference to be drawn could inhibit communications between attorney and client especially with respect to contractual transactions where there is often a possibility that the attorney will be called upon to testify if there is a contractual breach and litigation ensues. We therefore conclude that the trial court’s instruction was appropriate.

Defendants also contend that a new trial is warranted because of improper attempts to impeach Thomas Fawell. More specifically, defendants complain that, while cross-examining Fawell, plaintiffs’ attorney twice made insinuations which were not followed up with proof after Fawell denied them. This issue was not specifically raised in defendants’ post-trial motion, however, and it is therefore waived. 134 Ill. 2d R. 366(b)(2)(iii); Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 358.

We now turn to the arguments raised by plaintiffs. Plaintiffs basically contend that either the trial court’s entry of judgment notwithstanding the verdict with respect to count III should be reversed or a new trial should be granted because the jury verdict that only Carl Sr. participated in the conspiracy was legally inconsistent.

A judgment notwithstanding the verdict should be granted only in those cases where the evidence so overwhelmingly favors the movant that no contrary verdict based upon that evidence could stand. (Delnick v. Outboard Marine Corp. (1990), 197 Ill. App. 3d 770, 784-85.) Count III alleged that defendants conspired to interfere with the March 6, 1986, contract. Although a party cannot be sued in tort for inducing the breach of his or her own contract, the party can be sued for conspiring with a third party who has induced the breach. Blivas & Page, 5 Ill. App. 3d at 286.

A conspiracy is an agreement by two or more people to perform an unlawful act or a lawful act by unlawful means. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 829.) If the plaintiff relies upon indirect or circumstantial evidence to establish an individual’s participation in a conspiracy, the evidence must be clear and convincing. (Bimba Manufacturing Co. v. Starz Cylinder Co. (1969), 119 Ill. App. 2d 251, 267.) If the evidence is circum stantial and the facts relied upon are as consistent with innocent conduct as guilty conduct, the court must find that the conspiracy was not proved. ABC, 90 Ill. App. 3d at 830; Bimba, 119 Ill. App. 2d at 270.

Here, there was no direct evidence that defendants entered into an agreement to breach the contract; the evidence on count III was entirely circumstantial. Plaintiffs rely on two facts to support their conspiracy claim. The first is that some evidence existed that the other defendants agreed with Carl Sr. to fire James O’Neal. The second is that the beneficiaries gratuitously transferred their beneficial interest in the land trust to Carl Sr.

The above facts are as consistent with nonconspiratorial conduct as they are with conspiratorial conduct. The unrebutted evidence presented by defendants, including O’Neal’s testimony, was that O’Neal was fired because he had not been aggressive enough in bringing about prompt compliance with certain contractual terms and a closing of the deal. Furthermore, the gratuitous transfer of the beneficial interest in the land trust can be seen as a matter of convenience, since Carl Sr. had conducted negotiations on the beneficiaries’ behalf relating to the transaction after the contract was entered into. While there was evidence that Carl Sr. sought to profit from the refusal to go ahead with the deal by demanding 80% of Bluff Point Development Company for him and a partner, there is no evidence that the Ivanelli children would have profited had Carl Sr. been successful. Since plaintiffs failed to present clear and convincing evidence that there was a conspiracy between or among the defendants to breach the contract, the trial court’s entry of judgment notwithstanding the verdict on count III was proper.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re E.D. Mc., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. E.D. Mc., Respondent-Appellant).
    Second District
    No. 2—90—0533
    Opinion filed October 30, 1991.
    G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, E.D. Me., appeals from the orders of the circuit court of Ogle County adjudicating him a delinquent minor, making him a ward of the court and committing him to the Department of Children and Family Services. Respondent contends that the State’s failure to properly notify his father of the juvenile proceedings deprived the trial court of jurisdiction and that the orders of the court are void. For the reasons that follow, we agree that jurisdiction was lacking and, therefore, reverse the orders of the trial court.

On December 12, 1989, the State filed a supplemental petition for an adjudication of delinquency and wardship pursuant to section 5—3 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 805—3). The petition alleged that, on or about November 1, 1989, respondent committed the offense of unlawful trespass to a vehicle (Ill. Rev. Stat. 1989, ch. 95½, par. 4—102(a)(2)) and stated that an arraignment would be held on December 28, 1989. Named in the petition were the minor’s natural parents, Eugene Marth and Carrie Wade. Also indicated were the known addresses of both parents. Summons was served on respondent and Carrie Wade. A summons sent to Eugene Marth was returned unserved. Respondent and Carrie Wade were present in court at the December 28, 1989, arraignment. Eugene Marth was not present. The matter was continued, and a pretrial conference was set for January 18, 1990.

Notice to Eugene Marth of the January 18, 1990, hearing was thereafter published in the Republican-Reporter, a weekly public newspaper. The notice was also mailed to Marth at his last known address. Marth was not present at the January 18 hearing, and the matter was continued to February 8, 1990. Notice of the February 8 hearing was also published in the Republican-Reporter, and a copy was mailed to Marth at his last known address. Marth was not present at the February 8 hearing, and the cause was set for an adjudicatory hearing on March 12, 1990. No notice of this hearing, or any subsequent hearing, was given to Eugene Marth.

On March 12, 1990, respondent, his mother, and his appointed counsel were present at the adjudicatory hearing. Eugene Marth was not present. After hearing testimony from various witnesses, the trial court found respondent guilty of trespass to a vehicle (Ill. Rev. Stat. 1989, ch. 95½, par. 4—102(a)(2)) and entered an order finding that he was a delinquent minor. A wardship and dispositional hearing was set for April 24, 1990. Eugene Marth was not served with notice of this hearing. Respondent and his mother were present at the April 24, 1990, hearing. Eugene Marth was not present. At that hearing, respondent was made a ward of the court and committed to the Department of Children and Family Services.

On appeal, respondent argues that the State’s failure to properly notify his father of the juvenile proceedings deprived the trial court of jurisdiction and that the orders of the court are therefore void. Specifically, respondent argues that, due to the various continuances, the State should have attempted additional notice. The State argues that the issue of failure to give notice of the adjudicatory hearing is waived because it was not raised in the trial court.

The principles governing notice to a minor’s parents of juvenile proceedings are well established and have been stated by our supreme court as follows:

“In a juvenile proceeding adequate notice to the minor and his parents is a requirement of due process. [Citation.] The notice provisions of the Juvenile Court Act [citation] provide several methods for fulfilling that requirement. Summons and a copy of the petition are to be directed to each of the respondents named in the petition. [Citations.] Service is to be made personally or by leaving a copy at the person’s abode and mailing a copy of the summons to that address. [Citation.] If personal or abode service is not made within a reasonable time or if the respondent lives outside the State, service may be made by certified mail. [Citation.] Finally, service may be made by publication if personal or abode service is not made within a reasonable time, if the person has been made a respondent under the general designation ‘All whom it may concern,’ or if the respondent’s whereabouts are not known.” In re J.P.J. (1985), 109 Ill. 2d 129, 135.

We note at this point that this is the second time the parties have been before this court, and much of the pertinent information relating to family background is set forth in our previous opinion (In re E.D. Mc. (1991), 216 Ill. App. 3d 896) (E.D. Mc. I). It is important now to consider in some detail our discussion of the issues in E.D. Me. I. In that case, the petition for adjudication of delinquency and wardship charged respondent with theft. Although Eugene Marth was not served with notice of the adjudicatory hearing, he was in fact properly served with the underlying petition, notice of the first hearing on the petition, and notice of the dispositional hearing. Respondent in E.D. Mc. I alleged, as he does here, that lack of notice to his father of the adjudicatory hearing rendered the proceedings void. The State argued, as it does here, that the issue was waived by failure to raise it prior to appeal.

In resolving these issues, this court first noted that questions regarding the State’s diligence in identifying or locating a parent, whose identity or address was not known to the State, could be waived if not raised in the trial court. (E.D. Mc., 216 Ill. App. 3d at 900, citing In re J.P.J., 109 Ill. 2d at 139-40.) However, since the address of respondent’s father was known and was listed on the amended petition, we held that waiver of the issue was not applicable. (E.D. Mc., 216 Ill. App. 3d at 900.) These facts remain the same in the instant case, and we again conclude, therefore, that waiver is not applicable. While it has no effect on this case, we note, as we did in E.D. Mc. I, that the Act was amended effective July 1, 1990, to provide that a party who was properly served or who appeared at the adjudicatory hearing or an earlier proceeding cannot claim that an order or judgment is void because of the failure to serve a necessary party unless that claim is raised before the start of the adjudicatory hearing. Ill. Rev. Stat. 1989, ch. 37, par. 801—14 (now Ill. Rev. Stat., 1990 Supp., ch. 37, par. 801—15 (see Pub. Act 86—1475, eff. Jan. 10, 1991)).

In rejecting respondent’s contention, however, we stated that his father was given proper notice of the first hearing on the amended petition. We therefore held that due process did not require notice of subsequent proceedings where the father failed to appear at the properly noticed proceeding. (E.D. Mc., 216 Ill. App. 3d at 901, citing In re G.L. (1985), 133 Ill. App. 3d 1048, 1051.) Rather, we found that the trial court obtained jurisdiction after the original notice of the petition was properly served and that the trial court had continuing jurisdiction to enter orders relating to the petition. E.D. Mc., 216 Ill. App. 3d at 902.

Were we to consider only the argument raised by respondent, that is, that the State failed to notify respondent’s father of continuances after the initial hearing on the petition, we would conclude that, based on E.D. Mc. I and G.L., the trial court was not deprived of jurisdiction. However, our review of the record reveals other possible notice defects not addressed by the parties. As these defects also may affect the jurisdiction of the trial court, we proceed sua sponte to consider them now.

As stated, the Juvenile Court Act provides several methods for fulfilling the notice requirement. (Ill. Rev. Stat. 1989, ch. 37, pars. 805—15, 805—16.) However, it has been previously stated that, if personal or abode service or service by certified mail is possible, the statute requires it. (In re J.P.J., 109 Ill. 2d at 136; In re J.K. (1989), 191 Ill. App. 3d 415, 417.) In the instant case, the State apparently only attempted personal service upon respondent’s father once. The summons was returned unserved. Thereafter, the State attempted to notify respondent’s father of the proceedings by publication notice. The record is bare, however, of any indication that the State attempted service by certified mail as required under the Act. J.P.J., 109 Ill. 2d 129; J.K., 191 Ill. App. 3d at 417.

The record is clear that the State failed to obtain personal or abode service or service by certified mail. In addition, we believe the State also failed to obtain proper service by publication. According to section 5—16(2) of the Act, the clerk of the court is to cause publication to be made “as soon as possible.” (Ill. Rev. Stat. 1989, ch. 37, par. 805—16(2).) According to section 5—16(3) of the Act, the clerk is also required at the time of the publication to send a copy of the notice by mail to each of the respondents. (Ill. Rev. Stat. 1989, ch. 37, par. 805—16(3).) Finally, the court may not proceed with the adjudicatory hearing until 10 days after service by publication on any custodial parent, guardian, or legal custodian. (Ill. Rev. Stat. 1989, ch. 37, par. 805—16(3).) Here, the publisher’s certification of the notice by publication indicates that the notice for the January 18, 1990, hearing was published on January 18. The certificate of mailing by the clerk of the court also indicates a mailing date of January 18. The certificate of publication for the February 8, 1990, hearing indicates that the notice was published on February 8. The certificate of mailing by the clerk of the court indicates a mailing date of February 9. In both instances notification by publication was not attempted until the actual date of the hearing, in contradiction of the requirements of the Act.

Thus, although the attempted notice by publication occurred more than 10 days prior to the actual date of adjudication, March 12, 1990, such notice was not properly made prior to the first scheduled hearing dates on January 18 or February 8, 1990. The situation here is therefore different from that in E.D. Me. I, where we held that the court obtained jurisdiction over the parties and the subject matter after the original proper notice of the filing of the delinquency petition. (E.D. Mc., 216 Ill. App. 3d at 902; see also G.L., 133 Ill. App. 3d at 1051.) Since, due to improper notice, the trial court did not have jurisdiction on January 18 or February 8, it did not thereafter acquire jurisdiction for the March 12 adjudicatory hearing by the mere lapse of time.

To summarize, the State initially failed to personally serve the respondent’s father. Thereafter, the State failed to attempt service by certified mail and also failed to properly obtain service by publication notice. Since the State failed to notify a known parent at a known address, we reverse the circuit court’s orders for lack of jurisdiction. People v. R.S. (1984), 104 Ill. 2d 1, 6; J.K., 191 Ill. App. 3d at 418-19.

Accordingly, the judgment of the circuit court of Ogle County is reversed.

Reversed.

McLaren and INGLIS, JJ., concur.