author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TIMOTHY A. BRANDOW, Defendant-Appellee.
    Second District
    No. 2—89—1061
    Opinion filed May 10, 1991.

      Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Timothy A. Brandow, was arrested on October 21, 1988, and charged by complaint and citation with misdemeanor driving while license revoked (Misdemeanor DWLR) (Ill. Rev. Stat. 1987, ch. 95½, par. 6—303(a)), case No. 88—TR—10803, and speeding (Ill. Rev. Stat. 1987, ch. 951/2, par. 11—601), case No. 88—TR—10804. Because the defendant had a previous conviction of DWLR, the State on July 5, 1989, elected to further charge the defendant by complaint with felony driving while license revoked (Felony DWLR) (Ill. Rev. Stat. 1987, ch. 95½, par. 6—303(d)), premised on the same incidents supporting the October 21, 1988, charges. After a finding of probable cause by the trial court, defendant entered a plea of not guilty to an information charging the Felony DWLR, case No. 89 — CF—170. On August 21, 1989, when the Felony DWLR appeared on the trial calendar, the court on its own motion dismissed cases Nos. 89 — CF—170, 88 — TR—10803, and 88 — TR— 10804, on the ground of double jeopardy. The court believed jeopardy had attached when it considered the cases as factors in aggravation during a prior sentencing hearing.

The State filed a timely written motion with the trial court requesting that it reconsider its ruling dismissing the three cases. The motion to reconsider was denied on October 5, 1989. The State now appeals, contending the trial court erred in dismissing the cases on the ground of double jeopardy.

For purposes of our jurisdiction to consider the State’s appeal, it should be noted that immediately following the trial court’s oral pronouncements of August 21, 1989, dismissing the cases, the prosecutor asked the court if he could make an oral motion for reconsideration at that time. The trial judge did not rule on this request or otherwise indicate he was ruling on a motion to reconsider. Defense counsel then filed a written motion for reconsideration on August 23, 1989. Based on the record, we consider the State’s written motion to be its initial motion to reconsider the court’s ruling.

Although the defendant has failed to file a brief in the case before us, we will consider the appeal under the guidelines set out in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The following excerpts from the record will establish the backdrop for the State’s appeal. When case No. 89 — CF—170 was called for trial on August 21,1989, the record indicates the following:

“MR. WILSON [Defense attorney]: I have a motion to dismiss for selective and/or discriminatory prosecution by the State. ***
***
THE COURT: *** All right, I wish, on my own motion, to dismiss 89 — CF—170 on the basis *** that [in] the prior driving while license revoked and driving under the influence case which I heard, this case was presented in aggravation and mitigation. I took it into consideration in aggravation in the sentence that I imposed. At the time it was presented by the State, there was no indication or statement on the record that this case was being presented for the limited purpose as to whether or not I should grant probation but was presented in aggravation as to sentencing; and because of that, jeopardy has arisen in the case. Punishment has already been imposed as far as this case is concerned, and I feel it’s my obligation to protect the rights of the Defendant. This is something that basically is known only to me as to whether I considered this case in sentencing.”

Following additional comments by the court and respective counsel, the record shows the trial court dismissed case Nos. 88 — TR—10803 and 88 — TR—10804 on double jeopardy grounds for the same reasons as the court's previous dismissal of case No. 89 — CF—170.

The record further reflects the following statements by.the prosecutor in court:

“MR. McCASKEY [Assistant State’s Attorney]: Judge, if I may, even if the Court’s ruling was that a Class A misdemeanor was considered in aggravation in sentencing, 88 — TR—12131 through 33, the Court can’t say that it considered a speeding case in aggravation in the same case.
THE COURT: You also presented it because you presented a background as to the stop.
MR. McCASKEY: We presented evidence of the speeding for the stop. We proved up the driving while license revoked offenses as a factor in aggravation. There was no showing of the speeding as a factor in aggravation, Judge.”

In dismissing the various charges, the trial judge stated he relied on the case of People v. Profit (1976), 37 Ill. App. 3d 918. The State argues Profit does not support the court’s ruling. We agree. In Profit, defendant alleged in a motion to dismiss pending criminal charges that the prosecutor’s decision to present evidence relating to those pending charges at a prior unrelated probation petition hearing constituted double jeopardy as to the pending charges. The trial court dismissed the pending charges without indicating any reasons therefore. In affirming the trial court’s dismissal, the appellate court pointed out that the common-law record was incomplete as to the grounds which may have supported the trial court’s ruling and, therefore, any doubt arising from the incompleteness of the record would be resolved against the State-appellant. The Profit court did not rule on the specific issue of whether consideration of the pending charges at both the prior probation petition hearing and the subsequent prosecution constituted double jeopardy.

The fifth amendment’s guaranty against double jeopardy prohibits multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) The State maintains that the defendant would not be twice punished if prosecuted and sentenced on the charges which the trial court dismissed.

In Sekou v. Blackburn (5th Cir. 1986), 796 F.2d 108, the defendant argued that he was punished twice for the same offense in violation of the double jeopardy clause when he was sentenced for felony murder, because the murder had been considered as an aggravating circumstance during his sentencing on an earlier conviction of armed robbery. The court ruled that consideration of other criminal activity at sentencing does not implicate the double jeopardy clause because the defendant is not actually being punished for the crime considered. Rather, the other crimes aggravate his guilt and justify heavier punishment for the specific crime of which the defendant has been convicted. Sekou, 796 F.2d at 112.

Similarly, in People v. Bankhead, (1984), 123 Ill. App. 3d 137, during a sentencing hearing on theft charges, the trial court considered evidence of defendant’s conduct in unrelated pending burglary charges. When later convicted of those burglary charges, defendant claimed such conviction violated his fifth amendment rights against double jeopardy. Defendant asserted he was previously punished when evidence of the burglary charges was introduced during the theft case, and the sentencing judge noted that evidence concerning the defendant’s “subsequent criminal acts” (the burglary) was the only reason for imposition of a term of 90 days’ periodic imprisonment as a condition of probation. The appellate court ruled that the defendant was punished for the offense with which he was charged (theft) and that consideration of other offenses (burglary) in determining the punishment did not amount to punishing the defendant for the burglaiy offense, regardless of whether evidence of the burglary was the “sole” reason for aggravating his sentence or only one of several reasons for doing so.

Admission of criminal charges at sentencing is no more a double jeopardy violation than admission of criminal convictions. People v. Sanchez (1986), 115 Ill. 2d 238, 277.

In the case before us, the record is clear that the trial judge considered testimonial evidence of the circumstances relating to the pending DWLR and speeding cases as factors in aggravation for purposes of imposing sentence in unrelated cases. We adopt the reasoning set forth in Sekou and Bankhead and find that the trial court’s consideration of, and reliance on, evidence relating to the factual circumstances of pending charges as aggravating factors in imposing a sentence did not constitute a violation of defendant’s fifth amendment rights against double jeopardy.

We reverse the order of the trial court dismissing case Nos. 89— CF — 170, 88 — TR—10803, and 88 — TR—10804, and remand for further proceedings.

Reversed and remanded for further proceedings.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
      In re ADOPTION OF BABY GIRLS MANDELL (Connie Mandell, Petitioner-Appellant, v. John Doe et al., Respondents-Appellees; Vincent Robertelli, Guardian ad litem).

    Second District
    No. 2—90—1125
    Opinion filed May 10, 1991.
    John Steven Cole, of Cole & Associates, Ltd., of Elmhurst, for appellant.
    Joel D. Arnold, of Fortunato, Farrell & Davenport, Ltd., of Westmont, for appellees.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Petitioner, Connie Mandell, filed a petition for relief from judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) in the circuit court of Du Page County seeking to vacate the judgment of adoption awarding custody of her two daughters to respondents, John and Mary Doe. Petitioner alleged that her consent to the adoption was invalid because it was given in return for monetary compensation. The circuit court granted respondents’ motion pursuant to section 2 — 619(aX5) of the Code (Ill. Rev. Stat. 1989; ch. 110, par. 2—619(aX5)) to dismiss the section 2 — 1401 petition, and petitioner now appeals.

Petitioner presents essentially two issues on appeal: (1) whether the 12-month limitation on actions seeking to void or revoke a consent to adoption in section 11 of “An Act in relation to the adoption of persons ***” (Adoption Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1513) applies to the section 2—1401 petition filed herein; and (2) whether a consent to adoption given in return for valuable consideration renders void ab initio a judgment of adoption based on the consent. In addition, respondents have filed a motion with this court to strike certain portions of petitioner’s brief. We have ordered that the motion and petitioner’s objection thereto be taken with the case.

The following facts are taken from the well-pleaded allegations of plaintiff’s section 2 — 1401 petition. As in any civil case, such allegations are regarded as true on review of the order granting the motion to dismiss. Glenn v. People (1956), 9 Ill. 2d 335, 340-41, 137 N.E.2d 336; In re Marriage of Reines (1989), 184 Ill. App. 3d 392, 404, 540 N.E.2d 394.

In September 1987, petitioner gave birth to twin daughters (the twins). The parental rights of the twins’ father have been terminated. After the twins’ birth, respondents contacted the petitioner seeking to adopt the twins for consideration of $8,000. One half of the $8,000 was to be paid to petitioner when she signed the consent to the adoption, and the other half was to be paid upon the entry of a judgment of adoption. Petitioner signed the consent to adoption on or about October 10, 1987, but was not paid the $4,000 agreed on at this time. It is alleged that, approximately six months later, a judgment of adoption was entered by the circuit court granting adoption of the twins to respondents. Following the entry of the judgment, petitioner was paid the $8,000 in three installments.

Petitioner filed her section 2 — 1401 petition on February 6, 1990, alleging that her consent to the adoption based on the exchange of money was in violation of statute (Ill. Rev. Stat. 1989, ch. 40, par. 1702) and was, therefore, void. Petitioner asserted that, because the consent to the adoption was void, the judgment of adoption itself was void and should be vacated. Alleging that “the prohibited transaction^) was the practice of a fraud upon this court and upon the people of Illinois,” petitioner asked that she be granted custody of the twins or, in the alternative, that further proceedings on custody be initiated.

The circuit court appointed a guardian ad litem to represent the twins’ interests in the proceedings.

Pursuant to section 2 — 619(a)(5) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(5)), respondents filed a motion to dismiss petitioner’s section 2 — 1401 petition based on section 11 of the Adoption Act, which provides that actions to void or revoke a consent to adoption must be made within 12 months from the date of the consent. Respondents noted that the instant petition was filed more than two ■years after petitioner had given her consent to the adoption.

Petitioner’s response to the motion to dismiss contended that her section 2 — 1401 petition was timely because it was filed within two years of the entry of the judgment of adoption. Petitioner contended that the two-year limitation on the filing of section 2 — 1401 petitions for relief from judgments is not affected by the Adoption Act’s 12-month limitation on challenges to a consent to adoption. Petitioner further contended that the judgment of adoption was void because it was based on a consent which was void. Petitioner contended that section 11 of the Adoption Act has no limiting effect on her action because the judgment of adoption was purportedly void ab initio.

The trial court ruled that petitioner’s action was barred by the requirement contained in section 11 of the Adoption Act that actions to void or revoke a consent to adopt must be brought within 12 months. The court therefore dismissed the section 2 — 1401 petition with prejudice.

We first examine petitioner’s contention that the Adoption Act’s 12-month limitation period does not apply to a section 2 — 1401 petition which seeks to vacate a judgment of adoption based on a consent obtained illegally in exchange for compensation (Ill. Rev. Stat. 1989, ch. 40, pars. 1701 through 1705). Section 11 provides, in pertinent part, as follows:

“§11. Consents, surrenders, irrevocability. A consent to adoption by a parent *** executed and acknowledged in accordance with the provisions of Section 8 of this Act *** shall be irrevocable unless it shall have been obtained by fraud or duress on the part of the person before whom such consent, surrender or other document equivalent to a surrender is acknowledged pursuant to the provisions of Section 10 of this Act or on the part of the adopting parents or their agents and a court of competent jurisdiction shall so find. No action to void or revoke a consent to or surrender for adoption, including an action based on fraud or duress, may be commenced after 12 months from the date the consent or surrender was executed." (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 1513.)

The 12-month limitation on actions challenging consents was added effective August 19,1983. See Pub. Act 83 — 138, §3.

Petitioner contends that section 11 of the Adoption Act applies only to a “new” action to challenge the consent and contends that the instant proceeding, while not precisely a continuation of the original adoption action, is nevertheless not a “new” action. Therefore, petitioner argues, the 12-month limitation does not apply.

We believe that this patently untenable contention would render the Adoption Act’s 12-month limitation period virtually meaningless. Section 11 does not support petitioner’s distinction relating to a “new” action; it simply states that “fn]o action to void or revoke a consent *** may be commenced after 12 months from the date of the consent.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 1513.) We believe this clear and unequivocal language leaves no room for petitioner’s interpretation that section 11 does not apply to an action under section 2 — 1401. Even though an action under section 2 — 1401 may be brought within two years of the challenged judgment (see Ill. Rev. Stat. 1989, ch. 110, par. 2—1401), section 2 — 1401 is applicable in a multitude of settings, while section 11 of the Adoption Act only applies to the subject of adoptions. Settled principles of statutory construction call for the specific to control over the general. (People v. Singleton (1984), 103 Ill. 2d 339, 345, 469 N.E.2d 200.) Here, we find that the specific 12-month limitation of section 11 of the Adoption Act is controlling even if the action is brought under section 2 — 1401 of the Code.

Petitioner has framed the remaining issue on appeal in three parts: (1) whether the illegal payment of compensation for a consent to adoption renders the judgment of adoption void for lack of jurisdiction; (2) whether a section 2 — 1401 is a permissible but not exclusive method to attack a void judgment; and (3) whether a judgment based on a purportedly void consent can itself be attacked as void after the 12-month limitation on challenges to a consent to adoption has expired. We believe, however, that these three arguments can be effectively stated as one, essential contention: whether the failure to raise the purported illegality of the consent to adoption within the prescribed 12-month period forecloses a challenge to the judgment of adoption based on the consent.

The heart of petitioner’s position on appeal is that the judgment of adoption is void and may be attacked at any time. However, all of petitioner’s contentions in this regard are premised on her allegation that the consent to adoption was void. We have already concluded, however, that, even if the action is brought under section 2— 1401, a challenge to the validity of the consent to adoption must be brought within 12 months. Petitioner’s failure to attack the validity of the consent to adoption within this period is fatal to her attempt to attack the judgment, regardless of the means utilized. If the consent cannot be challenged, then petitioner’s arguments based on the invalidity of the consent must necessarily fail.

Our decision in In re Adoption of Kindgren (1989), 184 Ill. App. 3d 661, 540 N.E.2d 485, does not compel a contrary conclusion. In Kindgren, we held that a consent to adoption given in exchange for an illegal payment of money renders such consent void as against public policy. (Kindgren, 184 Ill. App. 3d at 667, 540 N.E.2d at 489.) However, in Kindgren, unlike the instant case, it was the consent, not a judgment of adoption, which was challenged. Moreover, the challenge to the consent to adoption in Kindgren was apparently brought as part of the adoption proceedings and within the prescribed 12-month period. In the context of an action brought within the prescribed time period, the court in Kindgren held that the illegal payment of money rendered the consent void and provided a basis to strike the petition for adoption. Kindgren, 184 Ill. App. 3d at 667, 540 N.E.2d at 489.

Here, on the other hand, petitioner did not challenge the validity of her consent to adoption within the adoption proceedings or within the prescribed 12-month period. Thus, petitioner is barred under these circumstances from attempting to establish that the consent to adoption is void, and all of petitioner’s contentions which are based on this premise, including her jurisdictional argument, must be rejected.

There is a strong public policy favoring the finality and stability of adoptions. (In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 578, 338 N.E.2d 862.) If petitioner wished to challenge the validity of her consent to adoption, she was required to do so within the time period prescribed in section 11 of the Adoption Act. Having failed to do so, petitioner cannot now circumvent this limitation by characterizing her action as a challenge to the judgment of adoption when her position is bottomed entirely on a challenge to the validity of her consent.

For these reasons, we conclude that the trial court correctly dismissed petitioner’s section 2 — 1401 petition. Our conclusion makes it unnecessary for us to address respondents’ motion to strike portions of petitioner’s appellate brief.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and UNVERZAGT, JJ., concur.


author: JUSTICE INGLIS

text:
    IDEAL INSURANCE AGENCY, INC., Plaintiff-Appellant, v. SHIPYARD MARINE, INC., Defendant-Appellee.
    Second District
    No. 2—90—1008
    Opinion filed May 10, 1991.

      Daniel L. Giudice and Robert Earl Dooley, both of Dooley, Chessick & Giudice, of Schaumburg, for appellant.
    Donald B. Garvey and C. Kent Frederick, both of Bishop, Rossi, Garvey & Scarlatti, of Oak Brook, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Ideal Insurance Company, appeals from an order of the circuit court of Du Page County which quashed the service of summons on defendant, Shipyard Marine, Inc. Plaintiff contends that the circuit court erred in determining that there was no in personam jurisdiction over defendant, a Wisconsin corporation. The issue on appeal is whether defendant transacted business in this State so as to come within the reach of the State’s “long-arm” jurisdiction.

In 1989, the president of plaintiff, Gerald Grupe, was interested in buying a 43-foot Wellcraft Portofino boat to conduct a charter boating business. He was considering buying the boat from Rodi Yachts in Chicago (Chicago company), but had not actually seen the boat. Grupe learned that a Portofino boat was on display at a boat show in Racine, Wisconsin. On August 16, 1989, Grape travelled to Racine and found the boat. While touring the boat, he was approached by Craig Braun, the president of defendant, who owned the boat. Grape stated in his affidavit that Braun asked him if he was interested in the boat and that Grape told him he was planning to purchase such a boat from the Chicago company. Grape stated that Braun then said his company serviced and delivered boats in Chicago and that plaintiff should consider buying the boat from defendant.

Grape’s affidavit further indicated that Braun made the next telephone call in which Braun stated that defendant would match any bid which the Chicago company made and that defendant could deliver the boat in October or November because it had already had a slot with the manufacturer. It appears from the affidavits that both parties made telephone calls between defendant’s Green Bay, Wisconsin, office and plaintiff’s Lombard, Illinois, office. The parties discussed the cost of adding additional equipment and options to the price of the basic Portofino boat. Plaintiff decided to accept delivery of the boat at the manufacturer’s docks in Florida, where plaintiff could operate charters during the winter.

On September 6, 1989, plaintiff received a final quotation and order form via facsimile machine from the Chicago company. Plaintiff telephoned defendant with the price, which defendant said it would match plus “throw in” a $5,000 autopilot device at no charge and make delivery by October 14, 1989. Defendant claimed that date was sooner than the other company could deliver the boat because defendant already had a hull arranged with the manufacturer and the Chicago company was allegedly “on probation” with the manufacturer. Defendant sent a contract by facsimile machine to plaintiff with instructions to sign the facsimile page and re-fax the page back to defendant. Defendant also instructed plaintiff to execute a formal copy of the contract in addition to the facsimile and send it back along with a $10,000 check as a deposit. On September 11, 1989, Grape telephoned defendant, who told him that Braun would also transport the boat by trailer from Florida to Chicago in the summer, for a fee of $5,200. Plaintiff accepted defendant’s bid, signed the contract in its office in Lombard, Illinois, sent a facsimile copy of the signed page to defendant, and mailed the executed copy and a $10,000 check to defendant in Wisconsin. The record does not reflect when Braun, as president of defendant, signed the contract.

The contract listed the basic price of the boat as $221,700, plus 33 specified options which brought the total to $276,500, less a discount of $53,758, and plus Florida sales tax of $11,137, for a balance of $233,879. No place of delivery is specified in the contract. The back side of the contract contained the following paragraph:

“10. CONTROLLING LAW. The parties acknowledge that the transaction which is the subject of this contract bears a reasonable relation to the State of Wisconsin and that the laws of the State of Wisconsin shall govern their rights and duties. The parties specifically intend that the provisions of the Uniform Commercial Code-Sales, as enacted in the State of Wisconsin. [sic]”

When plaintiff’s bank failed to approve financing, plaintiff can-celled the order and requested defendant to return the deposit. Defendant refused, and plaintiff filed suit in the circuit court of Du Page County, Illinois. Defendant filed a special and limited appearance (see Ill. Rev. Stat. 1989, ch. 110, par. 2—301) and moved to quash the service of summons on the ground that jurisdiction was improper under the “long-arm” statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—209). The circuit court agreed and granted defendant’s motion. Plaintiff now appeals.

The issue before this court is whether the State of Illinois can properly exercise jurisdiction over the nonresident defendant. This issue involves three similar but distinct analyses which can easily be confused and combined. The first is whether a nonresident defendant was “doing business” in this State so as to maintain a presence subjecting it to in personam jurisdiction for all matters. The second analysis is, alternatively, where a defendant is not doing business in this State generally, whether it has sufficiently transacted a business act in this State to come within the “long-arm” jurisdiction. Third, whether the defendant has created certain minimum contacts with this State such that due process of law would not be violated in compelling it to litigate the controversy in this State.

A court need not make each analysis in every case. For example, it is unnecessary to determine whether the requirements of the long-arm statute have been met when the due process clause bars any exercise of jurisdiction over a defendant. (Wiles v. Morita Iron Works Co. (1988), 125 Ill. 2d 144, 149; Chalek v. Klein (1990), 193 Ill. App. 3d 767, 770-72 (nonresident passive buyers who purchase by mail order do not have minimum contacts with Illinois, disagreeing with the rule in Empress International, Ltd. v. Riverside Seafoods, Inc. (1983), 112 Ill. App. 3d 149, 154-55).) Conversely, if the long-arm requirements are not met, there is no need to determine whether jurisdiction is constitutionally permissible under the due process clause. R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 311; Konicki v. Wirta (1988), 169 Ill. App. 3d 21, 25-26.

First, jurisdiction in this case is grounded solely on the long-arm power of this State, not on the basis that defendant was “doing business” in this State such that it maintained a presence here. We note here that the “doing business” form of jurisdiction has recently been codified as section 2 — 209(b)(4) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—209(b)(4)). While there were vague references that defendant admitted to delivering and servicing boats in Illinois, defendant denied that it had an office or a sales agent in this State. Plaintiff’s allegations were insufficient to establish that defendant was continuously and systematically doing business in this State so as to be present for service of process in the same manner as other resident corporations. See Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 557-58, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857; Chandler Leasing Co. v. Trus Joist Corp. (1980), 90 Ill. App. 3d 875, 878.

Next, we analyze whether Illinois has jurisdiction over defendant under the long-arm statute. Under the long-arm statute, a nonresident submits to the jurisdiction of this State upon “(1) [t]he transaction of any business within this State; *** [or] (7) [t]he making or performance of any contract or promise substantially connected with this State.” (Ill. Rev. Stat. 1989, ch. 110, pars. 2—209(a)(1), (a)(7).) Only the cause of action arising from that act may be asserted against a defendant based on long-arm jurisdiction. (Ill. Rev. Stat. 1989, ch. 110, par. 2—209(f).) Thus, an Illinois court will accept jurisdiction only where the defendant transacted business in this State; the cause of action arose from the transaction; and the exercise of jurisdiction is consistent with due process. Mandalay Associates Limited Partnership v. Hoffman (1986), 141 Ill. App. 3d 891, 894.

The scope of the long-arm statute may not be coextensive with the jurisdictional aspect of the Federal due process considerations in any particular situation. The long-arm statute has a definite meaning and scope which does not fluctuate with every new pronouncement of the limits of Federal due process, which merely delineates the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents. (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436.) The Illinois long-arm statute may restrict the power that the courts of this State have to bring nonresidents before them to a greater extent than do the Federal due process clause and the “minimum contacts” standard which the supreme court has developed over the years. Rollins v. Ellwood (1990), 141 Ill. 2d 244, 271-72.

On September 7, 1989, the day defendant sent its bid, before the parties made several telephone calls and before plaintiff signed the contract, a new version of the long-arm statute became effective. It states:

“(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—209(c).)

The Federal courts, in their exercise of diversity jurisdiction, have interpreted the new section 2 — 209(c) to rule that the reach of the long-arm statute is coextensive with the limits of Federal due process “minimum contacts” requirements. (FMC Corp. v. Varonos (7th Cir. 1990), 892 F.2d 1308, 1310-11 n.5; Bankers Leasing Association, Inc. v. Tompkins, McGuire & Wachenfeld (N.D. Ill. 1990), 734 F. Supp. 309, 310-11.) However, this basis of in personam jurisdiction was not raised in the trial court or in the parties’ briefs and is therefore waived. (See Konicki, 169 Ill. App. 3d at 25.) Similarly, the applicability of section 2 — 209(aX7), which was also effective September 7, 1989, and which provides that the making of a contract in this State is a basis of jurisdiction, was not raised before the trial court. Plaintiff has listed subsection 2 — 209(a)(7) in its brief but does not argue it as a separate basis of jurisdiction. Thus, the applicability of that section is also waived. Brainerd v. Balish (1987), 164 Ill. App. 3d 836, 839 n.1.

Our primary analysis, then, is to determine whether defendant is subject to Illinois’ long-arm jurisdiction by transacting business in this State. To constitute the “transaction of any business” within this State, a defendant must voluntarily seek the benefits and protections of the laws of this State. (Konicki, 169 Ill. App. 3d at 26.) Section 2 — 209(aXl) requires, essentially, that a plaintiff’s claim lie in the wake of the commercial activities by which the defendant allegedly submitted to the jurisdiction of Illinois courts. (Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 833.) Only the acts of the defendant are considered when determining whether business was transacted in Illinois. Konicki, 169 Ill. App. 3d at 26.

The determination of whether a defendant sufficiently transacted business in Illinois so as to avail himself of the benefits of Illinois law requires consideration of several factors, including who initiated the transaction, where the contract was entered into, and where the performance of the contract was to take place. (Gordon v. Tow (1986), 148 Ill. App. 3d 275, 280-81.) While none of these factors is by itself controlling, each of them is significant; however, Illinois cases provide little guidance in balancing these factors. (See Leonardo’s, Inc. v. Greathall, Ltd. (N.D. Ill. 1989), 714 F. Supp. 949, 953 (comparing Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, with AAAA Creative, Inc. v. Sovereign Holidays, Ltd. (1979), 76 Ill. App. 3d 514).) In addition, some courts have suggested that those cases decided before Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, in which Illinois adopted the two-part analysis of applying both the statutory requirement and the constitutional requirement, are suspect, because before 1981 some courts applied only the constitutional requirement. (Leonardo’s, 714 F. Supp. at 953; Rose v. Franchetti (N.D. Ill. 1989), 713 F. Supp. 1203, 1207.) However, even after 1981, some courts have used a combined “minimum contacts” constitutional analysis and business transaction analysis and relied on pre-Green precedent. See, e.g., Capital Associates Development Corp. v. James E. Roberts-Ohbayashi Corp. (1985), 138 Ill. App. 3d 1031,1037-38.

In discussing the Gordon factors, plaintiff contends that the affidavits show it was defendant who initiated the transaction. It may be true that Braun did strike up the conversation with plaintiff’s president, but any significance of that fact is tempered by the fact that this initial conversation occurred in Wisconsin and plaintiff was “touring” defendant’s boat at the time. Plaintiff went to Wisconsin because he intended to purchase a boat like the one defendant was exhibiting for sale in Wisconsin. The initiation of a transaction is an important factor in determining whether a defendant transacted business in this State (Woodfield Ford, 77 Ill. App. 3d at 349), and in this case, the contact was initiated in Wisconsin.

Plaintiff also argues that the contract was entered into in Illinois. “The long-established rule in Illinois governing the making of contracts is that the place where the last act necessary to give validity to the contract is done is the place where the contract is made.” (Youngstown Sheet & Tube Co. v. Industrial Comm’n (1980), 79 Ill. 2d 425, 433; Gordon, 148 Ill. App. 3d at 282.) Plaintiff executed the contract in Illinois and mailed the deposit check from Illinois. Defendant contends that the contract was formed in Wisconsin because it required the reproduction of the contract on its facsimile machine in Wisconsin and the receipt of the deposit in Wisconsin. Defendant further contends that it was not willing to commit itself to order an expensive boat from the manufacturer based on a promise that a check had been mailed. However, the record is unclear as to where the contract was executed. Assuming arguendo that plaintiff’s version is correct, the mere execution of a contract within Illinois is not by itself a sufficient transaction of business to fit within the long-arm statute. Kotlisky v. Kotlisky (1990), 195 Ill. App. 3d 725, 737, citing Met-L-Wood Corp. v. Lifetime Pools, Inc. (N.D. Ill. 1979), 475 F. Supp. 149, 151 (“Formalities of contract execution are not determinative for purposes of jurisdiction”).

The third Gordon factor is where the contract would be performed. Plaintiff points to defendant’s agreement to haul the boat overland to Illinois in the summer; the servicing of the boat in Illinois; plaintiff’s entire performance, which was borrowing and drawing the funds from an Illinois bank; and defendant’s claim to have worked in Illinois in the past as an inducement for plaintiff to select its bid. In the trial court, defendant contended that performance was to be in Wisconsin, based on section 2 — 308 of the Uniform Commercial Code-Sales (Commercial Code) (Ill. Rev. Stat. 1989, ch. 26, par. 2—308; Wis. Stat. §402.308 (1964)), which states that the place of delivery of goods is the seller’s place of business when the contract is silent. However, section 2 — 308 also states that, when the goods are identified (the contract listed the serial number of the hull) and are known to be in some other place, that location is the place of delivery. (Ill. Rev. Stat. 1989, ch. 26, par. 2—308(b); Wis. Stat. §402.308(2) (1964).) This part of the Commercial Code supports defendant’s alternate argument that the place of performance, delivery of the boat at the manufacturer’s dock, was to be Florida, which is also supported by the parties’ affidavits and the contract, which specified the payment of Florida sales tax.

We also believe performance was to be in Florida. The other agreements for services appeared to be separate from this transaction for the purchase of the boat. While plaintiff’s facts are relevant to the question of whether defendant had “minimum contacts” with Illinois under the due process clause, they are not sufficient to show that the performance of this contract would be in Illinois. Moreover, exchanges of telephone calls and correspondence are not enough to support jurisdiction. (Konicki, 169 Ill. App. 3d at 27; Gordon, 148 Ill. App. 3d at 281.) Under this contract, nothing mandated payment in Illinois or from Illinois, and plaintiff’s plan to use funds in an Illinois bank was not sufficient to obtain jurisdiction over defendant or to show defendant sought the benefits of Illinois law. See Konicki, 169 Ill. App. 3d at 27; Blanco Oso International Trading Co. v. Southern Scrap Material Co., Ltd. (N.D. Ill. 1990), 735 F. Supp. 294, 296.

On the balance, the relevant factors weigh against finding jurisdiction over defendant. There is little to show that defendant intended to avail itself of Illinois law other than the fact that it made telephone calls here, sent the contract here to be signed and stated it would perform services here in the future for separate fees. However, the initial contact and negotiation were in Wisconsin and performance was substantially to be in another State (Florida). Thus, we hold that defendant did not come within the reach of the long-arm provision of section 2 — 209(a)(1).

Given that we have determined that the requirements of the long-arm statute were not met in this case, we have no reason to consider whether jurisdiction was constitutionally permissible under the due process clause. See R.W. Sawant, 111 Ill. 2d at 311; Konicki, 169 Ill. App. 3d at 25-26.

For these reasons, the order of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and McLAREN, JJ., concur.


author: JUSTICE NICKELS

text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. PETER S. BAASKE et al., Defendants and Counterplaintiffs-Appellants.
    Second District
    No. 2—90—0905
    Opinion filed May 8, 1991.

      William S. Wojcik, of Wojcik & Wojcik, of Woodridge, for appellants.
    Robert L. Bartolone and Sandra Young, both of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendants and counterplaintiffs, Peter and Miriam Baaske, and Walter and Cynthia Baaske as guardians and next friends of Erin and Brittany Baaske (the Baaskes), appeal from a judgment entered on the pleadings on the Baaskes’ counterclaim for declaratory judgment. On appeal, the Baaskes contend that the nonbinding arbitration clause in the uninsured motorist section of their policy with plaintiff and counterdefendant, American Family Mutual Insurance Company (American Family), violates the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 613 et seq.) and is contrary to public policy.

In March 1988, Peter, Miriam, Erin and Brittany Baaske were injured when the car they were riding in was struck by a car driven by an uninsured motorist. At the time of the accident, Peter had an automobile insurance policy -with American Family with limits of $100,000/ $300,000. The Baaskes filed claims under the uninsured motorist coverage of the policy. Apparently, the parties were unable to agree on the amount of the claim, and the Baaskes requested arbitration. The “Arbitration” section in the uninsured motorist provision of the policy provides:

“We or an insured person may demand arbitration if we do not agree:
1. That the person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle.
2. On the amount of payment under this Part.
If the insured person requests arbitration, that person and we will each select one arbitrator. The two arbitrators will choose a third. If arbitrators are not selected within 45 days from the insured person’s requests either that person or we may request that the arbitration be submitted to the American Arbitration Association.
Any arbitration award not exceeding the minimum limit of the Illinois Safety Responsibility Law:
1. Will be binding; and
2. May be entered as a judgment in any court having jurisdiction.
***
If any arbitration award exceeds the minimum limit of the Illinois Safety Responsibility Law, either party has a right to trial on all issues in any court having jurisdiction.”

The Baaskes and American Family named their arbitrators. A problem arose, however, concerning whether the Baaskes’ arbitrator was discharged, and, as a result, the third arbitrator was not named within 45 days. The Baaskes then requested that the dispute be submitted to the American Arbitration Association (the AAA).

American Family filed a complaint for declaratory judgment requesting that the court determine whether the Baaskes were in compliance with the arbitration clause and whether, under the circumstances, they were entitled to submit the dispute to the AAA. The Baaskes responded with a counterclaim for declaratory judgment. They sought a declaration that the policy provision allowing for trial after arbitration if the award exceeds the minimum limit of the Illinois safety responsibility law (the nonbinding arbitration clause) was contrary to section 143a(l) of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a) as well as public policy.

American Family filed a motion for judgment on the pleadings on the complaint and the counterclaim. Following a hearing, the court denied the motion for judgment on the pleadings as to the complaint, but it entered judgment on the counterclaim. The court found that there was “no specific language *** in the statute which would preclude the form of nonbinding arbitration contained in the policy” and that the nonbinding arbitration clause was not contrary to public policy. Following the entry of a final order on the complaint, the Baaskes filed their notice of appeal from the judgment on the counterclaim.

Section 143a(l) of the Code requires automobile insurance carriers to provide uninsured motorist coverage to their policyholders. It also provides:

“No *** policy shall be renewed or delivered or issued for delivery in this State *** unless it is provided therein that any dispute with respect to [uninsured motorist] coverage shall be submitted for arbitration to the American Arbitration Association or for determination in the following manner: Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the two arbitrators so named shall select a third arbitrator. If such arbitrators are not selected within 45 days from such request, either party may request that such arbitration be submitted to the American Arbitration Association.” (Ill. Rev. Stat. 1987, ch. 73, par. 755a(1).)

The Baaskes contend that where uninsured motorist claims are involved the statute provides for only one method of dispute resolution, which is arbitration. They conclude, therefore, that the policy provision permitting trial after arbitration violates the statute. American Family disagrees, contending that the statute merely requires the parties to arbitrate first and does not preclude subsequent trial. The issue is whether section 143a(l) mandates binding arbitration.

In construing a statute, courts must ascertain and give effect to the intent of the legislature and, accordingly, must look to the statutory language as the best indication of the intent of the drafters. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) Under the statute, disputes involving uninsured motorist claims must be submitted for arbitration; the word “arbitration,” however, is not defined in the statute or elsewhere in the Code. When a statutory term is undefined, it must be given its ordinary and popularly understood meaning. Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 423.

“Arbitration” is defined as the “hearing and determination of a case between parties in controversy by a person or persons chosen by the parties or appointed under statutory authority instead of by a judicial tribunal provided by law” (Webster’s Third New International Dictionary 110 (1986)), or as the “reference of a dispute to an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by the arbitrator’s award issued after a hearing,” or as “[a]n arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to established tribunals of justice” (Black’s Law Dictionary 96 (5th ed. 1979)). Based on these definitions, we believe that arbitration is ordinarily and popularly understood to be binding and to be an alternative to or replacement for the judicial resolution of a dispute.

This interpretation is further supported by precedent from other jurisdictions finding similar or identical language to manifest a clear legislative intent that uninsured motorist arbitration statutes require binding arbitration. In Goulart v. Crum & Forster Personal Insurance Co. (1990), 222 Cal. App. 3d 527, 271 Cal. Rptr. 627, the court held that, although the statute “[did] not expressly say the arbitration between the insurer and the insured is ‘binding’ that interpretation is necessarily drawn from the statutory language.” (Goulart, 222 Cal. App. 3d at 529, 271 Cal. Rptr. at 628.) The absence of specific statutory language requiring binding arbitration cannot frustrate a legislative intent to create binding arbitration. (Pepin v. American Universal Insurance Co. (R.I. 1988), 540 A.2d 21, 22, 23.) The “extended history of encouraging arbitration clearly implie[d] that normally it should be [binding], and, that at least with respect to damage issues, the arbitration award should not be subject to de novo trial court review.” Schmidt v. Midwest Family Mutual Insurance Co. (Minn. 1988), 426 N.W.2d 870, 875.

Admittedly, arbitration is not always binding. For example, mandatory arbitration pursuant to Supreme Court Rules 86 through 95 (134 Ill. 2d Rules 86 through 95) is not binding. Any party who was present at the arbitration hearing may reject the arbitrators’ award and request to proceed to trial (134 Ill. 2d R. 93). The supreme court rules, however, explicitly provide that arbitration pursuant to those rules is not binding, and the procedures for and costs of rejecting the arbitrators’ award are set out (134 Ill. 2d R. 93). There are no similar provisions in section 143a(l) or elsewhere in the Code. We must conclude that arbitration pursuant to section 143a(l) is binding arbitration.

While parties are free to make their own contract of insurance, statutes that are in force at the time the policy is issued are controlling, and policy provisions in conflict with statutes are void. (Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 854.) The statute in force at the time the Baaskes’ policy was issued called for binding arbitration of disputes over uninsured motorists claims; the provision of the insurance contract permitting trial after arbitration where the award exceeded the minimum limits of the safety responsibility law is in conflict with that statute, and it is void.

In light of our resolution of this issue, we need not address the Baaskes’ public policy argument. However, we again note that other jurisdictions have considered this question and found that public policy constrains the interpretation of “arbitration” to mean binding arbitration. Schmidt, 426 N.W.2d at 875; Mendes v. Automobile Insurance Co. (1989), 212 Conn. 652, 563 A.2d 695; Nationwide Mutual Insurance Co. v. Marsh (1984), 15 Ohio St. 3d 107, 472 N.E.2d 1061.

The judgment of the circuit court of Du Page County on the Baaskes’ counterclaim for declaratory judgment is reversed.

Reversed.

REINHARD, P.J., and DUNN, J., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAVINDRAKUMAR PATEL, Defendant-Appellant.
    Second District
    No. 2—89—1373
    Opinion filed May 9, 1991.

      Robert J. Hauser, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Ravindrakumar Patel, appeals from his conviction of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(a)(4)). Defendant was originally charged with one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14), one count of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(2)), and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(a)(4)), following an alleged sexual act against C.R., a physically handicapped person, on January 23, 1989.

On August 23, 1989, the trial court, over defense counsel’s objection, allowed the State to file a new indictment, which charged defendant with three counts of aggravated criminal sexual assault and one count of criminal sexual assault. Each count alleged that, by the use of force, defendant had placed his penis on the victim’s anus. Subsequently, defendant waived his right to a jury trial. Immediately prior to trial, defendant moved the court below to dismiss the indictment, alleging the pertinent statute was not consistent with the legislature’s purposes and it was overly broad. The court ordered said motion to be heard at a later date, at which time defendant’s motion was denied.

At the bench trial’s conclusion, the trial court found defendant not guilty as to the counts charged in the indictment. The court then found defendant guilty of aggravated criminal sexual abuse, which it determined to be a lesser-included offense of aggravated criminal sexual assault. The trial court subsequently denied defendant’s post-trial motion and sentenced defendant to a five-year term of imprisonment. This appeal followed.

Defendant raises four issues, namely, (1) the trial court erred in finding him guilty of aggravated criminal sexual abuse; (2) the trial court erred in determining that aggravated criminal sexual abuse is a lesser-included offense of aggravated criminal sexual assault; (3) the trial court erred in denying his motion for a directed verdict; and (4) aggravated criminal sexual assault and aggravated criminal sexual abuse violate his constitutionally guaranteed right to due process.

We first address the issue of whether the evidence supported a conviction of aggravated criminal sexual abuse. Judy Rippberger testified that she is a treatment nurse employed by the Brentwood North Nursing Home. On January 23, 1989, she was assigned to the skilled unit of that nursing home which included room 107, bed 2, in which C.R. was confined. Rippberger first entered room 107 at 9:45 a.m. She observed defendant, who worked as a nurse’s aid, fixing a basin of water with which to give C.R. a bath. At this time, C.R. was lying on her back with her upper body exposed. Rippberger was in the room for approximately 30 to 60 seconds before leaving and closing the door. She returned to the room approximately one minute later. C.R. was now completely exposed lying on her left side. Defendant requested that Rippberger wait for him to complete the bed bath before beginning C.R.’s tube feeding. This was not an unusual request.

When, some minutes later, Rippberger entered room 107 for the third time, she observed defendant “laying [sic] on top of C.R. and he was moving up and down his buttocks. *** [C.R.] was still completely nude *** [defendant] had his clothes, white shirt and white pants, on.” She saw him move up and down approximately six times. The bodies of both defendant and C.R. were straight. When defendant finally realized that Rippberger was in the room, he climbed off C.R.

Rippberger “saw his front when he stood up outside of the bed. He was facing me.” Defendant was fully clothed at that time. His penis was not exposed. Rippberger never saw his hands go towards his zipper or pull up his pants. Rippberger and defendant then looked at each other for a few seconds without speaking until Rippberger left the room and reported the incident.

Dr. Bruce Harris testified he is a medical doctor, board certified in emergency medicine. On January 23, 1989, Dr. Harris saw C.R. in the Lake Forest Hospital emergency room at approximately 4:49 p.m. He had been contacted by C.R.’s internist as to an alleged sexual assault. Dr. Harris, therefore, conducted an examination of C.R. for injury and also to determine if there was any evidence of sexual assault. He used a sexual assault kit, taking various oral, vaginal and rectal swabs and smears. These swabs and smears were then placed in the kit which was, in turn, marked by Nurse Cathy Orr for purposes of later laboratory examination.

Dr. Harris testified that C.R. had the diagnosis of locked-in syndrome secondary to hypoxic encephalopathy, a condition of brain damage which occurs when the brain does not receive oxygen. Dr. Harris was unable to communicate with C.R. in any way during his examination of her. Dr. Harris further noted that C.R.’s physical condition included severe contraction of her legs and arms. For him to examine fully the vaginal, anal and rectal areas, it was, therefore, necessary that two nurses pry her legs apart. Dr. Harris’ physical examination of C.R.’s body revealed no signs of trauma or injury. He saw no signs of redness or irritation either of the vagina or rectum or anus.

Dr. Harris had examined approximately 100 alleged sexual assault victims during his career as an emergency room physician. He testified that sperm or semen can seep through clothing because the latter is porous. Dr. Harris also testified that sperm or semen can seep into the rectum without penetration or contact between the sex organ of the male and the anus of the female. If semen or sperm were found in C.R.’s rectum, Dr. Harris would not have been able to say whether it was caused by any type of direct contact with the penis and anus, as opposed to it seeping through defendant’s clothing without any direct or indirect contact.

Detective Lawrence Oliver testified that he had served with the Lake County sheriff’s office for 11 years. On January 23, 1989, he was assigned to investigate the subject incident. He viewed C.R. as she lay in her bed. Detective Oliver received no response from C.R. when he attempted to communicate with her. Detective Oliver spoke to Judy Rippberger, who told him that she observed defendant “dry humping” C.R. After the investigation at Brentwood Nursing Home was concluded, defendant was transported to the Lake County sheriff’s office.

Detective Oliver advised defendant of his Miranda rights. Defendant indicated that he wished to make a voluntary statement after being apprised of these rights. In his statement to Oliver, defendant admitted lying on top of C.R., but he stated that “he kept his dick in his pants.” He further stated, “I didn’t undo my pants.”

Defendant maintained that at no time did he mean to penetrate C.R. or have intercourse with her. He merely wanted to satisfy himself. Defendant’s written statement was consistent with his verbal statements. Defendant’s nurses’ whites were not taken for analysis.

Dr. Rohit Shah is a medical doctor, board certified in internal medicine and oncology. He has been the medical director of Brentwood Nursing Home since 1976 and first began to treat C.R. in 1986. Dr. Shah testified that C.R.’s diagnosis was diffuse cerebral dysfunction as a result of a boating accident in 1982. She was completely paralyzed in all her extremities and was unable to communicate or respond to any stimuli or questions. Dr. Shah had never been able to communicate with C.R. in any way. Also, C.R. was unable to move herself; she had to be moved by others for any examination. Dr. Shah saw C.R. approximately once every two months but did not see her on January 23, 1989. Regarding her paralysis, Dr. Shah testified that C.R. suffered from “severe contractures of her legs.” He believed, based upon a reasonable degree of medical certainty, that C.R. did not know that defendant was on top of her on January 23,1989.

William H. Wilson testified that he is a forensic scientist employed at the Northern Illinois Crime Laboratory since April 1988. Wilson testified that the bodily samples obtained at the Lake Forest Hospital emergency room from C.R. on January 23, 1989, were submitted to his laboratory on January 25, 1989, and tested by him on February 16, 1989. From his review of the various swabs, smears and slides, almost all were negative including the rectal smear prepared by Dr. Harris. The one exception was that Wilson testified he prepared a slide from the second rectal swab. On this slide, he observed five sperm heads. He saw no tails. Wilson conceded that bacteria could have deteriorated the rectal slide he had prepared.

Wilson agreed that another scientist, observing the subject swab smear, might not have seen sperm heads. Wilson further agreed that Forensic Science Handbook by Saferstein is authoritative. Within that handbook, there is a chapter entitled, “The Identification and Individualization of Semen Stains” by F. Samuel Biecatel, Ph.D., Forensic Science Research and Training Center, Federal Bureau of Investigation. In that chapter, Biecatel wrote, “Semen cannot be identified on the basis of spermatozoa fragments.” Wilson disagreed with Biecatel’s statement.

Patricia Barrows, a registered nurse and the geriatric clinician for the Brentwood Nursing Home, testified on behalf of defendant. As geriatric clinician, she is asked to examine patients physically when there is a change and/or indication of change in a patient’s condition. At approximately 10:05 a.m. on January 23, 1989, she examined C.R. in the latter’s room. With the assistance of a female nurse’s aid, she visually examined C.R., who did not appear to be upset. Barrows found no trauma or redness or irritation to C.R.’s genital area, buttocks, anus or rectum. On prior occasions, she had examined C.R.’s rectum. Barrows conducted a rectal examination and found no visual or olfactory evidence of semen or sperm. There was no mucous discharge present. The sphincter muscle was further checked and found to be tight, which indicated no penetration. Barrows also examined the bed linen and found nothing.

Detective Robert Randall testified that on January 23, 1989, Detective Oliver and he questioned the defendant, who admitted “that he was mounted on top of [C.R.] while she was laying [sic] on her chest and that he was rubbing his penis through his trousers on her buttocks.”

Defendant’s wife, Asha Patel, identified three pieces of clothing worn by defendant on January 23, 1989, namely, his white shirt, white long pants and underpants. Mrs. Patel testified that after her husband was released from jail, he was still wearing this outfit. She washed the articles of clothing because they were dirty. Mrs. Patel did not notice any stains on them.

Defendant testified that he had been in the United States since 1985 and worked at the Brentwood Nursing Home for the last 21k years until January 23, 1989. On January 23, 1989, he worked the 7 a.m. to 3 p.m. shift. He was assigned to rooms 104 through 107, which had eight patients, including C.R., who was the only nonambulatory patient. Early in the shift, he helped the other seven patients “get up” for breakfast. At this time, he changed C.R.’s diaper. Following breakfast, defendant took a brief break and then began C.R.’s bed bath. Judy Rippberger twice came into room 107. After Rippberger left the second time, defendant found himself aroused by C.R.’s nakedness. He got on top of C.R. and started to rub against her buttocks.

Defendant was fully clothed, wearing his nurses’ whites as he rubbed against C.R. His pants always remained on and up to his waist. He never unclasped and/or unbuttoned his outer pants, nor did he ever unzip the pants’ zipper. He never exposed his penis. Defendant estimated that he was on top of C.R. about five minutes. He did not immediately see Judy Rippberger when she entered the room a third time. When he finally saw her, “he got down and looked at her.” Defendant then moved a few steps towards Rippberger, until he was approximately seven to eight feet from her. As they both stood and looked at each other, neither said anything. Defendant had ejaculated while rubbing against C.R. His pants and underwear were wet in the crotch area. After Rippberger left the room, he cleaned up C.R., including “her back side.”

Dr. John Medved testified that he is a medical doctor, board certified in family medicine. He had extensive experience in examination of female genital and anal areas. Dr. Medved stated that, after an incident in which the anus was subject to rubbing, he would expect redness to be observed in an examination held within 20 minutes of the episode. Dr. Medved .further expected that in an examination even seven to eight hours later, an experienced physician could still determine signs of redness, irritation or trauma to the anus if there had been direct rubbing. Dr. Medved further stated that the small number of spermatozoa seen in the slide prepared by William Wilson would indicate that it was more likely that the presence of same was due to seepage through defendant’s clothing, rather than to penetration.

In finding the defendant guilty of aggravated criminal sexual abuse, the trial court stated in pertinent part:

“Specifically, so the record is clear, the sexual conduct involved for the purpose of criminal sexual abuse language was the rubbing of the defendant and his penis against the victim including her buttocks and anus through the clothing for the purpose of defendant’s sexual gratification and arousal.”

Further, the trial court found that under section 12 — 16(a)(4) of the Criminal Code of 1961 (Code), defendant was guilty of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(a)(4).) Aggravated criminal sexual abuse is based upon an act of sexual conduct which is defined thusly:

“ ‘Sexual conduct’ means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification ***.” Ill. Rev. Stat. 1987, ch. 38, par. 12—12(e).

In ascertaining whether defendant’s conviction can stand, we must, in interpreting the relevant statutory provisions, give the words their ordinary and popularly understood meanings. Maloney v. Bower (1986), 113 Ill. 2d 473.

Relating the evidence before us to the elements of sexual conduct as defined above, we initially find there is no doubt that defendant’s actions were knowing and intentional and for purposes of his sexual gratification. He admitted as much. Further, his actions clearly constituted a touching of C.R. by his sex organs through his clothing. The evidence is clear that C.R. lay naked on her stomach and that the defendant, clothed in his white uniform, lay on her back on his stomach. He admitted “dry humping” her for approximately five minutes, during which time he had an ejaculation. A nurse, Patricia Barrows, examined C.R. approximately 20 minutes after the incident. She found no evidence of trauma, irritation or redness at or around C.R.’s anus, and, further, she found no evidence of semen or sperm.

Dr. Bruce Harris examined C.R. approximately seven hours after the incident; his examination revealed no signs of redness, trauma or irritation to C.R.’s vagina, rectum or anus. He further stated that if sperm were found in C.R.’s rectum, he had been unable to say whether its presence was due to direct contact to .C.R. rather than seepage through defendant’s clothing. William Wilson, a forensic scientist, testified that body samples were obtained from C.R.’s rectum at the Lake Forest Hospital emergency room and he found five sperm heads on the slide that was prepared from the second rectal swab made from C.R. The evidence was conflicting as to whether semen could be identified on the basis of spermatozoa fragments. Dr. John Medved opined that the presence of so few sperm indicated that these entered C.R.’s rectum after seeping through defendant’s clothing. The defendant admitted rubbing his clothed genitals against C.R.’s exposed buttocks but denied he made any contact, direct or otherwise, with C.R.’s anus prior to or after ejaculation.

The State argues that there is no doubt that defendant rubbed his penis through his clothing against the victim’s buttocks and that this involvement of the penis constituted sexual conduct as defined in section 12 — 12(e) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12—12(e)), as hereinbefore set forth and that, therefore, an act of sexual conduct as defined in the statute was performed. On the other hand, the defendant’s brief states “to find the defendant guilty of aggravated criminal sexual assault, there must be shown an intentional or knowing touching of [G.R.’s] anus.”

In People v. Nibbio (1989), 180 Ill. App. 3d 513, 518, the defendant, who was 17 years of age, was charged with committing an act of sexual conduct with a victim in that he touched his sex organ to the back of the victim for the purpose of sexual gratification. In that cause, the court made the following interpretation in reference to the argument made by the defendant in this case:

“Section 12 — 12(e) refers expressly to the ‘touching’ by either ‘the victim or the accused’ of the sex organs, anus or breast of either ‘the victim or the accused.’ Hence, the defendant’s argument that to have violated the statute he must have touched the sex organs, anus or breast of a victim who has attained the age of 13 or more is not well taken.” (Emphasis added.) 180 Ill. App. 3d at 518.

Also, in People v. Finley (1988), 178 Ill. App. 3d 301, 307, the court further observed that “sexual conduct” as defined in section 12 — 12(e) of the Code did provide that such conduct could be “through clothing.” Accordingly, on the basis of the evidence presented, the trial court properly found the defendant guilty of aggravated criminal sexual abuse.

Defendant also claims that the trial court erred in determining that aggravated criminal sexual abuse is a lesser-included offense of aggravated criminal sexual assault. In the case of People v. Finley, the court observed:

“We believe aggravated criminal sexual abuse may be established by the same or less than all of the facts than that which is required to establish aggravated criminal sexual assault. In People v. Creamer, the court examined the criminal sexual abuse statute and the criminal sexual assault statute and determined that the difference between a charge under the latter and a charge under the former ‘lies solely in the fact that the assault requires proof of sexual penetration.’ ” (Finley, 178 Ill. App. 3d at 306.)

At another point in the opinion, it is also stated as follows:

“We believe, however, that the Creamer court’s analysis is correct; proof of the same or less facts than that which is required to establish criminal sexual assault can establish criminal sexual abuse.” (178 Ill. App. 3d at 306.)

Here, the defendant cited People v. Burmeister (1986), 147 Ill. App. 3d 218, for the purpose of showing that aggravated criminal sexual abuse is not a lesser-included offense of aggravated criminal assault; however, the Creamer court refused to follow that holding; therefore, according to Creamer we hold that aggravated criminal sexual abuse is a lesser-included offense of aggravated criminal sexual assault.

Defendant also claims that the trial court erred in finding defendant guilty at the close of all the evidence; however, the facts as set forth above support the court’s finding of guilty of aggravated criminal sexual abuse.

The State also points out that the defendant presented evidence following the denial of his motion for a directed verdict and did not renew his motion at the close of this cause. The defendant, at the close of the case, argued that the evidence was insufficient to prove the offense charged, and the trial court agreed but reduced the charge to one it believed to be a lesser-included offense, namely, aggravated criminal sexual abuse.

Lastly, the defendant contends that the statutory scheme of sex offenses provided by the provisions referring to criminal sexual assault and criminal sexual abuse lack a “coherent pattern.” However, our supreme court in People v. Terrell (1989), 132 Ill. 2d 178, 214, addressed this issue. As shown by the facts of this case, the lesser intrusive behavior comprises the lesser offense and does not violate due process. See also People v. Burmeister (1986), 147 Ill. App. 3d 218.

On the basis of the foregoing, we affirm the judgment of the circuit court.

Affirmed.

INGLIS and NICKELS, JJ., concur.


author: JUSTICE DUNN

text:
    GRAUE MILL COUNTRY CONDOMINIUM ASSOCIATION NO. 1 et al., Plaintiffs-Appellants, v. GARY-WHEATON BANK, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—90—0639
    Opinion filed May 8, 1991.
    David J. Freeman, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellants.
    Leigh R. Pietsch, of Pietsch, Cuchna, Popejoy & Whelan, of Wheaton, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, a condominium association and a homeowners association, appeal from a directed finding in favor of defendants, Thomas and Roseann Glynn, and Gary-Wheaton Bank as trustee, in a forcible entry and detainer action. The issue on appeal is whether plaintiffs’ failure to prove service of the requisite 30-day notice upon defendants required the trial court to dismiss plaintiffs’ claim for $3,624 in'unpaid maintenance assessments. We conclude that it' did not and therefore reverse the trial court.

The Glynns are beneficial owners of a land trust which holds title to a condominium unit. Gary-Wheaton Bank is the land trustee. On January 28, 1990, plaintiffs filed suit against these defendants for possession of the unit pursuant to the forcible entry and detainer provisions of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 9—101 et seq.) and recovery of $3,624 in unpaid maintenance assessments, plus attorney fees. Under section 9 — 104.1 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 9—104.1), condominium owners must receive a written demand and notice of the amount allegedly due at least 30 days before a forcible entry and detainer action is filed. At trial, plaintiffs were unable to prove that such a notice had been properly served upon defendants. The trial court therefore entered a directed finding in favor of defendants.

Plaintiffs subsequently sought partial reconsideration of the directed finding oh the basis that, even if the requisite 30-day notice was not properly served, this would only bar their claim for possession of the unit, not the claim for the unpaid assessments. The trial judge denied the motion and plaintiffs now appeal. Although defendants have filed no brief on appeal, we will consider the merits of the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

The circumstances of this case are similar to those of Sianis v. Kettler (1988), 168 Ill. App. 3d 1071. In Sianis, a landlord sued a tenant for possession of the leased premises pursuant to the forcible entry and detainer provisions of the Code and also sought a judgment for overdue rent. The court held that plaintiff’s failure to comply with the five-day written demand notice requirement set forth in section 9—209 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 9—209) did not affect the trial court’s authority to consider plaintiff’s claim for unpaid rent. (Sianis, 168 Ill. App. 3d at 1074.) In so holding, the court noted that section 9—209 authorizes joinder of claims for rent in forcible entry and detainer actions. It then stated as follows:

“The legislature intended to promote judicial economy by authorizing joinder. It did not intend to burden an action for rent with a notice requirement, which would not be necessary if the action was maintained separately. An action for rent is founded on an express or implied contract. [Citation.] It should not be burdened by a statutory notice that is required in an action for possession.” (Emphasis in original.) 168 Ill. App. 3d at 1074.

The same reasoning is applicable in the case at bar. While this case involves a claim for condominium assessments rather than rent, section 9 — 111 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 111) allows joinder of a claim for such expenses in a forcible entry and detainer action involving condominium- property. Such a claim involves an implied or express contract just as a claim for rent does. We can perceive no reason why the Sianis rationale should not apply to these circumstances since it does not appear that the legislature intended to burden an action for condominium assessments with a notice requirement any more than it intended to burden an action for rent with such a requirement. The trial court therefore erred by refusing to consider plaintiffs’ claim for the unpaid condominium assessments and attorney fees.

Accordingly, we reverse the judgment of the trial court entering a directed finding in favor of defendants insofar as it pertains to plaintiffs’ claim for unpaid condominium assessments and attorney fees. We remand this cause with directions to proceed as if the finding had not been made in regard to the unpaid condominium assessments and attorney fees in order to allow the trial court to decide this issue on the totality of the evidence presented.

Reversed and remanded.

REINHARD, P.J., and NICKELS, J., concur.