author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. MITCHELL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2035
    Opinion filed June 12, 1991.

      Joseph C. Polito, of Joliet, for appellant.

      John O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant James R. Mitchell was found guilty of two counts of aggravated criminal sexual assault and sentenced to serve two concurrent 10-year terms in the Illinois Department of Corrections. On appeal, defendant argues that (1) the trial court erred in ruling that R.J.M. was competent to testify; (2) the trial court erred in allowing several State witnesses to testify as to the specific details of the victims’ statements; and (3) the State failed to prove him guilty beyond a reasonable doubt. We affirm in part and reverse in part.

Prior to trial, the court held a competency hearing for R.J.M. J.S.M., who was three years old at the time of the alleged assault and four at the time of trial, as well as J.R.M., who was 16 months old on the date of the incident and two at the time of trial, were not tendered by the State as competent to testify in this matter. During the competency hearing, R.J.M. testified that he was five years of age and lived in a brown house on Chicago Road with Keith, his mom and younger brother, two-year-old J.R.M. R.J.M. also testified that he had a sister named J.S.M. When the judge asked R.J.M., “Do you promise *** to tell the truth, and nothing but the truth, so help you God?” he responded, “Yeah, I do.”

When asked what it means to tell the truth, R.J.M. indicated that it meant not to tell a lie. R.J.M. testified that the assistant State’s Attorney was wearing a brown jacket and that it would be a lie to call it red. R.J.M. further demonstrated his understanding of the difference between the truth and a lie when asked about the color of a book. R.J.M. testified that the fact that the book was green was a truth and it would be a lie to say that it was red, yellow or pink. R.J.M. further testified that although he had met with the assistant State’s Attorney on numerous occasions, he was never told by the prosecutor or his mother to say certain things. R.J.M. testified that both his mother and the assistant State’s Attorney told him to tell the judge the truth. R.J.M. counted to 19 and recited his alphabet through the letter p. R.J.M. also demonstrated his understanding of shapes by drawing a square, triangle, rectangle and a circle. The prosecutor questioned R.J.M. regarding the events of the day of the alleged assault and R.J.M. demonstrated that he recalled the events leading up to the assault. At the conclusion of the hearing, the trial court found R.J.M. competent to testify.

At trial, the State presented five witnesses: R.J.M., his mother, Alice Mitchell, Officer Roe, Dr. Dekker and Detective Smits. R.J.M. testified in chambers that approximately IV2 half years prior to trial, his grandfather, whom he identified in court, took him, his brother, sister and grandmother in a van to visit his grandparents’ home. He testified that when they arrived at the house, his grandparents served them Oreo cookies while they watched television in the living room. R.J.M. testified that his grandmother took J.S.M. to the bathroom to give her a bath while he and J.R.M. remained in the living room watching television.

R.J.M. testified that he did not see defendant do anything to J.S.M. or J.R.M. on that day. When R.J.M. was initially asked whether defendant did anything to him on that day, he responded “no.” He further testified that he did not know what the term “dick” meant and that he had never used that term before. However, when the prosecutor showed him an anatomically correct male doll, R.J.M. identified the doll’s penis as a “pee pee.” R.J.M. testified that he did not see defendant’s “pee pee” on that date. When asked by the prosecutor if defendant put his “pee pee” in his “butt,” R.J.M. answered, “yes.” R.J.M. testified that his grandfather stuck his “pee pee” in his “butt” before he went to “go potty.” He further testified that J.R.M. was in the living room with him when it happened while J.S.M. and his grandmother were in the bathroom. R.J.M. identified the penis and buttocks on the anatomically correct male doll. He also demonstrated through the use of two dolls an act of anal copulation which he testified was a simulation of what his grandfather did to him on the day of his visit. He testified that although it hurt, he did not scream. R.J.M. further testified that after the act, they had Oreo cookies again and defendant left the house and went to the gas station.

R.J.M. further testified that soon thereafter, his grandfather took them back home in the van. He stated that when they reached home, they banged on the front door because they were hungry. R.J.M. testified that when he got in the house, he did not immediately tell his mother what happened, but he did tell her that he hated his grandfather. When asked why he said that, R.J.M. responded, “because he stuck his pee pee in us.” R.J.M. did not recall telling any police officers what his grandfather did to him. He testified that police officers wore uniforms and carried guns and that he did not recall talking to anyone dressed like that.

Officer John Roe of the Dolton police department also testified at trial. Officer Roe stated that on December 15, 1986, he responded to a call from the home of Alice Mitchell. Roe talked with Ms. Mitchell and her children R.J.M. and J.S.M. Roe stated that J.S.M. was unresponsive to his questions, but that R.J.M. told him that his grandfather put his “dick” in J.S.M.’s “pee pee” while she was undressed. When Roe asked J.S.M. if anything had been inserted into her, she began to cry. Both children told Officer Roe that their grandparents took pictures of them. R.J.M. denied that his grandfather had assaulted him. When Roe determined that the alleged event occurred in South Holland, he advised his department’s detective division, which in turn notified the South Holland police department.

Detective Elwood Smits of the South Holland police department testified that on December 15, 1986, pursuant to a telephone call from the Dolton police department, he contacted Alice Mitchell. Smits arranged to meet with Ms. Mitchell that day. Alice Mitchell came to the police department and related to him that her daughter, J.S.M., had been sexually assaulted by her grandfather. Detective Smits asked Alice Mitchell to bring her children into the station for questioning. Ms. Mitchell returned with R.J.M. and J.S.M. approximately one hour later. Detective Smits testified that he was unable to obtain statements from either of the children, so he contacted the Illinois State Police for assistance. Smits was advised by the State Police to contact Mount Sinai Hospital for assistance in interviewing the children. As a result, R.J.M., J.S.M., and J.R.M. were admitted to Mount Sinai Hospital’s pediatric ecology unit on December 22. Smits further testified that on December 29, he met with Alice Mitchell, R.J.M., J.S.M. and an assistant State’s Attorney. Smits testified without objection that through the use of anatomically correct dolls held by the assistant State’s Attorney, R.J.M. and J.S.M. both stated that their grandfather put his penis in their anuses.

Detective Smits also interviewed defendant and his wife, Mona Mitchell, at the police station. Both defendant and his wife gave Smits a full statement of their account of the events of the day of the alleged sexual assaults. In addition, defendant gave Smits two undeveloped rolls of film which were taken on the day of his grandchildren’s visit to his home.

Dr. Anthony Dekker, a staff physician at Mount Sinai and Chicago Osteopathic Hospitals, testified as an expert in the field of pediatrics and child sexual abuse. Dr. Dekker testified that he served as attending physician in charge of a medical team consisting of a physician, psychologist, child-life specialist, social worker, nurse, and child-care worker on Mount Sinai Hospital’s pediatric ecology unit. Dr. Dekker further testified that R.J.M., J.S.M., and J.R.M. were admitted to his unit on December 22, 1986, for a five-day assessment. During their hospital stay they underwent a preliminary nursing evaluation, a comprehensive medical assessment, testing for sexually transmitted diseases, a developmental assessment, social service assessment and a sex abuse interview.

The children were evaluated by a team of six health care professionals. Dr. Dekker personally conducted the physical examinations of R.J.M. and J.R.M., while Dr. Sharon Ahart performed the physical examination of J.S.M. Dr. Dekker testified that his rectal examination of R.J.M. revealed that he had a loose sphincter muscle. Dr. Dekker explained that the sphincter muscle was like a valve that prevents the stool from spilling out of the rectum. He further testified that in his opinion the loose tone was caused by the insertion of a rigid object into the rectum. Dr. Dekker testified that the sphincter muscle should be snug in the relaxed state. The doctor testified without objection that R.J.M. told him that his grandpa put his “dick” in his “butt.” Dr. Dekker expressed the opinion that, on the basis of his total social, psychological and physical assessment, R.J.M. had been anally sexually abused.

Dr. Dekker performed a portion of the physical examination of J.S.M., while Dr. Ahart performed the vaginal and rectal examination of J.S.M. Dr. Dekker testified without objection that J.S.M. told him that her grandfather inserted his penis in her rectal area. Dr. Dekker also testified that Dr. Ahart’s examination of J.S.M. revealed a rectal opening of 0.5 centimeters, which was indicative of poor rectal tone. Dr. Dekker expressed the opinion that J.S.M. had experienced sexual trauma by rectal penetration with a rigid object.

Dr. Dekker also testified that he examined J.R.M. and that his digital examination revealed loose rectal tone. The doctor’s diagnosis of J.R.M. revealed that he had experienced sexual trauma to the rectum consistent with sexual abuse.

Dr. Dekker also examined the children for neglect in June 1987 when their mother was admitted to the psychiatric unit of Chicago Osteopathic Hospital. Dr. Dekker testified that his examination did not reveal any evidence of physical or sexual abuse and that he did not perform a rectal examination at that time.

The children’s mother, Alice Mitchell, testified that she allowed her three children to visit their paternal grandparents’ home on December 13, 1986. Defendant and his wife, Mona Mitchell, picked the children up from their home at approximately 12 noon. According to Alice, when the children returned home at approximately 4 p.m., they were upset and crying. She testified that when asked, the children told her that they hated their grandparents. Later that evening, when she asked R.J.M. to demonstrate what had happened at the defendant’s home, he stood behind J.S.M. and moved his hips in a backward and forward motion.

The children continued to show signs of disturbance such as disobedience and lack of appetite over the next two days. On December 15, the children finally told her why they were upset. On that date, in response to her mother’s inquiry as to what was wrong, J.S.M. responded, “grandpa hurt my pee pee.” Alice testified that she asked R.J.M. if J.S.M.’s statement was true and that he said yes. Thereafter, Ms. Mitchell called the Dolton police department. Approximately five minutes later, Officer Roe came to her home in response to the call. She told Officer Roe what the children had told her and he interviewed them. Officer Roe advised Ms. Mitchell to take the children to a hospital. As soon as the officer left, Alice took the children to the emergency room of Ingalls Memorial Hospital, where J.S.M. was examined by Dr. Adams.

That evening, Ms. Mitchell went to the South Holland police department, where she spoke to Detective Smits regarding her daughter’s complaint of sexual abuse. Later, Ms. Mitchell brought R.J.M. and J.S.M. to the police department for an interview. Smits suggested that the children be admitted to Mount Sinai Hospital for an in-patient evaluation. Ms. Mitchell stayed with her children during their hospital admission. On December 29, 1986, Alice Mitchell was present when Smits and an assistant State’s Attorney interviewed the children through the use of anatomically correct dolls.

Alice Mitchell testified that her daughter, J.S.M., told her that Jerry Caldwell, her former live-in boyfriend, also sexually assaulted her. Ms. Mitchell further testified that she told a Department of Children and Family Services caseworker about her daughter’s complaint. Ms. Mitchell testified that on one occasion, while Detective Smits was at the door, Caldwell held the children in the laundry room and threatened to kill them. Alice stated that she told Smits about this episode, but that he merely entered her home to have her sign a release form and departed. She also admitted that she wanted Caldwell to move out of her home. Ms. Mitchell testified that Gary Kruc, her divorce attorney, offered her $21,000 on behalf of the defendant to drop the criminal case. Alice further testified that she had received in-patient psychiatric treatment on seven occasions between 1984 and 1987.

The defense presented nine witnesses: defendant, Dr. Adams, Dr. Cemiak, Joseph Branit, Ronald Stein, Patricia Patt, Michael Jones, Gary Kmc and Mona Mitchell. Defendant testified that on December 13, 1986, he and his wife picked up his three grandchildren from their mother’s home and drove them to his home in South Holland. He further testified that when they arrived, the children began to play in the living room while he went to get gasoline for the car. Defendant testified that when he returned, he took pictures of the children. He also stated that the children had cookies and milk and that shortly thereafter, he took them home. He denied sexually assaulting any of the children.

Dr. Adams testified that he was a physician assigned to the emergency department of Ingalls Memorial Hospital. He testified that on December 15, 1986, he performed a vaginal examination of J.S.M. and in his opinion there was no evidence of sexual abuse. Dr. Adams did not perform a rectal examination on J.S.M. On cross-examination, Dr. Adams admitted that he was not a specialist in the area of child sexual abuse and that he had only diagnosed one case of child sexual abuse during his medical career.

Dr. Cemiak, a gastroenterologist, testified as an expert in the areas of rectal, colon, sphincter muscle and anal medical problems. Dr. Cemiak testified that poor rectal tone alone does not signify an abnormality. He further stated that, after reviewing Dr. Dekker’s medical records, he was of the opinion that the records did not support the finding that a foreign object penetrated the rectums of R.J.M., J.S.M. or J.R.M.

Mona Mitchell testified that on December 13, 1986, she and defendant picked the children up from their home at about 12 p.m. and brought them to her South Holland residence for a visit. She stated that defendant ran errands while she played with the children. During their visit, she served the children cookies and milk. Mrs. Mitchell testified that she took J.S.M. to the bathroom on two occasions. She further testified that she did not see her husband abuse the children. They returned the children to their home at approximately 4 p.m.

Joseph Branit, Ronald Stein, Patricia Patt, and Michael Jones all testified to defendant’s good reputation for truth and veracity in the community. Gary Kmc testified for the purposes of impeachment that, although he handled Alice Mitchell’s divorce, contrary to her testimony, he never told her that someone had offered her $21,000 to drop the present case.

Following closing argument, the trial court found defendant guilty of the aggravated criminal sexual assault of R.J.M. and J.S.M. Defendant was found not guilty of the aggravated criminal sexual assault of J.R.M. The court noted in its finding that due to the numerous inconsistencies in Alice Mitchell’s testimony, in weighing the evidence, it gave no weight to her testimony but rather, solely considered her role as the initiator of the investigation. This appeal followed.

Defendant first argues that the trial court erred in ruling that R.J.M. was competent to testify. We disagree.

The criteria for determining whether a child is competent to testify in court are whether the witness is sufficiently mature (1) to receive correct impressions by his senses; (2) to recollect these impressions; (3) to understand questions and narrate answers intelligently; and (4) to appreciate the moral duty to tell the truth. (People v. Barfield (1989), 187 Ill. App. 3d 257, 261, 543 N.E.2d 157, 158-59.) Further, it is not necessary for the child to give perfect answers to questions asked during the competency determination or at trial to be deemed a competent witness. (Barfield, 187 Ill. App. 3d at 261.) Once the court has determined that the minor is competent to testify, any confusion or contradiction in later testimony only goes to credibility as a witness, not competency to testify. People v. McNichols (1986), 139 Ill. App. 3d 947, 952, 487 N.E.2d 1252, 1257.

Defendant argues that R.J.M. made many illogical and unresponsive statements in response to simple questions and that therefore he was incompetent to testify. While R.J.M. did make some unresponsive remarks to questions posed, he also demonstrated the typical impatience of a five-year-old by asking when the questioning was going to be over, stating that he was hungry, asking when the restaurant would be open and asking at one point to be excused so that he could go to the bathroom. However, despite these digressions during questioning, R.J.M. demonstrated in a variety of ways that he knew the difference between the truth and a lie. R.J.M. testified that to tell the truth meant not to tell a lie. In addition, R.J.M. demonstrated the ability to receive correct impressions from his senses and recall these impressions when he described the color of a book and the prosecutor’s coat jacket as well as when he counted the number of pencils in the prosecutor’s pocket. In addition, R.J.M. recited his alphabet and drew various geometric shapes. In sum, R.J.M. adequately demonstrated that he was competent to testify. We therefore conclude that the trial court did not err in ruling that R.J.M. was competent to testify in this matter.

Defendant next argues that the trial court erred in allowing several State witnesses to testify as to the specific details of the victims’ statements. Defendant argues that the admission of testimony about what the children told Dr. Dekker, Officer Roe and Detective Smits was reversible error since, prior to its revision, section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) did not permit testimony concerning the details of a child’s complaint of sexual abuse.

Prior to the 1988 revision, chapter 38, section 115 — 10, provided:

“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 that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.

This prior provision of the Code allowed hearsay testimony to be admitted when a child complained of a sexual act. The intent of the legislature in adopting this provision was to allow testimony which corroborated the fact that a child under 13 years of age made a complaint of sexual abuse to another person. The statute was interpreted to limit testimony to the fact that a complaint was made without allowing a detailed account of the complaint or the identity of the alleged assailant. (People v. Server (1986), 148 Ill. App. 3d 888, 900, 499 N.E.2d 1019, 1027.) However, while a specific recitation of the complaint was not admissible under this form of the statute, testimony must necessarily include some detail to effectively corroborate the fact that a complaint was made. Server, 148 Ill. App. 3d at 900.

Moreover, the admission of unnecessary or impermissible detail, such as the identification of the defendant, will be deemed to be harmless when substantially corroborated by the testimony of the child victim or any other pertinent evidence and the child victim is present in court and available for cross-examination. (Server, 148 Ill. App. 3d at 900; People v. Deal (1989), 185 Ill. App. 3d 332, 339, 541 N.E.2d 695, 700.) The admission of testimony regarding the identity of the offender cannot be deemed prejudicial where identity is not at issue in the case. (Server, 148 Ill. App. 3d at 900.) However, the application of the harmless error rule has been limited to cases where a strong possibility of jury prejudice does not exist. (People v. Sexton (1987), 162 Ill. App. 3d 607, 617, 515 N.E.2d 1359, 1366-67.) In addition, both a trial objection and a written post-trial motion raising the issue are required to secure review of alleged errors that could have been raised at trial. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30.

In the present case, after defendant was charged with commission of the offenses, but prior to trial, the legislature amended section 115 — 10 of the Code. The new amendment effective January 1, 1988, allows for the admission of corroborative complaint testimony which includes testimony regarding the specific details of any act “which is an element of an offense” charged. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.) In the present case, the court ruled that because the amendment of section 115 — 10 resulted in a substantive change in the law, it was inapplicable to the present case. However, the amendment to section 115 — 10 has been construed as procedural rather than substantive in nature and it has been held to apply to the prosecution of sexual assault cases where the alleged sexual offenses against a child occurred prior to the effective date of the amendment, but trial occurred after that date. See People v. Hart (1991), 214 Ill. App. 3d 512, 519; People v. Priola (1990), 203 Ill. App. 3d 401, 417, 561 N.E.2d 82, 94; People v. Morton (1989), 188 Ill. App. 3d 95, 102, 543 N.E.2d 1366, 1370.

Although the trial court incorrectly ruled that amended section 115 — 10 did not apply to the present case, the amended statute is relevant to the present case in that it furthers the prior judicial policy of finding admission of detailed corroborative complaint testimony harmless where there is other reliable evidence of guilt and the victim testifies and is subject to cross-examination.

Here, R.J.M. testified at trial and was subject to cross-examination. His testimony was corroborated by the testimony of Dr. Dekker which indicated that, in his opinion, R.J.M. had been anally sexually abused. The testimony of Detective Smits and Officer Roe which also corroborated R.J.M.’s complaint testimony was cumulative in nature. Further, the testimony of all three witnesses was admitted without objection and defense counsel cross-examined each of the witnesses. Defendant argues that because the court placed significant weight upon the corroborative testimony of Dr. Dekker, Detective Smits and Officer Roe, the admission of that evidence prejudiced defendant. We disagree.

Although the admission of detail regarding defendant’s assault of R.J.M. was erroneous under the prior version of section 115— 10 of the Code, defendant waived any error by failing to specifically object at trial or in his post-trial motion. (Enoch, 122 Ill. 2d at 186.) Defendant concedes that this alleged error was not preserved for review. Moreover, any alleged error was harmless where the victim testified at trial, was subject to cross-examination and the victim’s testimony was corroborated by medical evidence which confirmed sexual abuse. In addition, testimony regarding defendant’s identity did not prejudice defendant where his identity was not at issue in this case. We therefore conclude that the defendant was not prejudiced by admission of the testimony of Dr. Dekker, Detective Smits or Officer Roe regarding the sexual assault of R.J.M. where there was other reliable information in evidence at trial.

Defendant was also found guilty of the aggravated criminal sexual assault of J.S.M. At trial, R.J.M. testified that he did not observe defendant do anything to J.S.M. In addition, J.S.M. did not testify at trial. The only evidence introduced in support of the charge of the aggravated criminal sexual assault of J.S.M. was the testimony of Dr. Dekker and Detective Smits. Dr. Dekker testified that J.S.M. told him that defendant had put his penis in her rectal area. In addition, Dr. Dekker testified that based on his colleague Dr. Ahart’s rectal examination of J.S.M., as well as his interview with her, it was his opinion that J.S.M. had experienced sexual trauma by rectal penetration with a rigid object. Detective Smits testified that during an interview with J.S.M., R.J.M., an assistant State’s Attorney and the children’s mother, J.S.M. demonstrated through the use of anatomically correct dolls that defendant sexually assaulted her.

In this instance, the admission of the hearsay testimony of Dr. Dekker and Detective Smits was not harmless where the victim did not testify and was therefore unavailable for cross-examination. In addition, since no other witness testified that he observed defendant sexually assault J.S.M., the court had no evidence other than the hearsay testimony of Dr. Dekker and Detective Smits upon which to base its finding. Under these circumstances, we conclude that, under the prior provisions of the Code relating to corroborative complaint testimony in a child sexual abuse case, the trial court erred in finding defendant guilty of the aggravated criminal sexual assault of J.S.M. on the basis of hearsay testimony alone. While the testimony of Dr. Dekker and Detective Smits may have been properly admitted as substantive evidence of defendant’s guilt under amended section 115 — 10, because the trial court found that section to be inapplicable, the appropriate safeguards to ensure reliability of the testimony were not used and therefore the testimony was improperly allowed. Defendant’s conviction for the aggravated criminal sexual assault of J.S.M. is therefore reversed. Compare Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10, and Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.

Finally, defendant argues that the State failed to prove him guilty beyond a reasonable doubt. Due to our reversal of defendant’s conviction for the sexual assault of J.S.M., we will only address this issue as it applies to defendant’s conviction for the aggravated criminal sexual assault of R.J.M.

Defendant argues that he was not proved guilty beyond a reasonable doubt because R.J.M.’s testimony was neither clear and convincing nor substantially corroborated. However, the standard to be used in reviewing the sufficiency of the evidence in all criminal cases is proof beyond a reasonable doubt, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) In cases where a sex offense is charged, the State is no longer required to demonstrate that the victim’s testimony is either clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. (People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732, 742; People v. Byrd (1990), 206 Ill. App. 3d 996, 1006, 565 N.E.2d 176, 182.) Therefore, the appropriate standard of review when a challenge to the sufficiency of the evidence is presented is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

In the present case, R.J.M. testified that while he was visiting his grandparents’ home, defendant put his penis into his “butt” while they were in the front room of the home with his brother J.R.M. He further testified that his grandmother and sister, J.S.M., were in the bathroom when this incident occurred. R.J.M. demonstrated the act through the use of anatomically correct dolls. When R.J.M. arrived at home he told his mother that he hated defendant. He later told Dr. Dekker and other members of the medical team at Mount Sinai Hospital that defendant had anally sexually assaulted him. In addition, Dr. Dekker’s medical examination of R.J.M. revealed that he had been anally sexually abused. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of the aggravated criminal sexual assault of R.J.M. We therefore conclude that the court’s finding is not so unsatisfactory, unreasonable or improbable as to raise a reasonable doubt of defendant’s guilt.

Accordingly, the judgment of the court finding defendant guilty of the aggravated criminal sexual assault of R.J.M. is affirmed, and the judgment of the court finding defendant guilty of the aggravated criminal sexual assault of J.S.M. is reversed and that sentence is vacated.

Affirmed in part and reversed in part.

CERDA, P.J., and GREIMAN, J., concur.

       Justice Freeman participated in this appeal, but has since been elected to the Illinois Supreme Court. Justice Greiman was substituted as the third member of the panel and has read the briefs and listened to the oral argument tapes.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GORDON TROWERS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—0528
    Opinion filed June 12, 1991.

      Sam Adam, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant Gordon Trowers was found guilty of possession of controlled substance, armed violence and bribery. The trial court merged the conviction for possession of controlled substance into the armed violence conviction and sentenced defendant to serve a concurrent sentence of six years’ imprisonment on the armed violence count and three years on the bribery count. On appeal defendant argues that (1) the trial court erred in finding him guilty of the offense of armed violence; (2) the evidence presented at trial on the offense of bribery did not conform to the charging instrument; and (3) he was not proven guilty of possession of controlled substance beyond a reasonable doubt. We affirm.

The State called three witnesses to testify at trial: Chicago police officer Robert O’Neill, Detective Brad Williams, and Sergeant Carl Edenfield. On May 13, 1986, the officers were assigned to the Gang Crimes South Unit of the Chicago police department. The officers testified that at approximately 1:30 p.m. on that date, they, along with two other Chicago police officers and a Calumet Park police officer, went to 12342 South Bishop, Calumet Park, to execute a search warrant. The warrant sought an individual named Gordon who resided in the garden apartment at that address.

Williams testified that Officer O’Neill knocked on the door to the apartment with his flashlight and stated, “[0]pen the door, police, we have a search warrant.” No one responded to the officer’s knock, but Williams heard running and glass breaking inside of the apartment. At that point, Williams broke down the apartment door with a sledgehammer and O’Neill entered the apartment with Williams and the other officers following. When Williams entered, he observed a man, later identified as Josh Bolton, standing a few feet inside the apartment blocking the doorway. Williams also observed defendant near the rear of the living room, running toward the kitchen. Officer O’Neill pushed Bolton aside and chased defendant into the kitchen. Williams testified that he followed O’Neill and defendant into the kitchen, where he observed defendant flicking the white powdered contents of a plastic bag onto the kitchen counter, floor, and into a sink filled with dishes and water.

Williams testified that he observed defendant holding a gun in his hand. O’Neill told defendant to drop the gun. Defendant dropped the gun, and Williams recovered it from the floor. The gun was a .25 caliber automatic weapon with seven live cartridges in the clip. The gun was cocked and had a bullet in the chamber.

O’Neill handcuffed defendant. Williams observed a white powdery substance on the sink, countertop and the floor and a clear plastic bag floating in the kitchen sink. Williams removed a plastic bag from the kitchen table and filled it with white powder from the sink area and placed it in his pocket. O’Neill took a piece of aluminum foil from the kitchen table, scraped some white powder into it and gave the aluminum foil to Williams.

Williams testified that defendant was read his Miranda rights and shown a copy of the search warrant. Thereafter, defendant told Williams and O’Neill that there was from $500 to $700 in a shoe box in the bedroom which they could have if they just forgot about the case. Defendant motioned to the bedroom, and Williams retrieved the shoe box from underneath the bed and brought it to defendant. Williams opened the box and observed what was later determined to be $747 in cash. Defendant motioned with his head toward the box and stated, “[J]ust forget the case.”

Following closing argument, defendant was found guilty of possession of controlled substance, armed violence and bribery. The trial court vacated the finding of guilty on the charge of possession of a controlled substance and merged it into the greater offense of armed violence. Thereafter, judgment was entered on the armed violence and bribery counts and defendant was sentenced to serve a concurrent sentence of six years on the armed violence count and three years for bribery. This appeal followed.

On appeal defendant first argues that the trial court erred in finding him guilty of armed violence. It is his position that the legislature did not intend the armed violence statute to apply to situations where a person is lawfully in possession of a gun in his or her own home. We disagree.

The armed violence statute provides that a person commits the offense when, “while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2.) A person is considered “armed with a dangerous weapon *** when he carries on or about his person or is otherwise armed” with a handgun. (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 1.) The mere physical presence of a weapon while a crime is being committed is sufficient to bring the defendant’s acts within the proscription of the statute. (People v. Alejos (1983), 97 Ill. 2d 502, 508, 455 N.E.2d 48, 50; People v. Bond (1989), 178 Ill. App. 3d 1020, 1022, 534 N.E.2d 156, 158.) The statute was designed in part to deter the conduct of carrying a weapon while committing a felony. Bond, 178 Ill. App. 3d at 1022.

Here, the evidence indicated that defendant was armed with a handgun in the kitchen of his home, while he attempted to dispose of a controlled substance as police officers executed a search warrant on his apartment. Under these circumstances, the danger which the armed violence statute seeks to prohibit was present. This danger was not abated by the fact that defendant was inside rather than outside of his home. Defendant was armed with a dangerous weapon while committing the offense of possession of a controlled substance. We therefore conclude that the trial court did not err in finding defendant guilty of armed violence predicated on his finding of guilty of the offense of possession of a controlled substance.

Defendant next argues that the evidence presented at trial on the offense of bribery did not conform to the allegations contained in the information charging the offense. We disagree.

A person commits bribery when:

“(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness, he promises or tenders to that person any property or personal advantage which he is not authorized to accept.” Ill. Rev. Stat. 1985, ch. 38, par. 33 — 1(a).

Defendant contends that the evidence at trial was insufficient to prove beyond a reasonable doubt that he physically tendered to any police officer any of the money contained in the shoe box. However, the word “tender” as used in the statute has been held to include the mere offer or promise made with the requisite intent. The act of offering or promising the tender of a prohibited commodity or act is sufficient to constitute the completed offense of bribery. People v. Brandstetter (1982), 103 Ill. App. 3d 259, 269, 430 N.E.2d 731, 738-39.

Thus, the evidence in the present case that defendant directed the police to the bedroom location where there was a hidden quantity of cash, and stated to the officers that they could have the money if they would forget about the case, was sufficient to prove beyond a reasonable doubt that defendant “tendered” the money to the officers in violation of the bribery statute. We therefore conclude that the evidence introduced at trial on the offense of bribery conformed to the information charging that offense.

Finally, defendant argues that he was not proven guilty of possession of a controlled substance beyond a reasonable doubt. We disagree.

It is for the trier of fact to judge the credibility of witnesses and decide the weight to be given their testimony. (People v. Titone (1986), 115 Ill. 2d 413, 422, 505 N.E.2d 300, 303.) On review, the appropriate standard when a challenge to the sufficiency of the evidence is presented is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.

Defendant argues that the testimony of the officers should not be believed because there were discrepancies between the arresting officers’ arrest report, inventory sheets and trial testimony. Specifically, defendant argues that Williams and O’Neill both testified that Williams scooped up a white powdery substance from the side of the sink while O’Neill picked up white powder from the floor with a piece of aluminum foil. However, the police report did not indicate that white powder was recovered from the side of the kitchen sink. In addition, defendant asserts that the inventory sheets made out on that day indicate that one plastic bag and one aluminum foil packet were recovered from Josh Bolton and not defendant.

Defendant argued this position at trial and the court stated as follows:

“I am going to believe that the police officer made a mistake on that. And I’m going to find that the defendant was the one on the scene, and he did have a plastic bag, and he was dropping some white powder either in the sink, or on the floor, or both places. I believe the evidence was completed [sic] uncontested that he was the one at the sink.
* * *
And they all place the defendant at the sink. They didn’t place the co-arrestee at the sink, and they didn’t place the coarrestee with the plastic bag, and they didn’t place the co-ares-tee [sic] with the gun.”

The trial court weighed the discrepancies between the police officers’ testimony and their reports, and concluded that despite some minor inconsistencies, their testimony was credible. After reviewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found defendant guilty of possession of a controlled substance beyond a reasonable doubt.

Accordingly, for all of the foregoing reasons, we affirm the judgment of the court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    NORRIS CAMPBELL, Plaintiff-Appellant, v. COOK COUNTY SHERIFF’S MERIT BOARD et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—0590
    Opinion filed June 12, 1991.
    Elizabeth Dale and Kenneth N. Flaxman, both of Chicago, for appellant.

      John O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Myra J. Brown, and Steven B. Borkan, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Norris Campbell (Campbell) appeals from an order of the circuit court which affirmed a decision by defendants, Cook County Sheriff’s Merit Board (Merit Board) and James E. O’Grady, Sheriff of Cook County (the Sheriff), to terminate Campbell from his employment as a Cook County deputy sheriff with the Cook County Department of Corrections (Department of Corrections). On appeal, Campbell contends that (1) the Merit Board hearing which preceded the termination of his employment was held without notice in violation of his right to due process of law; and (2) the Merit Board’s practice of conducting hearings before a single board member violates its enabling statute. We affirm.

On July 14, 1987, the Sheriff filed a complaint against Campbell with the Merit Board. The complaint alleged that Campbell had been absent from duty at the Cook County jail for a total of 42 days in a six-month period and that those absences constituted a pattern which violated the rules and regulations of the Merit Board and the Department of Corrections. Campbell did not file any pleadings in response to the complaint. A preliminary hearing date was set for August 24, 1987. On that date, Campbell appeared pro se and requested a continuance in order to retain an attorney. The Sheriff answered ready. The hearing officer continued the case until September 28, 1987, for a status date and stated: “I want to make sure that everyone knows that then we’ll go into a hearing.”

On September 28, 1987, Campbell appeared again without counsel. At Campbell’s request, the hearing officer continued the case until October 19, 1987, for a hearing. The hearing officer informed Campbell that if he returned without an attorney, the matter would proceed to hearing and that no further continuances would be granted. On October 19, Campbell appeared pro se and told the court that he had hired an attorney, but that the attorney could not make it to court on that date. The hearing officer granted Campbell a third and final continuance and set the case for hearing on November 9, 1987.

On November 9, 1987, Campbell appeared pro se and told the hearing officer that he had hired another attorney whom he expected to appear on his behalf on that date. Following a brief continuance during which Campbell’s attorney failed to appear, the hearing officer continued the case for hearing on January 4, 1988. On January 4, Campbell failed to appear. The Sheriff made a motion for the entry of an order of default against Campbell and for a prove up hearing. The hearing officer took the Sheriff’s motion under advisement. On January 8, the Merit Board entered an order of default against Campbell and set the case for a prove up hearing on January 25, 1988.

On January 25, the Sheriff appeared before the hearing officer for a prove up hearing. At the hearing, the Sheriff called a Department of Corrections personnel supervisor to testify. The personnel supervisor testified that she was in charge of personnel and attendance records for the Department of Corrections. She produced Campbell’s attendance record which was introduced into evidence. The record indicated that, exclusive of paid sick days, vacation, personal or other compensated off days, Campbell was absent without authority and without pay on 42 days within a six-month period. At the close of the personnel supervisor’s testimony, the Sheriff moved for Campbell’s dismissal from the Department of Corrections. The hearing officer took the Sheriff’s motion under advisement.

On March 4, 1988, the Merit Board entered an order which sustained the Sheriff’s complaint and terminated Campbell’s employment retroactive to January 25, 1988. On March 31, 1988, Campbell filed a motion for reconsideration of the Merit Board’s decision. Following a hearing on April 18, the Merit Board denied Campbell’s motion on May 9, 1988. Thereafter, Campbell filed a complaint in the circuit court seeking administrative review of the Merit Board’s decision. Following a hearing, the trial court affirmed the decision of the Merit Board. This appeal followed.

Defendant first contends that the Merit Board hearing which preceded the termination of his employment was held without notice and thus constituted a violation of his due process rights. We disagree.

The essence of due process protection is notice of the pending government action and an opportunity to be heard with regard to that intended action. (Interstate Material Corp. v. City of Chicago (1986), 150 Ill. App. 3d 944, 953, 501 N.E.2d 910, 916.) Effective notice is notice that is so full and clear as to inform persons of ordinary intelligence what is proposed. The test is whether the person involved should have anticipated the possible effects and orders. (Owens v. Second Baptist Church (1987), 163 Ill. App. 3d 442, 447, 516 N.E.2d 712, 715.) The object of notice is to inform the party notified, and if the information is obtained in any way other than by formal notice, the object of notice is attained. (Owens, 163 Ill. App 3d at 447.) Due process is not denied when a party fails to avail himself of the opportunity to be heard after it is offered to him. Grant, Schon, Wise & Grant, P.C. v. Borrowdale Co. (1983), 114 Ill. App. 3d 89, 92-93, 448 N.E.2d 574, 577.

In the present case, the record indicates that written notice of the hearing dates was mailed to Campbell at his last known address. In addition, Campbell was informed in person at each hearing of the next hearing date. In fact, Campbell appeared on all hearing dates except for the January 4, 1988, date. However, Campbell contends that although he received actual notice of the January 4 hearing, he did not receive formal written notice. He further contends that lack of written notice constitutes denial of his right to due process. In addition, Campbell complains that the Merit Board’s failure to inform him of the January 25, 1988, prove up hearing constituted a denial of his due process rights.

Campbell’s constitutional right to due process was not violated where he was given adequate written and actual notice of his hearing dates. Campbell’s failure to appear for the hearing on January 4, 1988, despite having received actual notice at the November 9, 1987 hearing, resulted in the entry of an order of default. Following the missed hearing date, Campbell failed to contact the Sheriff or the Merit Board regarding the January 4 proceedings. Campbell’s failure to avail himself of the opportunity to be present and to contest the complaint against him was due to his own inaction and not to lack of notice.

On December 21, 1987, the Merit Board mailed written notice of the January 4, 1988, hearing date to Campbell at his last known address. That letter was returned to the Merit Board with a postal service sticker which indicated that Campbell’s mail-forwarding directions had expired. However, the hearing officer’s statement on November 9, 1987, that the matter was continued until January 4, 1988, for hearing as well as his statements on October 19, 1987, that the case would proceed to hearing on the next date whether or not Campbell appeared with an attorney were sufficient to inform a person of ordinary intelligence that the case would proceed to hearing on the next date. We therefore conclude that the trial court did not err in finding that the Merit Board provided Campbell with sufficient notice of its January 4, 1988, hearing to satisfy the requirements of due process.

Campbell further contends that the Merit Board’s practice of conducting hearings before a single board member is a violation of its enabling statute. We disagree.

The Merit Board’s jurisdiction is derived from “An Act in relation to the Cook County Sheriff’s Merit Board” (Ill. Rev. Stat. 1987, ch. 125, par. 51 et seq. (now Ill. Rev. Stat. 1989, ch. 34, par. 3 — 7001 et seq.)). This act creates the Cook County Sheriff’s Merit Board, which consists of three members appointed by the Sheriff. (Ill. Rev. Stat. 1987, ch. 125, par. 52 (now Ill. Rev. Stat. 1989, ch. 34, par. 3 — 7002).) The Act also gives the Merit Board the authority to hear matters relating to the removal, demotion or suspension of full-time deputy sheriffs and county corrections officers. (Ill. Rev. Stat. 1987, ch. 125, par. 62 (now Ill. Rev. Stat. 1989, ch. 34, par. 3 — 7012).) The Board is further authorized to promulgate rules, regulations and procedures. Ill. Rev. Stat. 1987, ch. 125, par. 56 (now Ill. Rev. Stat. 1989, ch. 34, par. 3 — 7006).

The rules and regulations of the Merit Board provide that “[t]he Board or any member thereof, shall hear the case and receive the evidence thereto. All hearings shall be public.” (Rules & Regulations of the Cook County Sheriff’s Merit Board, Article IX, par. C(l) (1988).) The rules further provide that “[i]f the case is heard by one Merit Board member, the Board shall review the evidence, may review, at its discretion, the hearing transcripts and then the Board shall make its findings and determine its order.” Rules & Regulations of the Cook County Sheriff’s Merit Board, Article IX, par. D(l) (1988).

Campbell contends that the Merit Board’s rules and regulations which allow for one board member to act as a hearing officer violate the provision of the Merit Board’s enabling statute which provides that “no full-time deputy sheriff *** or county corrections officer and no employee in the County Department of Corrections shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the Sheriff and a hearing before the Board thereon.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 125, par. 62 (now Ill. Rev. Stat. 1989, ch. 34, par. 3 — 7012).

Following the hearing conducted by a single board member, the case was taken under advisement. Thereafter, in a written order signed by the entire Merit Board, the board rendered its decision finding Campbell in violation of the rules of conduct of the Merit Board and the Department of Corrections. The decision further ordered the termination of Campbell’s employment as a county corrections officer. Since the Merit Board’s rules and regulations provide for review by the entire Merit Board of all the evidence presented at the hearing prior to entry of its final order, Campbell has failed to demonstrate that he was prejudiced by the application of the rules and regulations. The Merit Board’s review of the evidence prior to rendering its final decision sufficiently satisfies the statutory requirement of a hearing before the board. (See McCabe v. Department of Registration & Education (1980), 90 Ill. App. 3d 1123, 1129-30, 413 N.E.2d 1353, 1358.) We find no conflict between the Merit Board’s enabling legislation and its rules and regulations. We therefore conclude that the trial court did not err in finding that the Merit Board’s practice of conducting hearings before a single board member does not violate its enabling statute.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE GREIMAN

text:
    VLASTA MELICHAREK, Plaintiff-Appellant, v. CARSON PIRIE SCOTT AND COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1455
    Opinion filed June 12, 1991.

      Kenneth E. North & Associates, of Glen Ellyn (Kenneth E. North and Kathleen M. Smith, of counsel), for appellant.
    Paul Armstrong, of Chicago, for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff, Vlasta Melicharek, brought this action in the circuit court of Cook County, alleging that defendant, Carson Pirie Scott & Company, had wrongfully discharged her from its employ in violation of a contract between plaintiff and defendant.

Plaintiff claims that the employee handbook distributed by defendant created enforceable contract rights and that the defendant breached that contract by plaintiffs wrongful discharge.

Defendant asserts that no contract is created under the guidelines of Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, and that, in any event, plaintiff’s discharge was appropriate even if a contract had been established.

At the conclusion of plaintiff’s case in chief at a bench trial, the court granted defendant’s motion for a directed finding, concluding: (1) the employee handbook distributed by defendant and the surrounding factors relative to it did create a contract between the parties; however, (2) the discharge of plaintiff was an action appropriate within the contemplation of the agreement and not wrongful.

We agree with the trial court’s analysis and we affirm.

Plaintiff, who was the only witness testifying in the case, was employed by defendant from August 1956 until June 1976. At the time of her discharge, she was the manager of a branch store at the Prudential Plaza in Chicago, Illinois. She testified that she had received an employee handbook at the time of her employment in 1956 that was similar, but not identical, to the 1975 employee handbook that had been received in evidence. She acknowledged that defendant periodically revised its handbooks and that there were provisions with respect to probation and termination contained in these handbooks.

The Carson Pirie Scott handbook provides information on issues such as vacation time, insurance, medical needs, discount buying rates for employees, name badges, security procedures, smoking restrictions, pension plan, as well as store policy regarding the demeanor expected of employees “on the floor” with customers.

The handbook also included material on “probation and termination” and provided, inter alia:

“Rules and regulations are necessary in every successful business and when broken some sort of disciplinary action is the result, ranging from a simple reprimand to termination. In the preceding pages we have covered some of the basic Policies and Rules of the company which you must know and understand.
The following is a list of offenses which will'result in IMMEDIATE DISMISSAL.
1. Improper handling of Company money.”

The handbook then describes 15 other violations for which there may be immediate dismissal, before continuing in a new paragraph:

“Violation of any of the following will result in a WRITTEN WARNING INTERVIEW followed by DISMISSAL if necessary. (In no case will a written warning be required during the 90 day probationary period.)”

The handbook then identifies 10 minor offenses that warrant a written warning interview.

Two other employees worked with plaintiff at the Prudential Plaza branch although plaintiff was responsible for counting money at the close of each business day, locking the money in a safe and depositing the envelope at the Mid-America National Bank on the following morning. Occasionally, the plaintiff delegated this responsibility to the assistant manager.

On June 16, 1976, the receipts were not tallied, but were placed in the store safe. At 9:30 a.m. on the following day, the plaintiff counted the money and placed it into a money pouch for deposit, placed the pouch in the locked compartment in the store room and instructed the assistant manager to make the necessary bank deposit.

Plaintiff then left the store at 10:00 a.m. to attend a business meeting at defendant’s State Street store. She returned some hours later and was advised by the assistant manager that the money was missing.

Plaintiff instructed the assistant manager to inform the security department of the missing funds, did not talk to security officers herself and then left the premises on that day earlier than was usual.

On June 18, 1976, plaintiff was questioned by her supervisors and representatives of defendant’s security department. Thereafter, she submitted to a lie detector test, but the results were inconclusive. Plaintiff then declined to allow defendant to review her bank account records.

On June 23, 1976, plaintiff was advised that she would be held responsible for the missing funds and was given the option of resignation or involuntary dismissal. Plaintiff refused to resign voluntarily and was thereafter dismissed from employment by defendant.

The issues considered on appeal are: (1) Did the employee handbook create a contract binding defendant to a particular procedure for terminating plaintiff’s employment, and (2) if so, did the manner in which plaintiff was terminated violate the provisions of the employee handbook?

Plaintiff asserts that the record does not indicate that she was guilty of “improper handling of company money” which would have given reason for immediate dismissal.

An employee handbook or other policy statement may create enforceable contractual rights if the traditional requirements for contract formation are present. In Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314, the Illinois Supreme Court set out the criteria:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.”

After examining the specific provisions set out in the handbook and considering plaintiff’s testimony with regard to commencement of her employment, we agree that the handbook and surrounding facts create an enforceable contract and that the Duldulao requirements have been satisfied. The handbook contains clear and definitive statements regarding salaries, lunch hours, vacation pay, insurance, sick pay, employee discounts, probation and termination. According to Duldulao, these statements are clear enough to have caused plaintiff to reasonably believe that an offer has been made. The statements have been disseminated in such a manner, by way of the handbook, so that the plaintiff was aware of their contents and reasonably believed them to be an offer. Plaintiff accepted the offer by commencing or continuing to work after learning of the contents of the handbook.

If Duldulao had been our supreme court’s last word on this matter, this case would be extremely close. The handbook in Duldulao was exacting in the clarification of employees’ rights and provided progressive disciplinary procedures before an employee might be discharged. In Duldulao, the handbook provided “permanent employees could only be terminated with proper notice and investigation,” and “are never dismissed without prior written admonitions.” (Duldulao, 115 Ill. 2d at 486.) Except in the case of extremely serious offenses, the handbook required three warning notices before a permanent employee could be dismissed.

Although the Carson’s handbook does not set out that kind of precise process, the Illinois Supreme Court has recently had the opportunity to consider an employee’s manual containing language similar to the Carson’s handbook. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, rev’g (1989), 189 Ill. App. 3d 450.) In Mitchell the handbook provided “violation of any of the following policies will lead to disciplinary action, up to and including dismissal.” A later reference indicated that all time cards were required to reflect dates and times worked. The employee had incorrectly stated his hours on a time card.

After determining that the Duldulao requirements had been met with respect to the formulation of a contract, the Mitchell court determined that the remedial portions of the handbook which related to the employee’s allegedly inadvertent error in preparation of the time card was not necessarily "other misconduct” within the meaning of the language of the handbook and that as such a jury would have to decide whether plaintiff’s actions constituted “misconduct” rather than by summary judgment.

The Carson’s manual has been drafted with greater clarity and detail than the Jewel Company manual in Mitchell. In Mitchell the supreme court reversed this court, believing that it was a matter for the jury to determine whether the incorrect notation on the time card was inadvertent or intentional and whether such intentional act, if that be the case, was “other misconduct” under the provisions of the Jewel handbook.

Generally, employers may terminate employees at will and the mere distribution of an employment manual does not necessarily alter that rule. In Duldulao, Mitchell and here, the employers have reserved the right to terminate probationary employees at will and have made a separate category for other employees.

Accordingly, an employer’s decision to provide its work force with employee manuals may create enforceable contractual rights. This case and Mitchell are distinguishable from two similar cases recently decided by this court. (Semerau v. Village of Schiller Park (1991), 210 Ill. App. 3d 493; Chesnick v. Saint Mary of Nazareth Hospital (1991), 211 Ill. App. 3d 593.) In those two cases, regarding the issue of whether an employee’s manual creates a contract, the defendant employers had clear language disclaiming the manual to be a contract.

In Semerau, plaintiff alleged that she was wrongfully discharged from her job as an emergency medical technician because defendant did not follow the disciplinary policy suggested in the manual that disciplinary action “should generally be progressive in severity.” The court there found no contract was created, given the specific disclaimer in the manual, and the lack of other language in the manual strong enough to overcome the explicit meaning of the disclaimer.

In Chesnick, plaintiff, a nurse-administrator at defendant’s hospital, challenged defendant’s manual regarding unpaid absences. Along with the manual, plaintiff signed a separate document which stated that employment by the hospital of plaintiff was not contractual in nature and that plaintiff understood. The court relied on the specificity and the visibility of the disclaimer in finding no contract, as it has done in prior decisions. Anders v. Mobil Chemical Co. (1990), 201 Ill. App. 3d 1088, 559 N.E.2d 1119; Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 546 N.E.2d 1025; Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 540 N.E.2d 979; compare Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982 (which found a contract because the disclaimer was not set off from the rest of the text, or otherwise highlighted or titled as such).

Unlike Mitchell, the trial court here heard plaintiff’s evidence and had an opportunity to weigh that evidence to determine if plaintiff had met her burden by a preponderance of the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43; Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 561 N.E.2d 1134.) The handbook specifically stated that an employee would be subject to “immediate dismissal” for improper handling of company money. Plaintiff testified that as manager she was ultimately responsible for all of the money and merchandise in the branch store, that the money was missing under most suspicious circumstances, that she failed to personally contact the security department, failed to question other employees in the store that day, never determined whether the funds had been deposited in the bank during her absence and left the premises early on the day of the incident. On these facts, the trier of fact could certainly conclude that the plaintiff had improperly handled company money and was accordingly subject to immediate dismissal by the terms of the Carson’s handbook.

In considering the weight and quality of the evidence, the court must consider all of the evidence, including evidence favorable to the defendant, pass on the credibility of witnesses, and draw reasonable inferences from the testimony. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151; Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179; Vande vier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 482 N.E.2d 377.) If, after the weighing process, the court rejects some of the evidence necessary to the plaintiff’s prima facie case, the court will enter judgment in the defendant’s favor; if sufficient evidence necessary to establish plaintiff’s prima facie case remains, the court should deny the defendant’s motion. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43; Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 561 N.E.2d 1134.) We are also mindful that a reviewing court will not reverse a trial court’s decision unless it is contrary to the manifest weight of the evidence.

To make a prima facie case, a plaintiff must present evidence regarding every essential element of her cause of action.

We find that plaintiff has not proved defendant’s breach of the contract and thus has failed to make a prima facie case.

For that reason we affirm.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellee, v. D. JAMES KENNEDY et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—90—1901, 1—90—1902 cons.
    Opinion filed June 13, 1991.

      Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Timothy C. Klenk and Jerome K. Bowman, of counsel), for appellant D. James Kennedy.
    Keith A. Klopfenstein and Louis E. Bellande, Jr., both of Chicago, for appellant Richard B. Shoff.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

D. James Kennedy and Richard B. Shoff, defendants, brought this petition for leave to appeal pursuant to Supreme Court Rule 306(aXl)(iii) on the grounds that the Illinois courts lack personal jurisdiction over them. (134 Ill. 2d R. 306(a)(l)(iii).) The two defendants are nonresident directors of a Virginia not-for-profit corporation, National Aids Prevention Institute, Inc. (NAPI). In 1989, NAPI, acting through its president, engaged in fund-raising activities that ultimately resulted in the filing of a lawsuit by the Illinois Attorney General. The complaint alleges that 12 different defendants violated portions of the Illinois Solicitation for Charity Act (Ill. Rev. Stat. 1989, ch. 23, par. 5101 et seq.); the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121V2, par. 261, et seq.); and the Illinois Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1989, ch. I2IV2, par. 311 et seq.).

In their challenge to the Illinois courts’ jurisdiction over them, Shoff and Kennedy assert that the State has failed to establish that they had the necessary minimum contacts with Illinois, thereby violating their due process rights. Alternatively, they rely on the fiduciary shield doctrine, the application of which would prevent the corporation’s contacts with Illinois from being imputed to the individual defendants. The trial court found in favor of its in personam jurisdiction and denied their motions to quash.

We reverse.

Background

The State’s complaint alleges that various defendants collectively engaged in a profit-making scheme in Illinois under the guise of collecting charitable contributions for the Children with AIDS Foundation (CWAF), which is a subsidy service project of NAPI.

NAPI is a not-for-profit Virginia corporation with its principal place of business in Virginia. Kennedy, a resident of Florida, was chairman of the board of directors. Shoff, a resident of North Carolina, was vice-chairman. H. Edward Rowe, a Virginia resident, is a director and also NAPI’s president. Rowe is not contesting the Illinois courts’ jurisdiction over him based on his activities in this State.

At the heart of the controversy is the “wishing well” program that NAPI used to raise money for its AIDS-related charity, CWAF. Another defendant who is not a party to this appeal, Apple Marketing, exclusively markets the “Vortx Wishing Well Program,” under which coin-collecting devices resembling wishing wells were placed in various retail stores for the purpose of garnering cash contributions to CWAF. Each wishing well bore a label containing CWAF’s service message and identifying CWAF as a project of NAPI.

The record contains a number of documents relevant to the allegations of the complaint. These include NAPI’s articles of incorporation; a copy of NAPI’s registration in Illinois as a charitable organization intending to solicit funds in the State; copies of contracts between CWAF and certain “vendors” who placed the wishing wells in retail stores and collected the proceeds; and Apple Marketing’s written presentation of “The Vortx Wishing Well Program of the Children With Aids Foundation,” which contains representations about the program and is designed to encourage vendors to participate in it at an expected profit to themselves.

Pursuant to the distribution contracts between CWAF and the individual vendors, the vendor pays CWAF $6,500 for 200 wishing wells. In return, the vendor has the right to collect and keep all contributions to each wishing well except for $2.50 per month per wishing well, which is to be remitted to CWAF.

The complaint alleges, in essence, that the defendants collectively violated the law through their participation in a scheme that allowed charitable donations to end up in the pockets of private individuals rather than in the coffers of CWAF. This fact was not disclosed to those members of the general public who donated cash to the charity by placing coins in the wishing wells located in retail stores. The complaint alleges that NAPI and the defendant officers and directors are trustees of the solicited funds and have a fiduciary duty to safeguard the funds and to prevent waste of charitable donations. The complaint further alleges that the defendants, in placing signs on the wishing well regarding CWAF’s purpose, misrepresented to the contributors where the donations would go, leading them to believe that the money benefited children with AIDS.

Other, unverified allegations in the complaint, which were made “upon information and belief,” state that the defendants intentionally misled the owners of stores in which the wells were placed into thinking that the donations put into the wells by store customers would primarily benefit the charity. The complaint characterizes the conduct of defendants as fraudulent misrepresentation of the nature of their business activities in violation of the statutory law prohibiting consumer fraud, deceptive trade practices, and the law governing charitable solicitations in Illinois.

Relevant to the pending appeal are those facts that bear on the issue of whether two of the 12 defendants, Kennedy and Shoff, had sufficient jurisdictional contacts with Illinois to justify our courts’ exercise of jurisdiction over them.

On December 15, 1986, Kennedy, Shoff, and H. Edward Rowe incorporated NAPI and served as initial directors. NAPI was formed as a charitable corporation designed to benefit persons suffering from AIDS. It has been given a Federal income tax exemption for the donations received by the charity. On August 25, 1989, NAPI registered with the office of the Illinois Attorney General as a charitable organization, pursuant to Illinois law. In the registration statement CWAF was listed as the subsidiary service project of NAPI that would be soliciting funds in Illinois. The registration form indicated NAPI/ CWAF’s intention to use coin-collection containers and direct mail in its solicitation efforts.

The allegations directed against Kennedy and Shoff in their capacity as directors and officers of NAPI state that both men were and are “responsible for the day-to-day business decisions and activities of NAPI, including the conduct of its affairs relating to charitable solicitations and use of donations and other funds.” The complaint does not specifically allege that the two men had actual knowledge of the wishing well program, which apparently was initiated by H. Edward Rowe, NAPI’s president and chief operating officer. Nor does the complaint allege that Kennedy and Shoff took any profits from the scheme or received any compensation from NAPI for their services as directors.

In their motions to quash summons pursuant to special and limited appearances, Kennedy and Shoff filed affidavits in support of their position that they had no contacts with Illinois that would justify the courts’ exercise of jurisdiction over them. Kennedy stated as follows: In 1987, NAPI’s board of directors, of which he is the uncompensated chairman, delegated to defendant Rowe, NAPI’s president, the matter of possibly employing a professional fund-raiser, but there was no mention of the wishing well program; Kennedy himself was not involved in any way with the wishing well program, nor was he aware of its existence until the pending lawsuit; he never negotiated any aspect of NAPI’s fund-raising efforts in any State or otherwise participated in such activities. He further stated that he owns no property in Illinois, is a resident of Florida, and never conducted any business in the State on behalf of NAPI or otherwise acted on behalf of the organization in Illinois.

Shoff’s affidavit averred that he served as an uncompensated board member of NAPI from December 1986 until his resignation in January 1990. He stated that he never had any involvement with NAPI fund-raising in Illinois. The only time fund-raising was discussed at a NAPI board meeting was in 1987, when Rowe was authorized to consider employing a professional fund-raiser. Shoff did not recall any discussion of the wishing well program or Apple Marketing. Shoff further stated that he never resided in Illinois; owned no property in the State; received no money or other benefit from NAPI fund-raising activities; never participated in the wishing well program; and did not learn of its existence until the instant lawsuit was filed. Finally, he stated that he did not know that a letterhead bearing his name and 18 others was used in marketing the wishing well program.

The wishing well program did not begin until 1989, more than two years after the board meeting in which fund-raising was generally discussed, and both Kennedy and Shoff maintain that they had no involvement in or knowledge of the program.

The State did not file counteraffidavits or additional evidentiary material, and did not request leave to take discovery of the jurisdictional issues. Instead, the government chose to rely on the verified and unverified allegations of its complaint, along with the attached exhibits.

In addition to the general allegation that Kennedy and Shoff, as directors, were responsible for the day-to-day operations of NAPI, the State relies on the fact that their names are included in the left margin of CWAF’s printed letterhead. The record contains copies of letters written on the stationary. The letters summarize the program and explain the contract obligations of vendors who agreed to pay CWAF $2.50 per month per wishing well. The letterhead lists the national officers (Kennedy, Shoff, and Rowe), along with the advisory board consisting of 16 doctors specializing in different medical disciplines. The signature of H. Edward Rowe appears, along with the following designation: “Dr. H. Edward Rowe, President & CEO of CHILDREN WITH AIDS FOUNDATION (A service project of the National AIDS Prevention Institute).”

The record also reveals that the individual vendor contracts were executed by Rowe on behalf of CWAF. In registering NAPI as a charitable organization intending to solicit and collect funds in Illinois, Rowe filled out a registration statement listing himself as the president and CEO and also as “the *** individual having final discretion as to the distribution and use of contributions received.” Lois Rowe, the only other person from NAPI or CWAF listed in the registration, is designated as “corporate secretary.”

At the hearing on Kennedy’s and Shoff’s motion to quash summons, the trial court remarked that this is “a close case” and that “if this were a commercial case *** the decision would be different and the motion would be granted.” Apparently, the trial court was distinguishing between for-profit corporations and those engaging in charitable fund-raising. The court denied both defendants’ motions, noting that the two men’s contacts with Illinois were “minimal” but that “against the backdrop of the solicitation of charitable funds, the fact that they were initial directors of the corporation, the fact that their names appear *** [conspicuously along the side of the letterhead] ***, that is sufficient.”

Opinion

We do not believe that the above facts establish that Kennedy and Shoff came into Illinois or committed any jurisdictional acts in this State within the traditional meaning of “minimum contacts” analysis. Because of certain recent developments in the interpretation of the Illinois long-arm statute and the Illinois Constitution’s due process clause, however, we will address the preliminary issue of what is the proper standard to apply to the jurisdictional analysis. In our view, the ultimate issue for us to determine on appeal is whether the acts of CWAF, the subsidiary service of NAPI, can be imputed to Kennedy and Shoff as directors of NAPI or whether the fiduciary shield doctrine insulates them from defending this lawsuit in Illinois.

THE REACH OF THE LONG-ARM STATUTE AND CONSTITUTIONAL RESTRAINTS

In International Shoe, the “minimum contacts” test was created to aid in the determination of whether a particular forum could exercise personal jurisdiction over a nonresident without offending “traditional notions of fair play and substantial justice” under the Federal due process clause. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 2d 95, 102, 66 S. Ct. 154, 158.) In such cases as Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203, the Illinois Supreme Court explained that the Illinois long-arm statute is to be given a definite meaning and scope that does not fluctuate with every new decision regarding the limits of Federal due process. Recent amendments to the Illinois statute, discussed below, may have opened the way to a new wave of fluctuations because of an express statement that Illinois courts may exercise jurisdiction on any basis “now or hereafter permitted” by the State and Federal constitutions.

Without discussing the amendments to the statute, the Illinois Supreme Court recently handed down a decision that activates the due process clause of the Illinois Constitution as a force to be reckoned with in the analysis of personal jurisdiction of Illinois courts. (Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302.) The court announced that the question of whether it is fair to subject a nonresident defendant to Illinois jurisdiction cannot be determined solely by looking at the express terms of the long-arm statute or the Federal due process standard. Rather, Illinois courts must now consider whether “it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.” (141 Ill. 2d at 275, 565 N.E.2d at 1316.) The supreme court also formally recognized the fiduciary shield doctrine, which the Illinois Appellate Court has applied in various cases.

In Rollins, the supreme court reversed the circuit court’s ruling that it had personal jurisdiction over two defendants, the City of Baltimore and a police sergeant from that city who came into Illinois to effect plaintiff’s extradition to Maryland. Unfortunately for plaintiff Rollins, after police officers in East St. Louis, Illinois, stopped him for speeding, they ran a computer check and discovered that the Baltimore police department had an outstanding fugitive warrant for someone with the last name of Rollins. Though the first names were different and despite Rollins’ protestations that he was not the same Rollins that was named in Baltimore’s fugitive warrant, Illinois law enforcement officials kept him in jail pending extradition. For some reason, Rollins signed a waiver of extradition form and a Baltimore police sergeant travelled to Illinois to take custody of Rollins. A Baltimore judge thereafter found that he was not the same person who was identified in the Baltimore warrant and he was released. He then sued various defendants for damages.

In its analysis of the jurisdictional issues in Rollins, the Illinois Supreme Court commented that the due process clause of the Illinois Constitution “contains its own guarantee of due process to all persons (Ill. Const. 1970, art. I, §2), a guarantee which stands separate and independent from the Federal guarantee of due process.” (141 Ill. 2d at 275, 565 N.E.2d at 1316.) The court noted that while it may consider the analysis of Federal due process cases, the final conclusions regarding the construction of the Illinois due process clause are for the Illinois Supreme Court to draw. The court stated:

“We now wish to dispel any suggestion which might inhere in [our previous decisions] that, once a court finds a nonresident defendant has committed acts that fall within the definition of a tortious act or a transaction of business in Illinois (or any other acts specified by the long-arm statute), Illinois’ jurisdictional standards are satisfied and all that remains is for the court to determine if exercising jurisdiction comports with Federal due process standards. Our jurisdictional considerations under State law are not limited to analyzing whether a nonresident’s conduct can be characterized by one of these literal textual descriptions.” 141 Ill. 2d at 274, 565 N.E.2d at 1316.

Notwithstanding the Illinois Supreme Court’s declarations in Rollins, the Attorney General in the pending appeal contends that the long-arm statute is now “co-extensive” with the minimum contacts due process requirements of Federal law. The grounds for this contention are the recent amendments to the long-arm statute, which became effective on September 7, 1989 (Pub. Act 86 — 840). The amendment added eight new, specific jurisdictional acts, including, for example, the “making or performance of any contract or promise substantially connected with this State” and the “ownership of an interest in any trust administered within this State.” (Ill. Rev. Stat. 1989, pars. 2 — 209(a)(7), (a)(13).) The amendment also contains the previously mentioned clause that allows Illinois courts to “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).

Although the legislative intent may have been to expand Illinois courts’ jurisdiction over nonresidents to the extent permitted by the Federal due process clause, we believe that the Illinois Supreme Court’s pronouncements in Rollins constitute a judicial construction to the contrary. The supreme court, rather than the legislature, is charged with construing the scope of constitutional protections and limitations. Therefore, in the hopes of dispelling confusion over what law applies to Illinois courts reviewing a nonresident’s jurisdictional acts in this State, we find that we are bound by the Illinois Supreme Court’s declarations set out in Rollins.

In the pending case, the facts of record indicate that Kennedy and Shoff had no personal contacts with Illinois. They do not own property in this State or conduct business here, nor do they appear to have otherwise invoked the benefits and protections of Illinois law. The mere appearance of their names, printed on CWAF’s letterhead along with 17 others, is not dispositive of the minimum contacts analysis.

The State argues, nevertheless, that the “stock-in-trade of charitable solicitation is the use of recognizable names” and that the defendants “purposefully lent their names to NAPI’s fund-raising efforts.” According to the State, which cites no authorities in support of this proposition, such name lending supports the exercise of jurisdiction because the directors should “reasonably expect” that their names would be used in this fashion.

We do not agree. The solicitation letters in the record were signed by Rowe, president and chief operating officer of NAPI. Rowe is also the person who registered NAPI/CWAF as a charitable organization soliciting funds in Illinois, listing himself as the party responsible for the collection and management of solicitations. This tends to contradict the conclusory averment in the Attorney General’s complaint that, as directors, Kennedy and Shoff were “responsible” for the daily operations of NAPI (and, by extension, the wishing well scheme). Nor do we find evidence that they “purposefully” lent their names to the program or availed themselves of the benefits of Illinois law. Rowe is the party who implemented the wishing well program and signed the vendor contracts, which set out the rights and duties of CWAF and the vendors in connection with the distribution of the wishing wells and collection of the donations.

In contrast, the affidavits of Kennedy and Shoff state that they were not involved in, or even aware of, the wishing well program in Illinois. Their sworn statements remain uncontroverted by any competent evidence in the record and thus are to be taken as true. E.g., Loos v. American Energy Savers, Inc. (1988), 168 Ill. App. 3d 558, 561, 522 N.E.2d 841; Professional Group Travel, Ltd. v. Professional Seminar Consultants, Inc. (1985), 136 Ill. App. 3d 1084, 1089, 483 N.E.2d 1291, 1295 (Well-pleaded facts in an affidavit that denies jurisdiction must be taken as true in the absence of counteraffidavits, “notwithstanding the existence of contrary averments in the adverse party’s pleadings”).

On the burden of proof issue, we agree with the reasoning of Finnegan v. Les Pourvoiries Fortier, Inc. (1990), 205 Ill. App. 3d 17, 25, 562 N.E.2d 989, 994, which holds in part that the party asserting personal jurisdiction over a nonresident must establish jurisdiction by a preponderance of the evidence, rather than by merely making a prima facie showing. We do not believe that even a prima facie showing of jurisdiction has been established in the pending case; in any event, the State did not file counteraffidavits or request discovery before the hearing on the jurisdictional issues. Therefore, we are not persuaded by the State’s suggestion that if we reverse the trial court’s rulings we should remand the matter for further factual development. The State had ample opportunity in the trial court to marshal whatever evidentiary matter it believed relevant to the jurisdictional issues. As the record stands, Kennedy and Shoff’s personal connection to the wishing well scheme is virtually nonexistent.

THE FIDUCIARY SHIELD DOCTRINE

We then reach the final question of whether the jurisdictional acts of CWAF should be imputed to Kennedy and Shoff because they were initial directors of NAPI and officers of the not-for-profit corporation. This brings us back to the Rollins opinion, which commented at length on the application of the fiduciary shield doctrine in Illinois.

The Rollins court first discussed a line of Illinois appellate decisions that have recognized and applied the doctrine, concluding that the supreme court would not “uncritically adopt the holdings of these [appellate] courts regarding the validity of the doctrine in Illinois. In order for this court to recognize the doctrine, we have to find a reasonable basis for it in our long-arm statute and in the public policy and fairness considerations permeating the exercise by Illinois courts of jurisdictional power over nonresidents.” (Rollins, 141 Ill. 2d at 277, 565 N.E.2d at 1317.) The Rollins court remarked that the appellate decisions concerning the fiduciary shield doctrine were rooted in Federal due process definitions of fairness. Apparently, the court also concluded that it should not uncritically adopt the holdings of the United States Supreme Court on the scope of Federal due process in the context of Illinois’ jurisdiction over nonresidents, stating, “Over the years, these pronouncements [of the United States Supreme Court] have broadened State courts’ jurisdictional power over nonresidents, and narrowed the understanding of the due process accorded to nonresident defendants by the fourteenth amendment.” (141 Ill. 2d at 279, 565 N.E.2d at 1318.) In so stating, the Illinois Supreme Court has signalled its intent to adhere to a State standard of fairness and reasonableness. That standard has yet to be defined; however, Rollins demonstrates that technical compliance with the minimal standards of Federal due process is insufficient under Illinois law.

While we believe that the result in the pending case would be the same under either the Federal standard or the newly emerging Illinois standard, we must attempt to follow our supreme court’s lead. Even if the facts in this case were sufficient to satisfy the Federal due process standards for imposing jurisdiction, we would be required to consider whether the exercise of Illinois long-arm jurisdiction would be fair and reasonable under Rollins. See Rollins, 141 Ill. 2d at 273, 565 N.E.2d at 1315 (acknowledging that under the rationale of Calder v. Jones (1984), 465 U.S. 783, 79 L. Ed. 2d 804, 104 S. Ct. 1482, the Baltimore police officer who committed an alleged tort in Illinois had sufficient contacts with the State to justify Illinois’ jurisdiction under Federal due process standards, but declining to find jurisdiction reasonable and fair under the Illinois constitution and fiduciary shield doctrine).

In the context of applying the fiduciary shield doctrine, the Rollins court found it “unfair and unreasonable, under Illinois’ due process clause, *** to assert personal jurisdiction over an individual who seeks the protection and benefits of Illinois law, not to serve his personal interests, but to serve those of his employer or principal.” (141 Ill. 2d at 280, 565 N.E.2d at 1318.) This statement indicates that the fiduciary shield doctrine does protect nonresident corporate representatives, even where the individual agent or employee physically comes into Illinois and commits a “tortious act” under our long-arm statute or within the scope of Federal minimum contacts. While Kennedy and Shoff may not be employees or agents in the sense that the Baltimore police officer was, we find that evidence of their “acts” in Illinois is so tenuous and vague that it is improper to hold them subject to our jurisdiction merely because they were directors of an organization that solicited charitable funds in Illinois under the direction of the president.

We conclude that it would be unfair and unreasonable under the Illinois due process clause to subject Kennedy and Shoff to the jurisdiction of our courts simply because (1) they are corporate directors of NAPI (2) who authorized the president and CEO of the organization to engage in fund-raising activities, (3) which activities were conducted in Illinois by Rowe, using (4) a printed letterhead bearing their names, along with those of 16 other individuals associated with NAPI. (See Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203 (holding that a Texas defendant was not subject to Illinois long-arm jurisdiction for committing “tortious acts” in Texas that resulted in diminution of the funds of an Illinois corporation).) The unrebutted affidavits of the two men state that they were not aware of or involved in Rowe’s wishing well scheme, that they did not profit from it, and that they received no compensation for their services as members of the board or as officers. On this record, we cannot make a contrary inference that they participated in an unlawful scheme so as to justify laying aside the corporate shield doctrine and allowing the acts of Rowe and CWAF or NAPI to be imputed to them as individuals. Cf. Burnhope v. National Mortgage Equity Corp. (1990), 208 Ill. App. 3d 426, 567 N.E.2d 356 (defendant officer who owned 84% of stock and managed the company was not entitled to protection of fiduciary shield doctrine in light of unrebutted allegations that he was the alter ego of the corporation whose activities were for his own profit as well as company’s).

FOR-PROFIT VERSUS NOT-FOR-PROFIT ACTIVITIES

As a final comment, we note our disagreement with the able trial court’s central finding that because this case involves charitable solicitations instead of purely commercial activity, the fiduciary shield doctrine does not apply. In stating that if this case involved directors of a for-profit corporation, the court would have granted the motions to quash service of summons, the court did not explain why that would have made a difference. It may be that the wishing well marketing plan could be viewed as a legitimate way by which a commercial enterprise could earn profits, but not as a legitimate means by which a charity may solicit funds under Illinois law. The vendor contracts in the record reveal a mixed purpose, fund-raising for CWAF and profit raising for the distributors of the wishing wells. The contract provides that after the minimum of $2.50 per month per well is remitted to CWAF, the balance of collections “shall be the estimated amount placed into the said 500 units due to their inherent amusement and fascination characteristics.” In light of this mixed purpose, the trial court may have believed that CWAF and its directors violated provisions of Illinois law that would not be in issue if a commercial enterprise distributed the wells for “amusement” purposes. Such speculation as to the trial court’s basis for its stated distinction goes to the merits of the cause of action, however, and is immaterial to the jurisdictional question.

Nor do we find persuasive the State’s attempt to justify the commercial/charitable distinction. As previously mentioned, the State asserts that the “stock-in-trade” of charitable corporations is the use of well-known names to encourage donations. Under this reasoning, the “well-known” names of Kennedy and Shoff enhanced the credibility of the program and induced others to participate.

Even assuming that their names enhanced the credibility of the program, we find this argument meaningless as a basis upon which to distinguish between charitable and noncharitable corporations. Jerry Lewis’ telethons on behalf of muscular distrophy may persuade some viewers to donate money, just as Michael Jordan’s television commercials may persuade children to lobby their parents for hundred-dollar footwear. The jurisdictional analysis central to this case, however, does not depend upon such considerations as whether name recognition induces people to donate money to charities. A person who purposely attaches his or her name to a scam in the hopes of making money is in a different position, of course, and such a person might well be subject to the jurisdiction of the State in which the fraud was perpetrated. But the record before us does not justify such an inference. See also Olinski v. Duce (1987), 155 Ill. App. 3d 441, 508 N.E.2d 398 (holding that jurisdictional contacts were not satisfied by the mere fact that a Texas defendant’s recognized name or logo was placed on equipment his companies sold to Illinois and a resident of the State was injured on the equipment).

For the foregoing reasons, we reverse the orders that denied Kennedy’s and Shoff’s motions to quash service of summons and remand for entry of an appropriate order dismissing these two defendants from the lawsuit.

Reversed and remanded.

JIGANTI, P.J., and McMORROW, J., concur.