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    PAMELA HARRISON, Plaintiff-Appellant and Cross-Appellee, v. SEARS, ROEBUCK & COMPANY et al., Defendants-Appellees and Cross-Appellants.
    Fourth District
    No. 4—89—0031
    Opinion filed October 5, 1989.

      Kenneth E. Baughman and L. Keith Hays, both of Montieello, for appellant.
    Arnstein & Lehr, of Chicago (Arthur L. Klein, Adele Rapport, and C. Vincent Maloney, of counsel), for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Sears, Roebuck and Company (Sears) discharged plaintiff Pamela Harrison due to an incident involving misuse of the employee discount privilege. Plaintiff sued Sears and Bruce Stark, defendants, alleging wrongful discharge, breach of implied covenant of good faith and fair dealing, breach of a right to fair procedure prior to termination, and for mental suffering caused by the reckless breach of her employment contract. Additionally, she sued defendants for libel. The two causes were combined in the trial court. Defendants filed a petition for sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). The trial court granted defendants’ summary judgment on the contract and libel claims. It denied sanctions pursuant to section 2 — 611 of the Code.

Plaintiff appeals arguing the trial court erred in granting summary judgment on her breach of contract claims, her breach of implied covenant of good faith and fair dealing claim, her right to fair procedure claim, her claim for mental suffering, and her libel claims. Defendants cross-appeal arguing the trial court abused its discretion in denying their motion for sanctions.

We affirm.

FACTS

Plaintiff began working at Sears’ Danville store on October 8, 1974. Prior to being hired, she completed a standard employment application. Plaintiff’s employment was terminated on January 13, 1986, as the result of an alleged abuse of the employee discount policy occurring on January 8, 1986. In all counts of her second-amended complaint, plaintiff alleged that in exchange for employment, she agreed to abide by the rules of her employer. Therefore, she concluded the rules and regulations of Sears were incorporated into her written employment contract. Plaintiff also alleged she was discharged for “mistakenly” applying an employee discount to a customer’s purchase.

In count I, plaintiff alleged that Sears breached its express employment contract by failing to follow remedial procedures set forth in its rules. In count II, plaintiff alleged Sears’ actions, as stated in count I, breached its express contract with plaintiff. Plaintiff further alleged that as a result of the adoption of the rules and regulations and plaintiff’s loyal services to defendant, defendant owed her an implied duty of good faith and fair dealing. Plaintiff asserted defendant violated this duty by arbitrarily and capriciously discharging her to reduce its payroll costs, without granting her the rights allowed under the rules. In count III, plaintiff alleged Sears discharged her and violated her implied right of fair procedure. Plaintiff asserted Sears should have afforded her a fundamentally fair opportunity to respond to the charges against her prior to dismissal. In count IV, plaintiff realleged the breach of contract alleged in count I. Plaintiff alleged the reasons stated for the discharge were a wilful violation of the discount privilege, theft, and that plaintiff was guilty of wilful misconduct and dishonesty. The reasons were communicated to plaintiff and her fellow employees in reckless and wanton disregard for plaintiff’s mental well-being. Sears had reason to know its breach of contract would cause mental suffering, and plaintiff sustained mental suffering. Therefore, plaintiff requested compensation for the mental suffering caused by the breach of the employment contract.

Plaintiff on appeal has abandoned count III of her libel complaint. In count I of the libel complaint, plaintiff alleged Sears libeled her by submitting her written statement, parts of the Personnel Policy and Procedural Manual (Manual), and an inaccurate employee discount statement to the Illinois Department of Labor in connection with a hearing on unemployment benefits. Plaintiff’s benefits were denied. Plaintiff alleged Sears failed to investigate the accuracy of the charges, had no reasonable basis to believe they were true, the statements were made to annoy plaintiff, and Sears deliberately failed to verify the charge. In count II of the libel complaint, plaintiff alleged Stark, the security manager at the Danville store, induced or tricked plaintiff into signing a statement, which contained an admission of theft. Stark communicated the “untrue statement” to his supervisor. In count IV of the libel complaint, plaintiff alleged Sears was responsible for Stark’s actions.

In her deposition, plaintiff stated that on January 8, 1986, the store was having a 50% off sale. Darlene Beasley, formerly plaintiff’s sister-in-law, and her son were staying with plaintiff for a week on a temporary basis. Beasley selected merchandise and purchased the merchandise in the hardware department, where plaintiff and Terri Wiese worked. Plaintiff had two items at the hardware checkout with her which she wanted to buy. However, she did not wish to write another check. Therefore, Beasley was going to purchase the items for plaintiff. Plaintiff told Beasley to bring her items to hardware, and she would ring up the purchase.

Plaintiff stated Wiese offered to ring the sale so plaintiff could get her discount. While Wiese was ringing the sale, a customer interrupted. Wiesé told plaintiff to finish ringing the sale. While plaintiff was completing the transaction, she noticed Wiese had made an error in calculating the markdown. Therefore, plaintiff voided Wiese’s sale. Plaintiff further stated that “without thinking” she entered her own employee identification number in the register, rerang the items, and gave Beasley an employee discount on the entire purchase. Plaintiff gave Beasley one copy of the receipt and signed the other copy. After Beasley left the store, plaintiff realized she rang her own sale. She knew she was wrong in ringing up her own sale. Plaintiff stated Stark asked her to come to the office and discuss the matter, had her write out a statement about what happened, and accused her of giving Beasley an unauthorized employee discount. Plaintiff admitted giving Beasley the discount but told Stark it was a mistake.

Plaintiff further stated that she knew she could not ring her own discount purchase and she alone was supposed to get a discount. Beasley should not have received a discount on the items she purchased. Plaintiff’s items were intermingled with Beasley’s items and because she was rushed she entered her employee number and completed the transaction.

The applicable discount policy was printed on plaintiff’s check stubs. It stated:

“The employee whose signature appears below is entitled to the regular employee discount in any store of this company on purchases for his/her personal use or for the use of members of his/her immediate family living with or supported by him/ her.”

Plaintiff stated she had not received a pamphlet (Getting Acquainted With Sears) explaining the discount policy. No one explained the discount policy to her, and she never read the discount policy statement on her check stub. She thought anyone living in her immediate household was eligible for her discount, including, visitors. However, she knew Beasley was not entitled to the discount. On January 13, 1986, plaintiff told several employees at the store that she had been fired and explained why. Plaintiff stated she never saw the Manual while employed by Sears. After she was terminated, her attorney sent her copies of the rules and regulations stated in the Manual.

Plaintiff’s supervisor, Harold Hobaugh, and Stark observed Wiese initiate the sale to Beasley. In his deposition, Stark stated he was in hardware chatting with Hobaugh. When he looked at Wiese, she was making a sale of several items of clothing to a woman. When he looked again, plaintiff was completing the sale Wiese had started. He observed plaintiff remove a ticket from the register, take money from the customer and sign one copy- of the receipt. Sears had a duplicate receipt system. The only time one receipt is kept and signed is for an employee purchase. Stark did not recognize the customer as an employee and thought something might be wrong.

Stark and Hobaugh proceeded to the computer room to check the computer record of the sale. It showed plaintiff had given an employee discount on the sale. Therefore, Stark and Hobaugh went to the cash register and removed the retained receipt. Plaintiff had signed the receipt, which indicated she had given someone else her discount. Stark then talked with Wiese.

Subsequently, Stark asked plaintiff to discuss the incident. Stark said plaintiff stated the customer was formerly her sister-in-law, had moved in temporarily with plaintiff, and plaintiff gave her the discount. Plaintiff also stated she knew she was wrong. Stark asked plaintiff to make a written statement about what happened. He copied a form out of the security manual for her to use. Plaintiff told Stark one or two of the items were hers, and it was a mistake. Stark did not ask plaintiff if she had tried to contact management about correcting the mistake and was unable to reach Beasley to talk to her. Stark reported the incident to the personnel manager, Tom Mullins, and to the store manager, Richard Giacomo. A few days before the unemployment compensation hearing, Stark talked to a representative from Sears management. He had not heard the matter discussed by other employees in the Danville store.

Hobaugh’s deposition statement regarding the incident supported Stark’s deposition. Hobaugh discussed the incident with Giacomo and Mullins. He did not talk to anyone else about it.

Mullins, in his deposition, stated he and Giacomo recommended plaintiff be dismissed. The action was approved by the St. Louis office. Mullins discussed the incident with Hobaugh, Stark, Giacomo, and Cathy Parker, his assistant. He also discussed it with Carol Miller, who had witnessed plaintiff’s interview with Stark. He told four employees they needed to be available for a deposition but did not discuss the facts of the incident with them. Mullins based his dismissal recommendation on the written statements, Stark and Hobaugh’s observations, and the nature of the violation. He did not independently investigate the statement.

Giacomo discussed the incident with Stark, Hobaugh, and Mullins. He did not personally investigate the details or discuss them with plaintiff. He approved Mullins’ recommendation based on the information he had. The cause of plaintiff’s dismissal was generally known by the employees. He did not make an effort to keep it a secret.

ANALYSIS

Plaintiff asks this court to review the propriety of the trial court’s ruling on defendants’ motion for summary judgment. Summary judgment is properly granted if the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Cronic v. Doud (1988), 168 Ill. App. 3d 665, 523 N.E.2d 176; Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 529 N.E.2d 40.) The materials on file are interpreted most favorably toward the nonmovant. (Crawford County State Bank v. Doss (1988), 174 Ill. App. 3d 574, 528 N.E.2d 436.) The purpose of summary judgment is not to try issues of fact but to determine whether triable issues exist. The opponent need not prove his case upon a summary judgment motion. However, he must present some factual basis that would arguably entitle him to judgment. (Fuentes, 174 Ill. App. 3d 864, 529 N.E.2d 40.) Construing a contract is a matter of law suitable for summary judgment. Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30.

BREACH OF CONTRACT

Plaintiff in her pleadings and argument agrees that she is an at-will employee pursuant to an express employment contract. The parties rely on the employment application as forming the basis of the express contract. Under Illinois law, a written or oral employment contract which does not specify a term of employment creates an employment relationship which lasts at the will of the parties. (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 384 N.E.2d 91.) The employer or the employee may terminate the relationship at any time with or without cause and without incurring liability. (Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 485 N.E.2d 312; De Fosse v. Cherry Electrical Products Corp. (1987), 156 Ill. App. 3d 1030, 510 N.E.2d 141.) This general rule is subject only to independent contract or statutory provisions and concepts of retaliatory discharge. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314 (recognizing that parties may modify an at-will employment by an employee handbook or policy if contract-formation requirements are met); Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876, 877 (recognizing the tort of retaliatory discharge).) An employment contract may specifically incorporate by reference the terms of a policy and procedural manual. Piper v. Board of Trustees (1981), 99 Ill. App. 3d 752, 755, 426 N.E.2d 262, 264 (notification of employment stated employment was “ ‘subject to the provisions of *** and to the bylaws, policies, rules and regulations of the Board of Trustees’ ”).

Plaintiff initially asks this court to construe her employment application as a contract and determine the Manual became a part of it. The contract states:

“In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck & Co., and my employment and compensation can be terminated, with or with out cause, and with or without notice, at any time, at the option of either the Company or myself. I understand that no unit manager or representative of Sears, Roebuck & Co., other than the president or vice-president of the Company, has any authority to enter into any agreement for employment for any specific period of time, or to make any agreement contrary to the foregoing.” (Emphasis added.)

Plaintiff’s basic premise, that the language of the application expressly incorporates the Manual, is not well-founded. The primary objective of contract construction is to give effect to the intention of the parties. This intention should be ascertained from the words used in the contract. (Srivastava, 168 Ill. App. 3d 726, 523 N.E.2d 30.) A contract’s meaning must be determined from the words or language used in the document. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 458 N.E.2d 480.) Where the terms in an agreement are clear and unambiguous, they will be given their ordinary and natural meaning. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897.) The entire agreement should be considered (Johnstowne, 99 Ill. 2d 284, 458 N.E.2d 480; Srivastava, 168 Ill. App. 3d 726, 523 N.E.2d 30), and a construction which is contrary to the plain meaning of the words should be avoided (Johnstowne, 99 Ill. 2d 284, 458 N.E.2d 480). For a document to be incorporated by reference, the contract must show an intent to incorporate the other document and make it a part of the contract. Golen v. Chamberlain Manufacturing Corp. (1985), 139 Ill. App. 3d 53, 487 N.E.2d 121.

In the instant case, plaintiff argues the phrase “I agree to conform to the rules and regulations of Sears” constitutes an express incorporation by reference of the Sears Manual. Initially, there is no agreement by Sears to abide by the rules, only an agreement by plaintiff to do so. Second, the application does not contain any language indicating that it is “subject to” the provisions of the Manual. In Piper, the case plaintiff relies upon, the notice of employment specifically stated it was subject to the rules and regulations of the Board.

Additionally, in Weiner v. McGraw-Hill, Inc. (1982), 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, relied upon by plaintiff, the application expressly stated it was subject to the policy manual. Some expression of both parties’ intent to be bound by the attached document or the incorporated document is necessary. Mere reference to the other document is not sufficient to incorporate it into the contract. In the instant case, plaintiff admitted she did not know that the Manual existed until after her termination. It was not available to her when she worked at Sears. The managerial persons indicated that the Manual was a guide used by management which was not provided to the employees. Therefore, if one considers the circumstances of this case, the document could not have been incorporated by reference since it was not available to both parties, the reference to it was not clear and unequivocal, and the rules were only incorporated inasmuch as plaintiff agreed to abide by them. 17A C.J.S. Contracts §299, at 136-37 (1963).

Plaintiff’s contention, therefore, that the language in the employment application expressly incorporated the rules and regulations set forth in the Manual into her employment contract is erroneous. The trial court did not err in granting summary judgment on this question.

However, even though the application does not expressly incorporate the Manual, statements found in an employee handbook and policy manual may create enforceable contract rights. (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) In Duldulao, the court held that an employee handbook or policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe an offer had 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 continuing to work after learning of the policy statement. (See also De Fosse, 156 Ill. App. 3d 1030, 510 N.E.2d 141.) Duldulao did not involve a written employment contract.

In Toussaint v. Blue Cross & Blue Shield (1980), 408 Mich. 579, 292 N.W.2d 880, the court held an employee personnel manual could give rise to contractual rights without evidence the parties agreed that the policy would create employee rights, without knowledge of the details of the policy by the employee, and without the employee learning of the manual until after his hiring. The Toussaint court also specifically stated that an employer could preserve the at-will employment situation by having the employee expressly acknowledge that his employment was terminable at will.

In the instant case, neither the Duldulao or Toussaint line of cases can be said to apply. Plaintiff admits she did not know of the Manual prior to her termination, it was not disseminated to employees, and she did not rely upon it. We note Toussaint specifically stated that contracts such as the Sears contract would preserve the traditional at-will employment relationship. Several courts, interpreting the Sears application in light of Toussaint, have held the employee handbook and manual did not modify the at-will statement in the application. (See Reid v. Sears, Roebuck & Co. (6th Cir. 1986), 790 F.2d 453; Ringwelkski v. Sears, Roebuck & Co. (E.D. Mich. 1985), 636 F. Supp. 519; Batchelor v. Sears, Roebuck & Co. (E.D. Mich. 1983), 574 F. Supp. 1480; Summers v. Sears, Roebuck & Co. (E.D. Mich. 1982), 549 F. Supp. 1157; Novosel v. Sears, Roebuck & Co. (E.D. Mich. 1980), 495 F. Supp. 344.) Cases involving similar statements in other employers’ employment contracts reach the same result. See Shelby v. Zayre Corp. (Ala. 1985), 474 So. 2d 1069; Holloway v. K-Mart Corp. (1983), 113 Wis. 2d 143, 334 N.W.2d 570.

Plaintiff relies upon Tiranno v. Sears, Roebuck & Co. (1984), 99 A.D.2d 675, 472 N.Y.S.2d 49. In Tiranno, the plaintiff was discharged from a position as a parts manager for Sears. He argued Rule 2301(b) in the Manual restricted Sears’ ability to terminate him. Plaintiff relies on the same provision. The Tiranno court looked at the rule, stated it could be interpreted as requiring just cause for termination, and held a triable issue of fact existed. The Tiranno court did not discuss the problem of incorporating the Manual into the contract, but assumed it was incorporated. The validity of the Tiranno decision has been questioned by other New York courts and by the Federal court. (Murphy v. American Home Products Corp. (1983), 58 N.Y.2d 293, 448 N.E.2d 86; Wright v. Cayan (2d Cir. 1987), 817 F.2d 999, 1005, cert, denied (1987), 484 U.S. 853, 98 L. Ed. 2d 112, 108 S. Ct. 157.) We also decline to follow the Tiranno case.

Although the agreement referred to the rules and regulations, it did not expressly incorporate them for all purposes. Neither the reasoning of Duldulao nor Toussaint applies to incorporate the rules and regulations. Therefore, the trial court correctly granted summary judgment to defendants on the breach of employment contract claim. Plaintiff’s other contention, that disputed factual matters concerning lack of appropriate remedial procedures prior to termination of her employment precludes summary judgment, need not be addressed. An at-will employment may be terminated for any or no reason, with or without cause. Therefore, remedial measures were not required.

IMPLIED COVENANT OF GOOD FAITH

Plaintiff next argues the trial court erred in granting summary judgment to defendants on her breach of the implied covenant of good faith and fair dealing claim. Plaintiff argues this court should hold as a matter of law that an independent contract and/or tort action for breach of an implied covenant of good faith and fair dealing exists in the employment at-will setting. Plaintiff acknowledges that no Illinois court has held that such an action exists in the employment contract setting; however, she notes that several courts have acknowledged the possible existence of the action in dicta. First, plaintiff asks this court to hold as a matter of law that a tort action, with punitive damages, is available based upon an expansion of the holding in Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75, and the dissenting opinions in Foley v. Interactive Data Corp. (1988), 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211.

In Ledingham, the Fifth District Appellate Court held that an insured and insurer in a health-insurance context have a duty to deal fairly with each other. The court noted that they must deal in good faith. The court found the failure to act in good faith by the insurer constituted a tort as well as a breach of contract. The court noted the special relationship which exists between an insured, who must contract for insurance and rely upon it, and the insurer. In Disario v. Enesco Imports Corp. (1987), 165 Ill. App. 3d 901, 520 N.E.2d 766, the First District Appellate Court held the employee did not have an independent action for tortious breach of the implied covenant of good faith and fair dealing. The court specifically declined to expand Ledingham to the employment at-will situation. (See also Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998 (First District Appellate Court); Foley, 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211.) Under Illinois precedent, no action for tortious breach of an implied covenant of good faith and fair dealing exists in the employment at-will setting. We decline to expand Illinois law. Therefore, the trial court did not err in granting summary judgment. We need not address plaintiff’s contentions that punitive damages are available in the tort action for breach of implied covenant of good faith and fair dealing and that the trial court erred in failing to allow her leave to amend count II to add details of wilful and wanton conduct.

However, plaintiff now asks this court to recognize an independent breach of contract action in the present situation. Implicit in every express contract in Illinois is the promise that the parties will act in good faith. (Cuerton v. Abbott Laboratories, Inc. (1982), 111 Ill. App. 3d 261, 443 N.E.2d 1069; Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568, 366 N.E.2d 561.) There is apparently a divergence of opinion in the appellate districts as to whether the duty creates or could create an action for breach of contract in an at-will employment setting. In Powers v. Delnor Hospital (1985), 135 Ill. App. 3d 317, 321-22, 481 N.E.2d 968, 972, Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 911, 508 N.E.2d 1139, 1142, and Gordon v. Matthew Bender & Co. (N.D. Ill. 1983), 562 E Supp. 1286, 1289-90, the Second and Fifth District Appellate Courts and the Federal District Court held that the duty of good faith and fair dealing does not create an independent action for breach of contract in the employment at-will setting. The implied covenant is not interpreted as limiting the right of the employer to discharge an at-will employee. Scott v. Sears, Roebuck & Co. (7th Cir. 1986), 798 F. 2d 210.

In Scott, the court relied upon Criscione. In Criscione, the court affirmed the dismissal of plaintiffs complaint alleging wrongful discharge. Plaintiff did not allege a written employment contract, but alleged his discharge constituted a breach of ..the implied covenant of good faith. The court acknowledged that good faith was implied in every contract. It noted no factual allegations supported the plaintiff’s claim and thus found plaintiff had not stated a cause of action for breach of contract. Plaintiff argued his dismissal for other than legitimate business reasons constituted a bad-faith breach of contract. The court in dicta expressed reservations about placing limitations on at-will employment. Criscione, 66 Ill. App. 3d at 669-70, 384 N.E.2d at 95.

In Dykstra v. Crestwood Bank (1983), 117 Ill. App. 3d 821, 825-26, 454 N.E.2d 51, 55, plaintiff alleged an oral contract of employment existed between him and defendant. Plaintiff further alleged the contract contained an implied covenant that defendant would act in good faith and only discharge plaintiff for good cause, which defendant breached. The appellate court noted plaintiff waived this argument. However, it stated the complaint was factually insufficient to state this cause of action. The First District Appellate Court noted its reluctance to place limitations on at-will employment relationships.

Therefore, the second district in Powers, fifth district in Hugo, and the Federal courts in Scott and Gordon state that breach of the implied covenant of good faith and fair dealing does not create an independent cause of action in the at-will setting. However, in view of Disario and Dykstra, the first district, although it has never recognized this action as sufficiently pleaded, apparently does accept that if sufficiently pleaded, it would state a cause of action.

The better reasoning appears to be that which holds no independent breach of contract action exists for violation of this covenant in the employment at-will setting. The good-faith obligation in an express contract aids in defining and modifying the duties which grow out of the contract. It is a construction aid. (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998.) Thus, the implied covenant furthers the agreement of the parties. No obligation should be implied which is inconsistent with the terms of the . contract. An employment at-will contract gives the employer the right to terminate the employment at any time. Therefore, it is incongruous to imply a covenant which restricts that right. (See Gordon, 562 F. Supp. at 1289-90; Murphy, 58 N.Y.2d 293, 448 N.E.2d 86.) We conclude no. independent action sounding in contract for breach of an implied covenant of good faith and fair dealing exists in the employment at-will setting.

Plaintiff next argues that applying a covenant of good faith and fair dealing in some service contracts but not in an employment at-will contract violates equal protection. Plaintiff does not refer to any cases which support her theory. Therefore, this court need not consider the argument. Since plaintiff has not established that the court’s use of the contract construction principles in her situation differs from the court’s use of those principles in other similar situations, and that no rational reasoning exists for the disparate treatment, she has not shown an equal protection violation.

RIGHT OF FAIR PROCEDURE

Plaintiff next urges this court to reverse the trial court and recognize a new tort action in Illinois. In California and a few other States, the courts have recognized that under certain circumstances, resident physicians are entitled to fair procedure prior to their dismissal from the hospital residency program. The rationale for this rule is based upon the fact that certain organizations have the authority to end the pursuit of a medical or dental career. (Ezekial v. Winkley (1977), 20 Cal. 3d 267, 572 P.2d 32, 142 Cal. Rptr. 418; Northeast Georgia Radiological Associates v. Tidwell (5th Cir. 1982), 670 F.2d 507, 510-11 (and cases cited therein).) The right of fair procedure is analogous to the due process rights stated in Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.

No case cited to us has expanded the right of fair procedure to a nonmedical employee. Additionally, plaintiff, who stated her employment was at will, could not have had a “property interest,” which presupposes more than an expectancy in continued employment. This situation is not analogous to that of a professional person whose dismissal from a training program will effectively preclude the practice of his profession. Accordingly, we decline the opportunity to create a new tort action in Illinois. The trial court did not err in granting defendants’ summary judgment on this issue.

MENTAL SUFFERING

Plaintiff next argues the unjustified accusation of dishonesty which breached her employment contract should give rise to damages for mental suffering. In Petrowsky v. Family Service of Decatur, Inc. (1987), 165 Ill. App. 3d 32, 518 N.E.2d 664, plaintiffs sought recovery for mental suffering caused by an adoption agency’s mishandling of the adoption of the plaintiffs’ child. The court noted that ordinarily damages for breach of contract do not include compensation for mental suffering. Exceptions exist where the breach was wanton or reckless and caused bodily harm and where defendant had reason to know when the contract was entered that its breach would result in mental suffering. The court agreed with plaintiffs’ argument that due to the nature of the adoption proceedings, the parties are especially susceptible to emotional trauma. Therefore, the court held the agency must have been aware of this element and have anticipated that a breach of contract might cause mental suffering. See also Maere v. Churchill (1983), 116 Ill. App. 3d 939, 452 N.E.2d 694.

Plaintiff relies on Petrowsky and argues Sears should have been aware when it entered the employment contract that a breach of the contract would cause mental suffering. Generally, the proper measure of damages when an employee has been wrongfully discharged is the agreed wages during the contract term, reduced by the wages earned during the same period which could not have been earned in the same employment. (Feldstein v. Guinan (1986), 148 Ill. App. 3d 610, 499 N.E.2d 535.) Damages for mental suffering caused by breach of contract are ordinarily not recoverable. (Valentine v. General American Credit, Inc. (1984), 420 Mich. 256, 362 N.W.2d 628; Maere, 116 Ill. App. 3d 939, 452 N.E.2d 694.) The trial court correctly granted summary judgment on this issue.

LIBEL

Plaintiff next argues the trial court erred in granting defendant summary judgment on her libel claims. Essentially, plaintiff raises two arguments concerning libel. Plaintiff contends Sears communicated the form which she filled out, highlights of excerpts of the policy procedure manual, and a statement of reasons for her termination to the Illinois Department of Labor. She contends these communications libeled her. She asserts the statements were false, accused her of theft, were transmitted without adequate investigation to determine her side of the story, and the validity of her contention that she could have made a cash register mistake should have been investigated. Second, plaintiff argues that the transmission of a written statement by Stark to his supervisor, Mullins, constituted libel.

Section 1900 of the Unemployment Insurance Act states in part:

“All letters, reports, communications, or any other matters, either .oral or written, from an employer *** to the Director *** which shall have been written or made in connection with the requirements and administration of this Act *** shall be absolutely privileged and shall not be made the subject matter or basis for any suit for slander or libel in any court of this State, unless the same be false in fact and malicious in intent.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 640.

Considering the plain language of the statute, information provided by the employer is absolutely privileged unless it is false in fact and malicious in intent. Therefore, to overcome the privilege, plaintiff needed to establish falsity and malice. Plaintiff concedes on appeal that Stark’s transmission of her statement form to Mullins was subject to a qualified privilege. The question then becomes whether the trial court erred in determining as a matter of law that plaintiff had not presented any evidence of falsity or malice which would present a factual dispute on the issue of abuse of the privilege. Since the same factors resolve both the libel claim against Sears for transmission of the materials to the Illinois Department of Labor and the libel claim against Stark and derivatively against Sears, they will be analyzed together.

The elements of qualified privilege are (1) good faith by the defendant; (2) an interest or duty to be upheld; (3) a statement limited to that purpose; (4) a proper occasion; and (5) publication in a proper manner to proper parties. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 349-50, 243 N.E.2d 217, 221.) The qualified privilege may be overcome by a showing of actual malice. Actual malice may be found where the person making the communication had reason to believe it was false and failed to investigate further. (Zeinfeld, 41 Ill. 2d 345, 243 N.E.2d 217; Colson v. Stieg (1980), 86 Ill. App. 3d 993, 408 N.E.2d 431; Jones v. Britt Airways, Inc. (N.D. Ill. 1985), 622 F. Supp. 389.) If the statement is libelous per se, malice may be imputed from the words themselves. (Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1051, 340 N.E.2d 539, 543.) A false statement is libelous per se if it imputes to the plaintiff the commission of a crime. (Sivulich v. Howard Publications, Inc. (1984), 126 Ill. App. 3d 129, 466 N.E.2d 1218.) However, the innocent construction rule applies in determining whether the statements or charge may impute a criminal offense. Sivulich, 126 Ill. App. 3d 129, 466 N.E.2d 1218.

The statement plaintiff completed stated:

“On this date Mr. Stark has discussed with me certain facts pertaining to theft, violation of Company policy, etc., as follows:
Darlene Beasley came down stairs told me she had are [sic] items and had to go to the bank and she said there were a lot of people up stairs so I told her to bring the item down stairs when she came back and Terri would ring them up for me. Terri started to ring the item up and man ask her a question and she went to show him the[n] I Finish the sale for her I had a void and then without thinking I rang the sale in my number and give her my discount for the items I had.
I wish to state at this time, I committed the above; I realized I was taking money and/or merchandise which was the rightful property of Sears, Roebuck & Co. and that I had no intention of returning the money and/or merchandise described above.
I have read this statement, the contents of which are true facts, that have been discussed with Mr. Stark and me on this date.
I have made this statement of my own free will. No threats or promises were made to me as an inducement to give this statement.” (Italicized language reflects material plaintiff wrote in on form provided.)

In this court, plaintiff focuses only upon the typed paragraph beneath her handwritten (italicized) statement. She asks this court to disregard both her signature, which she claims was made under duress, and the handwritten portion of the statement. She contends she did not read the typed paragraph, and it was an accusation of theft by Stark and through him Sears. Plaintiff states, therefore, that the form is not her statement but Sears’ statement.

Materials which are alleged to be libel per se must be read in context. If one reads the entire form, it is apparent that a violation of the discount policy was at issue. Plaintiff’s own statement clarifies that theft was not at issue. The trial court made this finding in ruling on the summary judgment motion. Malice cannot, thus, be inferred from the statement. Plaintiff does not argue her handwritten admission is false in fact.

Plaintiff focuses on a failure of Sears and Stark to investigate as evidence of malice. However, one need investigate only when one has reason to believe the materials are not true. In the instant case, a detailed investigation did occur, although Stark was unable to contact Beasley. Second, plaintiff relies on the Manual as showing what should have been done. She argues that the Manual’s procedures demonstrate a failure to investigate. Since the Manual’s procedures do not apply in this case, these steps should not be used as the basis of a finding of malice.

The trial court did not err in granting summary judgment on the libel claims. Plaintiff has not presented any evidence that her statement was false. Nor has she established malice on the part of Stark or Sears. Therefore, the communications are privileged.

CROSS-APPEAL

Defendants filed a petition for sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). Defendants argue the trial court abused its discretion in denying the motion. Section 2 — 611 of the Code requires that an attorney sign pleadings and other papers filed with the court. The signature constitutes a certificate by him that he has read the document, has made a reasonable inquiry into its basis, believes it is well-grounded in fact, and warranted by the law or a good-faith argument for the extension of the existing law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611; People v. King (1988), 170 Ill. App. 3d 409, 524 N.E.2d 723.) The statute also precludes lawsuits brought for an improper purpose. (Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374.) The section is intended to prevent counsel from making allegations not well-grounded in fact or law. (Marathon Finance Co. v. Pioneer Bank & Trust Co. (1988), 168 Ill. App. 3d 148, 153, 522 N.E.2d 248, 252.) After a review of the instant case, we cannot say the trial court abused its discretion in denying sanctions.

For the above reasons, we affirm the trial court.

Affirmed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENJAMIN F. CAMERON, Defendant-Appellant.
    Fourth District
    No. 4—89—0071
    Opinion filed October 5, 1989.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Leonard, State’s Attorney, of Mt. Sterling (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On September 14, 1988, following a jury trial in the circuit court of Brown County, defendant Benjamin F. Cameron was convicted of (1) unlawful possession with the intent to deliver more than 15 grams of cocaine; (2) unlawful delivery of one gram of cocaine; (3) unlawful possession of one gram of cocaine; (4) aggravated battery of a peace officer; (5) unlawful possession of 10 to 30 grams of cannabis; and (6) fleeing or attempting to elude a police officer. He was subsequently sentenced to various concurrent terms of imprisonment with a maximum of eight years for unlawful possession with intent to deliver and was fined a total of $3,168.35.

On appeal, defendant maintains (1) the circuit court denied him his right to confront witnesses against him by limiting cross-examination; (2) prejudicial hearsay was improperly admitted; (3) the jury was improperly instructed regarding the inference of intent to deliver from the possession of contraband in amounts in excess of that for personal use; (4) the sentence for unlawful possession of cocaine with intent to deliver was based upon improper factors in aggravation; (5) the evidence did not support his convictions of either aggravated battery or fleeing and eluding a peace officer; and (6) he is entitled to credit against the fines imposed. We order sentence credit as later described. Otherwise, we affirm.

The State’s evidence at trial showed that between August and September of 1987, Gerald Kempf of the Illinois Department of Criminal Investigations, Marty Winston, a Schuyler County deputy sheriff, and various law enforcement officers of Brown County conducted a surveillance. On August 30, 1987, pursuant to a plan, Mark Volk, an informant with drug charges pending against him, made a telephone call to defendant stating he, Volk, had a prospective cocaine purchaser. Volk and Winston then drove to defendant’s house in Mt. Sterling. Kempf and Mt. Sterling Police Chief David Lantz followed in another vehicle. Volk went to the door and knocked. Defendant opened the door and gave Volk an envelope containing a substance later determined to be cocaine. Volk returned to the car. He and Winston then returned to defendant’s door and negotiated a price of $75 for the envelope and two other envelopes also containing substances later determined to be cocaine. This was the principal evidence to support the conviction for unlawful possession and unlawful delivery of one gram of cocaine.

The other convictions arose from occurrences on September 2, 1987. The State’s evidence described the following chain of events. State Trooper Craig Walker twice stopped a truck driven by defendant. The second time, after Walker indicated he was going to search the vehicle, defendant obtained permission to enter the truck to turn off the motor, but, instead, defendant sped away. Walker was standing next to the truck, and the truck doorjamb struck Walker’s wrist, knocking him back a few steps, and causing Walker to require medical treatment. The charge of aggravated battery was based on the injury to Walker. The fleeing and eluding charge was based on defendant’s conduct in driving away from Walker.

The State’s evidence also showed Winston and Kempf were nearby when defendant drove away from Walker. The three, in separate vehicles, then chased defendant and stopped after a chase of a short distance. A dog was taken along the route defendant had used to attempt to flee. The dog came upon a small bag which contained a substance, later shown to be 28 grams of cocaine. At the time the ground was wet with dew, but the bag was dry. Evidence was presented defendant had admitted to throwing a bag of cocaine from his truck during the chase but maintained the bag was much smaller and contained less.

Defendant did not present any evidence.

Prior to trial, the State filed a motion in limine to prevent defendant from presenting evidence or from commenting on a civil case filed by Terry Maltby against Schuyler County, the Illinois State Police, and Winston. The complaint in the case sought damages arising from an alleged misidentification by Winston of Maltby as a person who had delivered a controlled substance to a confidential agent. Defendant contended charges against Maltby had been dismissed after Maltby spent several months in jail. Defendant contended the pendency of the suit showed bias on Winston’s part to gain favor from the State by testifying favorably to the State. The circuit court granted the motion in limine. Defendant contends this limitation against his cross-examination of an important State witness violated his right to confront that witness.

Defendant cites People v. Phillips (1981), 95 Ill. App. 3d 1013, 1019, 420 N.E.2d 837, 841-42, in support of his contention the in limine ruling was error. There, the circuit court refused to allow an accused to cross-examine a police officer in regard to the fact the officer had previously been suspended by his superiors for improperly drawing his weapon and then filing a false police report. The police officer was a crucial State witness, and defense evidence indicated he may have improperly drawn his weapon at the time of the occurrence giving rise to the charge of attempted murder against the accused in that case. In reversing the subsequent conviction in that case, the appellate court held that the cross-examination should have been permitted. The court reasoned that evidence of the 15 suspensions for improperly drawing a gun showed the officer had a bias to give testimony which would absolve him of a further sanction arising from the case on appeal. The appellate court explained that the evidence was admissible to impeach the witness’ credibility but not to show his propensity to commit the conduct for which he had previously been suspended.

The refusal to permit a defendant to impeach a State’s witness by evidence of pending but unproved criminal charges to show a bias of the witness has been held to be reversible error. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526; see also People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835.) However, no case has been called to our attention where mere evidence of a civil suit against a law enforcement officer charging dereliction of duty unrelated to the case in issue has been held to be proper impeachment. In Phillips, the evidence refused concerned the existence of prior suspensions rather than pending charges. Testimony of bias which is remote or uncertain is not admissible. (People v. Hiller (1980), 92 Ill. App. 3d 322, 415 N.E.2d 1202.) Here, any alleged incentive on Winston’s part to give favorable testimony because of Maltby’s suit was remote and uncertain. The relationship between the instant case and the other public officials involved in the civil case was remote. For these reasons alone, the circuit court properly denied use of the requested evidence.

Moreover, the defense also sought to go into the question of whether, in fact, Winston had lied in the case against Maltby. To the extent this would be used to show his propensity to perjure himself here, the evidence was also inadmissible. When testimony of crime is offered to impeach the credibility of a witness, only conviction may be shown. Evidence of the actual commission of the offense is inadmissible. (Mason, 28 Ill. 2d at 400, 192 N.E.2d at 837.) To have permitted the introduction of Winston’s prior conduct into evidence would have initiated a lengthy side issue, which would have consumed a great amount of time and distracted the jury from the main issue of the case. People v. Kirwan (1981), 96 Ill. App. 3d 121, 126-27, 421 N.E.2d 317, 321.

In addition, we note defendant objected to the issuance of the in limine order but did not preserve any error by the making of a post-trial, motion. Had any error resulted, it would have been waived. People v. Armstrong (1983), 111 Ill. App. 3d 471, 478-79, 444 N.E.2d 276, 281.

Defendant next argues he was deprived of a fair trial by the admission of hearsay evidence concerning (1) telephone calls from an informant that defendant had recently purchased illegal drugs and was intending to dispose of them because he thought he was being watched by the police; and (2) one side of a telephone conversation, overheard by a police officer, in which the informant allegedly arranged the August 31 drug purchase.

The court allowed Kempf to testify over objections concerning his initial contact with an informant, a later call from the informant that defendant had purchased some cocaine, and that defendant was allegedly concerned the police were watching him, so he would have to dispose of the drugs. The court permitted the testimony with the limitation that the jury consider the evidence only for the purpose of showing how the officer received notice that a transaction was taking place. Defendant maintains that the prejudicial impact of this testimony, however, outweighed the probative value despite the limiting instructions.

Various appellate court decisions have held the testimony of witnesses, which would be hearsay if used to prove that the accused did the things attributed to him by the declarant, to be admissible, as long as the testimony is offered merely for the purpose of explaining police conduct. (People v. Sanchez (1987), 163 Ill. App. 3d 186, 516 N.E.2d 556; People v. Green (1985), 136 Ill. App. 3d 361, 483 N.E.2d 606; People v. Munoz (1982), 103 Ill. App. 3d 1080, 432 N.E.2d 370.) However, the trial court must carefully assess such testimony to ensure that it does not include more than is necessary to explain police conduct. A highly respected evidence text describes the theory upon which out-of-court statements are admitted to explain a course of police conduct and discusses the danger of misuse of such statements:

“In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted ‘upon information received,’ or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.” McCormick, Evidence §249, at 734 (3d ed. 1984).

We agree with the McCormick analysis and the concerns expressed there. This case is an example of when, while enabling the law enforcement officers to explain their presence and conduct, the court permitted testimony replete with improper hearsay. Because of the prevalence of this problem and the difficulties involved, we set forth in detail the manner in which we conclude the court should have handled the hearsay objection imposed here.

It was appropriate to permit Kempf to testify that he had a conversation with his confidential informant who told Kempf that defendant had gone to a tavern in Quincy to pick something up. It was not appropriate to permit Kempf to testify that the package to be picked up was cocaine.

It was appropriate to permit Kempf to testify to another conversation with his confidential informant who told Kempf that defendant was at a certain tavern in Quincy, that he had made his pickup, and that he was going to stay and have a beer before leaving. It was not appropriate to permit Kempf to testify that the package that defendant picked up was dope.

The above references to “cocaine” and “dope” were in no way necessary to explain police conduct, and, despite the limiting instructions which the court gave concerning these references, we are concerned that these references would likely be understood by the jury as pertaining to necessary elements of the crime for which defendant was being tried.

The admission of Kempf’s testimony containing these references was error. When an objection was first raised to Kempf’s testifying about what he was told by the confidential informant, the court should have conducted a hearing out of the presence of the jury to determine both the scope of these third-party out-of-court statements and the need for the jury to hear them. Had such a hearing been conducted in this case, the court could have directed that the improper portions of Kempf’s testimony be deleted, thereby permitting the State to provide its legitimate explanations for police conduct, while protecting the defendant against prejudicial hearsay statements. See Commonwealth v. Palsa (1989), 521 Pa. 113, 555 A.2d 808.

Under the circumstances of this case, the error resulting from the admission of the improper hearsay was harmless because of the uncontested and overwhelming nature of the evidence of the factual matters involved in the controlled substance offenses which the hearsay concerned.

Defendant next argues the trial court abused its discretion in giving, over objection, a nonpattern jury instruction regarding permissible inferences which could be drawn from the possession of contraband. That instruction provided:

“It is a reasonable inference that possession of an amount of contraband in excess of any amount which could be viewed for personal use is possessed with intent to deliver.”

This instruction involved the charge defendant possessed, with intent to deliver, more than 15 grams of cocaine. The State contends the instruction is supported by the previously described evidence: (1) a bag shown to contain over 28 grams of cocaine was found along the route defendant fled while being chased by law enforcement officers; and (2) the testimony indicating defendant admitted throwing a bag containing a smaller amount of cocaine during that flight. The State also seeks to support the giving of the instructions by testimony of Kempf that a mere user of such contraband would be unlikely to have more than 3.5 grams on his or her person because of the cost. He further testified that 28 grams of cocaine would have a street value of approximately $2,800.

The instruction was not one contained in Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (IPI Criminal 2d). Defendant recognizes that the trial court has discretion to give nonpattern instructions that are simple, brief, impartial, and a nonargumentative statement of the law. Defendant argues that this instruction, however, was argumentative and a misstatement of the law.

We note, initially, that courts have repeatedly held that an intent to deliver may reasonably be inferred where the amount of the controlled substance possessed could not be viewed as designed for personal consumption (see, e.g., People v. Chrisos (1986), 151 Ill. App. 3d 142, 147, 502 N.E.2d 1158, 1162; People v. Schaefer (1985), 133 Ill. App. 3d 697, 702, 479 N.E.2d 428, 432-33). However, the theory of the IPI disapproves instructions, such as that here, which comment on particular types of evidence except as to those specifically approved. (IPI Criminal 2d No. 3.00.) Even after the decision in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, an instruction on the well-known inference proclaimed by that decision was included in the pattern instructions only with great reluctance. (See IPI Criminal 2d No. 13.21, Committee Note, at 295.) Notably, the pattern instruction on that subject explained the inference was not mandatory but one which the jury should determine whether to draw. IPI Criminal 2d No. 13.21.

We conclude the instruction in question should not have been given. However, it described an inference which the law permits a trier of fact to draw. In view of the strength of the evidence of defendant’s guilt, the giving of the instruction does not require reversal. Moreover, we note that, as with the court’s ruling on cross-examination of Winston in regard to civil litigation, here again, defendant failed to preserve any error by including the issue of the instruction in a post-trial motion.

We now turn to the question of the sufficiency of the evidence to prove defendant’s commission of the aggravated battery and fleeing or eluding a police officer offenses. Both charges arose from the conduct of defendant on September 2, 1987, when, after being stopped by Walker for a second time, defendant was permitted to get back into the truck so he could shut off the motor, and he then sped away.

We examine first the evidence of defendant’s commission of aggravated battery. The statute defining that offense provides, in part, that a person commits an aggravated battery when, in committing a battery, he:

“(6) Knows the individual harmed to be a peace officer, or a person summoned and directed by him, or a correctional institution employee, while such officer or employee is engaged in the execution of any of his official duties including arrest or attempted arrest.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6).)

A person commits a battery:

“[I]f he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a).

The indictment alleged defendant acted knowingly in battering Walker, known by defendant to be a peace officer. Section 4 — 5 of the Criminal Code of 1961 states in part:

“Knowledge. A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5.

As is well understood, the State had the burden of proving each element of defendant’s guilt beyond a reasonable doubt. The jury determined that proof was made here. We can only overturn that decision if, after examining the evidence in its light most favorable to the State, we conclude no reasonable trier of fact could find that proof had been made. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Here, the question at issue of the sufficiency of proof concerns the question of the strength of the proof that defendant possessed the mental state required for the offense of aggravated battery.

Proof of the state of mind of an accused is difficult, but an inference arises that a person intends the natural and probable consequences of his or her actions. (People v. Houston (1986), 151 Ill. App. 3d 718, 722, 502 N.E.2d 1174, 1176-77.) As we have indicated, at the time of the alleged aggravated battery, Walker was standing beside defendant’s truck while the motor continued to run. According to Walker, defendant reentered his truck from the passenger side after having stated he was entering to turn off the motor. The evidence indicated the door on the passenger side remained open while defendant put the vehicle into gear and drove rapidly off while Walker remained at the side of the truck. According to Walker’s testimony, one of the other officers present shouted to defendant, saying “don’t do it,” just before defendant sped off.

The evidence the passenger side door was open and that Walker was standing next to the truck in the open doorway when defendant suddenly started the truck and sped away is crucial to our decision that the evidence supported the verdict finding defendant guilty of aggravated battery. When this evidence is considered along with the other surrounding circumstances the jury could have found to exist, we conclude a reasonable jury could find beyond a reasonable doubt that defendant was (1) “consciously aware” the passenger side door was open (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5(a)); and (2) “consciously aware” Walker was “practically certain” to be hit by some portion of the vehicle when defendant drove off (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5(b)). Accordingly, we affirm the aggravated battery conviction.

Defendant also contends he was not proved guilty of fleeing and eluding the police beyond a reasonable doubt, because he stopped initially, after being signaled to do so, fled, drove a short distance, and stopped again.

Section 11 — 204(a) of the Illinois Vehicle Code provides:

“Any driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, wilfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer, is guilty of a Class B misdemeanor.” Ill. Rev. Stat. 1987, ch. 95%, par. ll-204(a).

Defendant maintains that to be guilty of violating section 11 — 204, the State must prove he failed or refused to obey the signal of a police officer to stop. Defendant notes that he stopped each time he was signalled to do so. He concludes, therefore, the State failed to prove an essential element of the crime charged. We disagree.

Section 11 — 204 of the Illinois Vehicle Code provides the offense is committed when a person having been given a signal to stop the vehicle that person is driving “wilfully fails or refuses to obey such direction, *** or otherwise flees.” (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 204(a).) The various ways the offense is committed are listed in the disjunctive. We conclude the offense occurs even though the accused obeys the direction to stop but then, before the purpose of the stop is complete, flees. The evidence supported defendant’s conviction for a violation of section 11 — 204 of the Illinois Vehicle Code.

Defendant next contends the trial court abused its discretion in sentencing him to eight years’ imprisonment for possession of cocaine with intent to deliver. The conviction of this Class X felony could have resulted in a term of imprisonment of 6 to 30 years. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1.

In imposing sentence, the trial court noted (1) deterrence was the principal factor in aggravation; and (2) the “harm” involved in this case, in selling drugs, did not relate to the physical harm of an individual but rather to society as a whole, and was a factor to be considered in sentencing. Defendant argues that such “harm” was implicit in the offenses and should not have been considered as an aggravating factor. He also argues that the court overemphasized the need to deter and protect society.

The record in this case, however, does not necessarily indicate that the trial court considered the harm of selling drugs as a factor in aggravation. Rather, the court’s remarks of such danger to society were in response to the defendant’s argument that no one was harmed. The court did not indicate it was giving a greater sentence because of the harm caused but was possibly rejecting the lack of harm as a mitigating factor. Thus, there was no error in the court’s statements.

The record does indicate the court considered the need for deterrence as the only substantial aggravating factor and deemed it to be quite important. Citing People v. Rhodes (1986), 141 Ill. App. 3d 362, 363-64, 490 N.E.2d 169, 170, People v. Huffman (1979), 78 Ill. App. 3d 525, 529, 397 N.E.2d 526, 529-30, and People v. Knowles (1979), 70 Ill. App. 3d 30, 388 N.E.2d 261, defendant maintains a sentencing court errs in considering the need for deterrence as an important factor. The rule relied upon by defendant originates in Knowles. We deem that theory to be invalid and overrule Knowles.

In Knowles, a student had committed arson (Ill. Rev. Stat. 1975, ch. 38, par. 20 — 1(a)) of two buildings of the college he was attending. The record indicated the defendant (1) was an 18-year-old freshman away from home for the first time; (2) had no prior criminal convictions; and (3) had come from a strong family environment. The sentencing judge noted those redeeming factors but concluded that to avoid deprecating the serious nature of the offense, a sentence of imprisonment was necessary. The court then imposed an indeterminate sentence of 2 to 12 years’ imprisonment. This court reversed and remanded for resentencing stating that when a court “acknowledges that the only purpose to be served by imprisoning a defendant is to possibly deter others from similar conduct, the sentence of imprisonment must be further reviewed.” (Emphasis in original.) Knowles, 70 Ill. App. 3d at 35, 388 N.E.2d at 265.

The Knowles opinion cited no authority for the rule pronounced. Nor did it refer to People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, where the court held that where a sentencing court had not considered improper matters, a sentence should not be overturned unless the court breached its discretion. The stated Knowles rule was followed by the Appellate Court for the Fifth District in People v. Thomas (1979), 76 Ill. App. 3d 969, 395 N.E.2d 601, and recited, on occasion, in other opinions. Similarly, in People v. Huffman (1979), 78 Ill. App. 3d 525, 397 N.E.2d 526, this court cited Knowles in reducing a sentence of imprisonment to probation where the court had stated that the purpose of the sentence was to avoid deprecating the seriousness of the offense. The Huffman precedent is nullified by that opinion’s reliance upon this court’s decision in People v. Cox (1979), 77 Ill. App. 3d 59, 396 N.E.2d 59, and certain then existing provisions of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1005-5-3.1, 1005-5-3.2, 1005-8-2). In People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, the supreme court reversed that decision and declared much of that legislation unconstitutional. In Rhodes, while setting aside a sentence because the court considered necessary statutory elements of the offense as aggravating factors, this court stated that deterrence was a factor which should be considered narrowly.

The lack of logic in a rule which requires review of any sentence where deterrence is considered as the sole aggravating factor is illustrated by the circumstances of this case. The court convicted defendant of an offense which was a Class X felony requiring the imposition of a mandatory term of imprisonment which could be not less than 6 years nor more than 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 8 — 1(a)(3).) Deterrence is a stated purpose of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56V2, par. 1100) and admittedly a proper factor to consider in regard to punishment for other offenses. Here, the sentence imposed was only 33V3% over the minimum sentence and less than 27% of the maximum sentence, yet, if the stated rule were applied, the court would be required to re-sentence.

After Perruquet, the supreme court decision in Cox reaffirmed the broad discretion of the sentencing court in imposing sentence. Under that doctrine, a court may logically give reasonable consideration to the need for deterrence as a factor in the imposition of a sentence. Clearly, the consideration given here was reasonable and well within the exercise of discretion. No error occurred in sentencing.

Finally, defendant maintains he is entitled to a $5-per-day credit against his fine for the 11 days he spent in custody awaiting trial. The State agrees he is entitled to such credit. People v. Joseph (1988), 176 Ill. App. 3d 636, 531 N.E.2d 432.

Accordingly, for the reasons stated we affirm all the convictions and sentences entered here. We remand to the circuit court of Brown County with directions to credit defendant with the sum of $55 against the fine imposed.

Affirmed and remanded with directions.

McCULLOUGH, P.J., and STEIGMANN, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL T. SANCHEZ, Defendant-Appellant.
    Fourth District
    No. 4—88—0911
    Opinion filed October 12, 1989.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Following a jury trial, the defendant, Angel T. Sanchez, was convicted of attempt (first degree murder) (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)) and sentenced to 50 years’ imprisonment. On appeal, defendant argues (1) the introduction of and repeated reference to an out-of-court statement made by codefendant Jose Sanchez denied defendant his right to confront a witness against him, and (2) his 50-year sentence is disproportionate to the 30-year sentence imposed upon the codefendant. We disagree and affirm.

In March 1988, defendant and the codefendant were charged with attempt (first degree murder). On the day before their joint trial, the codefendant’s case was severed because he had entered into a plea agreement with the prosecution. The plea agreement provided that if called as a witness in the defendant’s trial, the codefendant would invoke the fifth amendment in response to any questions. The prosecution then filed a motion in limine seeking to bar the defendant from calling the codefendant at trial. However, during defendant’s trial, the prosecution withdrew from the plea agreement, and the codefendant invoked his fifth amendment right not to testify.

A key witness at trial was Lieutenant Delector Kennedy, a guard at the Pontiac Correctional Center. Kennedy testified that on the day in question, he and the defendant argued several times. During these arguments defendant became hostile and told Kennedy that he was going to wind up just like Superintendent Taylor. Other evidence established that Superintendent Taylor had been killed at the institution the year before. Later that same day, Kennedy noticed the defendant talking near the showers with the codefendant. Kennedy approached them and told them to leave. Defendant refused the order. Kennedy then ordered the defendant to turn around to be handcuffed. The defendant began to turn around, but then struck Kennedy with his fist. The two men began to wrestle when someone began to strike Kennedy in the back. Kennedy said that he did not see a weapon at this time. Kennedy then stated that he grabbed the defendant and began to use the defendant as a shield. It was at this time that Kennedy saw codefendant Jose Sanchez holding a knife. Kennedy stated that the codefendant tried to reach around defendant to continue the attack. Finally, the codefendant stabbed Kennedy in the arm, and defendant began holding Kennedy from behind in a full nelson. Kennedy then heard the codefendant say, “Mother fucker, we are going to kill you now.”

Several others corroborated Kennedy’s version of the day’s events. Officer Rod Emmons testified that earlier that morning, he heard defendant make threats toward the victim, and that after lunch, he saw defendant stab the victim in the back as the codefendant held Kennedy. Emmons also testified that he heard the defendant and codefendant speaking to each other in Spanish. Lieutenant Tim Lovell testified that the defendant and codefendant continued speaking to each other in Spanish even after the fight had been broken up. Lewis Sinclair, an inmate who occupied a cell next to the defendant, testified that on the morning in question defendant had told Kennedy, “I will kick your ass. Quit harassing me.”

Defendant testified that he had never threatened Kennedy. Defendant also denied that he stabbed the officer, planned anything with the codefendant, or knew that the codefendant had a weapon. Defendant did admit, however, that he had punched Kennedy several times and wrestled with him during the incident.

In rebuttal, Lovell testified that on the morning of the incident, he saw defendant put a knife in his waistband. As defendant did so, Lovell heard defendant say that he was “going to take care of his business.”

On appeal, defendant argues that the out-of-court statement “We are going to kill you now,” which was introduced during trial and emphasized during argument as substantive evidence against the defendant, was a violation of his State and Federal confrontation rights. We disagree.

No violation of defendant’s confrontation rights occurred because the codefendant’s out-of-court statement was properly received into evidence. There are three separate grounds for the statement's admissibility: (1) it is not hearsay, and (2) even if it were hearsay, it would be admissible (a) under the coconspirator exception to the hearsay rule, and (b) under the declaration of intent exception to the hearsay rule.

In People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741, quoting McCormick, Law of Evidence §225 (1954), the court defined hearsay as follows:

“ ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ”

If a statement is not offered to show the truth of the matters asserted therein, it is not hearsay. The statement at issue in this case — the codefendant’s statement to Kennedy during the struggle, “We are going to kill you now” — was not admitted into evidence to show the truth of the matter asserted, but was admitted simply to show that the statement was made. When this is the basis of admissibility, the fact that the statement was made must be relevant. As explained by Professor Graham:

“[I]f the relevance of the statement depends upon the truth of the matter asserted or the declarant’s belief in the truth or falsity of the matter asserted, the out-of-court statement is hearsay. Conversely, to the extent that an out-of-court statement is relevant simply because of the fact it was said, the statement is not barred by the Hearsay Rule.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.1, at 505 (4th ed. 1984) (hereinafter Handbook of Evidence).)

The codefendant’s statement was made at a time when he, the defendant, and Kennedy were all engaged in a physical struggle involving a knife. Given the close proximity of these men to each other during this struggle, the trier of fact could certainly have found that the defendant heard the codefendant’s statement. That the defendant continued after hearing the codefendant’s statement to hold Kennedy in a full nelson and to fight with Kennedy while the codefendant also fought with Kennedy are facts that make the codefendant’s statement relevant.

At the State’s request the jury was instructed on the law of accountability. (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) (hereinafter IPI Criminal 2d).) Accordingly, the jury was told in the issues instruction that one of the elements the State had to prove beyond a reasonable doubt was the following: “Second: That the defendant, or one for whose conduct he is legally responsible, did so [performed an act which constituted a substantial step toward the commission of the offense of first degree murder] with- intent to commit the offense of first degree murder.” (See IPI Criminal 2d No. 6.07 (at 53).) Thus, to convict this defendant of attempt (first degree murder) based upon accountability, the State had to prove, among other things, a double intent: (1) that the defendant intended to promote or facilitate the commission of the offense of attempt being committed by his codefendant, and (2) the codefendant intended to kill the person he harmed.

In order to meet its heavy burden of proving this “double intent” beyond a reasonable doubt, the State should be entitled to elicit the evidence of the codefendant’s statement, “We are going to kill you now.” That evidence is strongly probative of the codefendant’s intentions at that moment and equally so with regard to defendant, who was only a few feet away (at most) when the statement was made and who continued to fight thereafter with the victim.

According to Professor Graham:

“In another group [of statements] falling outside the category of hearsay, a statement made by one person that becomes known to another is offered for the purpose of showing the latter’s state of mind as a circumstance under which the latter acted and as bearing upon his conduct. *** A statement is also not hearsay when offered for the purpose of showing that the listener was placed on notice, or had knowledge. *** [T]he fact that the statement was made is relevant for its effect on the listener without regard to the truth of the matter asserted.” Handbook of Evidence §801.5, at 516-17.

Thus, the codefendant’s statement, being admitted for the purpose of showing that defendant was placed on notice of the codefendant’s intentions, is not hearsay and was properly received in evidence.

As we stated earlier, even if the codefendant’s statement were hearsay, it would be admissible under two different exceptions to the hearsay rule.

“A statement expressing the declarant’s then — existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, is admissible as a hearsay exception.” (Emphasis added.) Handbook of Evidence §803.4, at 554.

Because of the heavy burden placed on the State to prove beyond a reasonable doubt the “double intent” we discussed earlier, the codefendant’s intentions are relevant and his statements are probative of those intentions. This “declaration of intent” exception to the hearsay rule is not often available because of the passage of time between the statement of the declarant and his subsequent conduct to which that statement pertains. Obviously there is no such problem in the present case. Here the entire fight was probably of a very short duration. Thus, the codefendant’s statement was substantially contemporaneous with his acts to which that statement pertains.

The other exception applicable to the present case is the co-conspirator exception to the hearsay rule. Declarations of a coconspirator made during the course of and in furtherance of a conspiracy are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy or joint venture between the declarant and another defendant. (People v. Goodman (1980), 81 Ill. 2d 278, 283, 408 N.E.2d 215, 216.) The acts and declarations of a defendant and a codefendant may form the inferential basis for the existence of the conspiracy. People v. Duckworth (1989), 180 Ill. App. 3d 792, 536 N.E.2d 469; People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802.

In the present case, the record supports an inferential basis for the existence of a conspiracy. Defendant and codefendant were talking when Kennedy approached. During the ensuing struggle, defendant held Kennedy with his arms behind his back in a full nelson while the codefendant tried to stab Kennedy with a knife. Defendant had threatened Kennedy earlier in the day and told him he was “going to end up like Taylor.” An inmate heard defendant tell Kennedy he was “going to kick his ass.” Also, another correctional officer testified that he saw defendant stab Kennedy during the time Kennedy was struggling with both defendant and the codefendant. After the incident, the defendant and codefendant continued to speak to each other in Spanish. Clearly, the record reveals the basis for the existence of a conspiracy. Accordingly, codefendant’s statement, “We are going to kill you now,” is admissible as substantive evidence against defendant under the coconspirator exception to the hearsay rule.

We note that if defendant’s argument were correct, the statement of one defendant to a teller during a bank robbery, “Put the money in the bag,” would not be admissible against his silent codefendant, standing next to the defendant and pointing a gun at the teller. The law could not tolerate such an absurd result.

The final issue defendant raises on appeal is whether his sentence of 50 years is disproportionate to the codefendant’s sentence, pursuant to a plea agreement, of 30 years. We hold that it is not.

The Illinois Supreme Court held in People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, that it is not the function of a reviewing court to serve as the sentencing court. A sentence within statutory limits should not be reduced merely because a reviewing court would have imposed a different penalty. (See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A sentence will be upheld when it reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. People v. Kline (1981), 99 Ill. App. 3d 540, 425 N.E.2d 562.

Defendant argues that his sentence is disproportionate to the co-defendant’s sentence because their criminal histories are largely the same. Defendant also argues that the codefendant played a more dominant role in the offense than did defendant.

The record on appeal does not contain comparable information concerning the history, character, and condition of the defendant and codefendant respectively. Based solely upon the remarks of counsel at the sentencing hearing, all this court knows of the codefendant is that he, too, was serving a murder sentence. The record contains a reference to the defendant’s unlawful use of weapons juvenile adjudication when he was 14, but the record does not contain any reference to the codefendant’s prior criminal or juvenile record.

Moreover, the degree of defendant’s participation in the crime was not the same as the codefendant’s participation. It was the defendant who had threatened the victim on several occasions on the day in question and who had said that he was going to “take care of his business.” Also, it was the defendant who first punched the victim, pulled the victim to the location where the fight occurred, and held him so that the codefendant could stab him. According to one witness, the defendant also stabbed the victim.

Defendant fails to appreciate the distinction between the co-defendant’s entering into a plea agreement with the State and the defendant’s being convicted after a jury trial. This distinction is not a matter of the defendant being punished for exercising his right to a jury trial; instead, this distinction is a matter of the codefendant being given a benefit to which he otherwise would not have been entitled. A trial court is allowed discretionary leniency in the sentencing of a defendant who assumes responsibility for his conduct by pleading guilty. People v. Coustin (1988), 174 Ill. App. 3d 824, 529 N.E.2d 89; People v. McClendon (1986), 146 Ill. App. 3d 1004, 497 N.E.2d 849.

In short, a sentence is supposed to fit both the crime and the criminal and to take into account the interests of the public in the administration of criminal justice. There is no basis in the law for a claim that two defendants involved in the same offense must receive the same sentence. We are in agreement with the following views expressed in People v. King (1981), 102 Ill. App. 3d 257, 259-61, 430 N.E.2d 292, 294-95:

“A longer sentence is not unfair because of the length of its term if it is based on valid sentencing factors in aggravation and mitigation. The length of his sentence may be viewed by the defendant as an index for gauging whether his sentence, as well as his trial, was fair. A defendant’s personal assessment of the term of the sanction imposed, however, is not the operative fact upon which to determine whether a sentence is excessive.
* * *
Sentencing determinations are complex and challenging. To be fair to a defendant, and the community within which he must dwell, a just punishment must address the activity done, the likelihood of rehabilitation or further criminality by the actor, and the effect the crime has on society. The sanction imposed will only be fair when all sentencing factors are balanced. Recognition of the sentence imposed on a codefendant should also be weighed if properly before the court (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(b)). But such other penalty does not control the later sentencing determination. Rather, it amounts to another component to be considered by the judge sentencing the defendant before him.
Rarely will a trial judge be confronted with two codefendants who are really similarly situated in terms of the wrong committed, their individual histories and personalities, or their disposition with respect to the criminal justice system [citations]. *** Defendants are not machines which can be calibrated or categorized for the purpose of legal argument. We should not expect trial judges to act as automatons when meting out punishment to a person who has been convicted of a crime. To conclude otherwise is to ignore the present realities which exist in our trial courts in the daily administration of justice.”

Upon review of the record, we find that the trial court carefully considered all of the evidence before it. At the sentencing hearing, the court found that the defendant faced a range of 6 to 60 years for the Class X felony of which he was convicted. The court noted that the defendant and the codefendant had been lying in wait for the victim. The court considered the sentence the codefendant received on his plea agreement. The court concluded that an extended-term sentence was necessary to deter further stabbings in the prison. Based upon this record, we find that the trial court did not abuse its discretion in sentencing the defendant to 50 years.

For the reasons stated, the conviction and sentence of the circuit court of Livingston County are hereby affirmed.

Affirmed.

McCULLOUGH, PM., and LUND, J., concur.