author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF KAREN MITCHELL, Petitioner-Appellant and Cross-Appellee, and ROBERT MITCHELL, Respondent-Appellee and Cross-Appellant.
    Second District
    No. 81-440
    Opinion filed December 31, 1981.

      Rernard L. Rivkin, of Feiwell, Galper and Laskey, Ltd., of Chicago, for appellant.
    Marjorie F. Stampolis and Ernst W. Kobrow, both of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Karen Mitchell appeals from an order denying her petition for permanent custody of David Mitchell and from an order denying her motion for a rehearing. Robert Mitchell cross-appeals from the judgment of dissolution of marriage, from the denial of child support and from the disposition of marital property.

The Wife’s Appeal

The wife was granted temporary custody of the son of the parties, David Mitchell, then age 5, in April 1979 following the wife’s petition for dissolution of marriage.. On June 4, 1980, following a hearing, the trial court granted permanent custody to the husband. He considered the respective employment of both spouses, the wife as an actuary with Daskais & Walls, Inc., the husband as part of management for Wilcox International. The court concluded that David “is going to need a tremendous amount of support and love and assistance”; great demands were being made on the wife professionally; the husband was in a better position to give more time to the child; and placing custody in the father with extensive visitation to the mother was in the child’s best interest.

The trial court has a broad discretion in awarding custody, and there is a “strong and compelling” presumption in favor of its decision. (Gren v. Gren (1978), 59 Ill. App. 3d 624, 626.) Decisions as to custody rest within the sound discretion of the trial court and will not be disturbed on appeal unless contrary to the manifest weight of the evidence. (In re Custody of Scott (1979), 75 Ill. App. 3d 710, 714.) We conclude that the order granting custody to the husband was not against the manifest weight of the evidence.

The evidence was in considerable conflict on this issue. Without going into great detail, we conclude that there was sufficient evidence that, given the stress David was under, the father was better able to provide parental care. The record shows that David had had four different babysitters in the last year and a half. His daily routine while he was in his mother’s custody included eating breakfast at.the baby sitter’s, and spending “at least two hours” at the baby sitter’s after school each day where he watched television cartoons. There was testimony that Mrs. Mitchell had not wishéd to reduce her work hours and that they were long and not always flexible; that she worked an average one weekend day a month and had gone on numerous out of town trips..

Mr. Mitchell, although employed full time, had some flexibility in his schedule and had taken time off in November and December of 1978 to care for David while Mrs. Mitchell was seeing a psychiatrist. Mrs. Mitchell admitted that her husband and David have a “good relationship.” In addition, the evidence indicates that David and his father spend their time together in Elmhurst engaging in sports and other beneficial activities which David enjoys; that David had several good friends near the Elmhurst home but none in the Downers Grove neighborhood of his mother; that David told the judge that he got along “pretty good” with his mother and “fine” with his father.

While the judge found that both parents were interested in David’s education, including programs for gifted students, the facts which we have mentioned, and to which the court could give credence in spite of the conflicting testimony, provide sufficient basis for the trial court’s decision.

The wife also claims that the trial court erred in refusing to hear her motion for a rehearing of the permanent custody order which was entered on June 4, 1980. On May 20, 1981, the wife presented a motion for rehearing under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3). The trial court refused to hold a hearing on the petition, instructing the wife’s attorney to file a petition for modification of the decree under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610)). The wife argues that the court erred in denying the motion without a hearing.

Generally, section 610 of the Marriage and Dissolution of Marriage Act mandates that no motion to modify a custody judgment may be made earlier than two years after its date unless the court believes that the present environment seriously endangers the child’s welfare; or that circumstances have changed since the prior judgment making modification in the child’s best interest. It is settled that section 610 does not preclude the use of section 68.3 motions to challenge permanent custody decrees on grounds not peculiar to child custody cases. (In re Marriage of Herron (1979), 74 Ill. App. 3d 748, 753.) Section 68.3 requires, however, that a motion for rehearing be filed within 30 days after entry of the decree; here, the motion was not filed until nearly a year after the decree. The wife argues that the permanent custody decree does not fall within section 610 or the 30-day requirement of section 68.3 because it was not a “final order” as it determined only one issue of the case while others were unresolved. We cannot agree. It is clear from the record that the custody order entered June 4, 1980, was intended to be permanent. The fact that the order may not have been final for appeal purposes does not alter the fact that it was a conscious modification of the temporary custody arrangement made after a testimonial hearing. Under such circumstances it could only be altered upon a showing made in accordance with the terms of section 610 of the Marriage and Dissolution of Marriage Act. Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 930.

The Husband’s Cross-Appeal

A. The husband first contends that the grounds of extraordinary and repeated mental cruelty as grounds for the dissolution of the marriage were not proved; and that the wife failed to show lack of provocation for the alleged incidents of mental cruelty.

A trial court’s finding of sufficient evidence of mental cruelty is presumed to be correct, and the court’s decision will not be set aside unless against the manifest weight of the evidence. Hayes v. Hayes (1969), 117 Ill. App. 2d 211.

Mr. Mitchell’s conduct, particularly in the two months after the separation, appears to go well beyond mere sporadic acts tending to humiliate or embarrass Mrs. Mitchell. (See Gregory v. Gregory (1974), 24 Ill. App. 3d 436, 441.) There was evidence of repeated phone calls at odd hours of the night, a threat to kill himself, and the deliberate failure to take his medication, to the point where he was “dying of natural causes.” This was sufficient to constitute conduct “calculated or obviously of a nature to torture, discommode, or render [Mrs. Mitchell’s] life unendurable or miserable 9 9 9.” (24 Ill. App. 3d 436, 441.) Moreover, the trial court also found that Mr. Mitchell had, at earlier times in the marriage, accused his wife of infidelity, thrown a telephone at her, kicked a hole in the front door, with Mrs. Mitchell and David present, during a fit of anger, referred to Mrs. Mitchell’s behavior as unreasonable and irrational, and refused to consult with her on financial and tax matters. While the husband denied much of this, the court could give credence to the wife’s testimony.

Furthermore, Mr. Mitchell himself testified that his wife was under considerable emotional strain during the marriage and was basically “high-strung,” an assertion borne out to some degree by Mrs. Mitchell's visits to psychiatrists in 1976 and 1978. The emotional makeup of the parties, particularly the complaining spouse’s mental health, is a factor to be considered in whether the offending spouse’s actions constitute mental cruelty. Hayes v. Hayes (1969), 117 Ill. App. 2d 211, 215-16.

Mr. Mitchell argues that there was no evidence that his conduct caused any change in Mrs. Mitchell’s mental or physical condition. However, causation is adequately shown by Mrs. Mitchell’s own testimony and also is reasonably inferrable from the nature of the acts themselves, and from Mrs. Mitchell’s emotional problems during much of the marriage.

Mr. Mitchell also argues that much of his conduct was provoked by Mrs. Mitchell. Specifically, he testified that his “suicide threat” of Thanksgiving 1978 and subsequent decision to stop taking his medication were brought on by Mrs. Mitchell’s admission that she had tried to kill him. He also testified that he kicked the front door because Mrs. Mitchell had just admitted she was having an affair.

Although Mrs. Mitchell did not directly deny the husband’s testimony in this regard, she generally denied any infidelity. Moreover, there did not appear to be any provocation shown for the husband’s harassing phone calls, his suicide threats, his attempted suicide, his accusation that his wife was having an affair with a man from whom she bought a video recorder, and the husband’s refusal to consult the wife on financial and other matters. On the whole record we conclude that the finding of unprovoked mental cruelty is not against the manifest weight of the evidence. The trial judge was in the best position to determine the credibility of witnesses and the weight to be assigned the conflicting testimony. In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 587.

B. The husband objects to only one aspect of the trial court’s property distribution: the award of the entire 270 shares of Daskais & Walls stock to the wife. He argues that even though the distribution was otherwise equitable, the value of the stock is so great that, factored into the settlement, it makes the distribution as a whole inequitable.

The husband argues that as the wife owns 12.3% of the outstanding stock in Daskais & Walls, the stock’s value is 12.3% of the company’s annual gross receipts, times a multiplier of 1.75, resulting in a valuation (based on annual gross receipts of about $997,000) or $214,644.72. The wife argues that the stock’s value should be determined by looking at sales back to the corporation, since the corporation has the right of repurchase. She arrives at a value of $27,600 on this basis.

It should first be noted that there appears to be little dispute on the value of the rest of the property involved in the distribution of $86,706 for the husband and $108,323 for the wife. We conclude that there was sufficient evidence of the stock’s value for the trial court’s decision to stand.

A division of property will be reversed only where the trial court acts arbitrarily and ignores recognized principles of law so that substantial injustice results. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127.) Although the trial court must consider all relevant factors under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503), it need not make specific findings of fact as to the value for each item in dispute. (In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 316.) The court, however, must have some evidence of the value of each piece of property in order to divide the property in “just proportion.” In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636.

The evidence is sufficient to support the judgment of the trial court which appears to give considerable weight to the wife’s testimony. There was testimony as to recent sales of stock as well as the original purchase by Mrs. Mitchell. There was also testimony that transfer of stock was limited by the corporation’s right of purchase; that Daskais & Walls’ taxable net income for the past year was zero; that its gross receipts increased only about 15% between 1976 and 1979; and that Mr. Daskais and Mr. Walls owned a controlling interest in the corporation. We have held that precise rules for determining the value of closely held stock cannot be laid down but that every relevant evidential fact entering into the value of the corporate property reflecting itself in the worth of the corporate stock should be considered, including past sales if relevant. (Stewart v. D. J. Stewart & Co. (1976), 37 Ill. App. 3d 848, 855.) In the exercise of its discretion the trial court could reject the husband’s argument that the stock in the closely held service corporation should be valued primarily according to gross receipts, based on a multiplier which was not firmly established, and without considering how much of the receipts were eaten up by expenses and debts. Also the court could reject the husband’s alternative argument based on the sale of stock. This argument ignored a two-for-one split in late 1979, the reorganization in June of 1979 whereby the provision of incentive compensation units to certain shareholders made Mrs. Mitchell’s shares worth appreciably less than before, and the uncontradicted testimony of Mrs. Mitchell that her choice of extra stock rather than incentive compensation further decreased the value of each share. Given the wide discretion the trial court has to dispose of property, we conclude that the distribution was not an abuse of discretion and that there was sufficient evidence of the stock’s value to support the judgment.

C. We also conclude that the trial court did not abuse its discretion in denying child-support payments to the husband. The trial court denied direct child-support payments but required the wife to pay for David’s medical insurance and clothing. In so holding, the court found the husband had sufficient funds available to provide for himself and David, expressed concern, noting irregularities in the husband’s past tax returns, that he would divert support money to his own personal use, and took into account not only the wife’s payment of David’s medical insurance and clothing costs but payment of all of David’s expenses during visitation. The husband’s argument that the trial court abused its discretion is based on the reasoning that the court did not consider the standard of living the child would have enjoyed had the marriage not been dissolved (Ill. Rev. Stat. 1979, ch. 40, par. 505(a)(3)). He contended that the decision not to award direct support was error because if the marriage had continued David would live in an $80,000-a-year to $90,000-a-year-income family, whereas the husband’s income is only $30,000 per year.

The trial court has broad discretion in determining the necessity for and the amount of a support award, and its decision will not be set aside unless contrary to the manifest weight of the evidence. (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 59.) Here there is no.evidence that the court failed to consider the pre-dissolution standard of living as one of the five factors under section 505(a). The items of support to which the husband testified were consistent with his income and other assets. Moreover, the wife was ordered to pay a considerable part of the expenses, including clothing, medical insurance, and all expenses during visitation which amounted to approximately one-third of the year. Further, the court found that the wife had long been willing to support David with voluntary expenditures and gifts. We find no abuse of discretion.

We affirm the judgment of the trial court.

Affirmed.

REINHARD and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG JUSTICE REINHARD,

license: Public Domain

text:
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellee, v. ARTHUR R. MOORE et al., Defendants-Appellants.
    Second District
    No. 81-296
    Opinion filed December 28, 1981.

      James M. Wilson, of Ingemunson and Wilson, of Yorkville, and John P. Duggan, of Puckett, Barnett, Larson, Mickey^ Wilson and Ochsenschláger, and Darrell Jordan, of Edwards, Parker and Jordan, both of Aurora, for appellants.
    John P. Callahan, of Geneva, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

This action was brought by State Farm Fire and Casualty Company in the Circuit Court of Kane County seeking a declaration that a homeowner’s policy of insurance did not extend coverage to an accident suffered by minor Marcus Hott at the home of Arthur and Rebecca Moore. The trial court rendered summary judgment in favor of the insurer and against its insured and the injured child.

On April 8,1978, Marcus Hott, a minor, was injured while under the care of defendant, Rebecca Moore, pursuant to an agreement with Marcus’ parents. Under the terms of this agreement, Moore, who had two children of her own, was paid $25 per week to care for Marcus five days a week, eight hours a day. Marcus was burned when he pulled a pan of boiling water on himself, based upon an agreed statement of facts, while Moore was fixing lunch for herself, one of her children, Marcus and another child.

At the time of the injury, Moore had a homeowner’s insurance policy from plaintiff, State Farm Fire & Casualty Company. The policy insured against personal injuries of third parties that Moore was liable for, but provided:

“This policy does not apply * * * (d) to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to nonbusiness pursuits.”

State Farm filed a declaratory judgment action asserting that the exclusionary clause precluded coverage for Marcus’ injuries. Moore’s motion for summary judgment was denied; State Farm’s cross-motion for summary judgment was granted.

Exception to the Exclusionary Clause

Moore’s care of Marcus is a business pursuit. Moore does not dispute this point. Moore was licensed by the Illinois Department of Children and Family Services as a child-care facility. She watched the same two children every day, and she was paid $25 per week for each child. She advertised her services. The policy defines a business as a trade, profession, or occupation and the use of residence premises for such purposes. A business pursuit is a continuous or regular activity, done for the purpose of earning a profit. (American Family Mutual Insurance Co. v. Bentley (1976), 170 Ind. App. 321, 352 N.E.2d 860; Annot., 48 A.L.R.3d 1096, 1099 (1973).) This is true even of part-time or supplemental income activities. (Krings v. Safeco Insurance Co. (1981), 6 Kan. App. 2d 391, 628 P.2d 1071.) Babysitting conducted in the home for compensation on a continuous basis, as opposed to the temporary or casual arrangement, is a business pursuit. (Annot., 48 A.L.R.3d 1096, 1099 (1973); Peterson v. Highlands Insurance Co. (Fla. App. 1976), 328 So. 2d 49; Stanley v. American Fire & Casualty Co. (Ala. 1978), 361 So. 2d 1030; Gulf Insurance Co. v. Tilley (N.D. Ind. 1967), 280 F. Supp. 60, aff'd (7th Cir. 1968), 393 F.2d 119.) Babysitting for pin-money by one who is not licensed, does not advertise, and is not always compensated is not a business. Nationwide Mutual Fire Insurance Co. v. Collins (1975), 136 Ga. App. 671, 222 S.E.2d 828.

The primary issue is whether, despite the business pursuit, the injury resulted from an activity ordinarily incident to nonbusiness pursuits. If so, this accident is covered under the exception to the exclusion. The accident occurred when Marcus pulled a pan of boiling water onto himself. At the time, Moore was boiling water for soup, tea, eggs and jello to be used for lunch for herself, her own child and the two children for whom she babysat. The soup and tea were for Moore and the children, the eggs and jello were for the children. She would have prepared lunch for herself and her child even if Marcus had not been there. Any leftovers would have been used by the Moore family. As part of her babysitting duties and included in her compensation, she provided lunch every day. Generally, she did not provide other meals. Marcus did not require any special diet. While Moore watched Marcus, she simultaneously cared for her own children.

Activities ordinarily incident to non-business pursuits are activities not related to or associated with the insured’s business pursuits. (Annot., 48 A.L.R.3d 1096, 1099, 1107 (1973); North River Insurance Co. v. Poos (Mo. App. 1977), 553 S.W.2d 500.) Activities resulting from babysitting frequently fall within this exception. (Annot., 48 A.L.R.3d 1096, 1099-1100 (1973).) As maintenance of home heating for the insured’s family is an activity ordinarily incident to nonbusiness pursuits, the exception applies where a child is injured from touching a furnace grill in the insured’s home. (Nationwide Mutual Fire Insurance Company v. Collins (1975), 136 Ga. App. 671, 222 S.E.2d 828.) In Crane v. State Farm Fire & Casualty Co. (1971), 5 Cal. 3d 112, 485 P.2d 1129, 95 Cal. Rptr. 513, a child for whom the insured was babysitting was binned in the insured’s home while the insured was preparing lunch for herself, her children and the injured child. The way the injury occurred was not shown, but the exception applied, as the insured’s activities were incident to her nonbusiness regimen of maintaining a household and supervising her own children. (5 Cal. 3d 112, 117, 485 P.2d 1129, 1131, 95 Cal. Rptr. 513, 515.) In the Crane court’s opinion, the exception would apply even if the injury occurred due to the insured’s negligent supervision of the child. (5 Cal. 3d 112, 116, 485 P.2d 1129, 1131, 95 Cal. Rptr. 513, 515.) Injury to a child who pulled a pot of hot coffee onto herself was covered by the policy where the coffee was intended for the insured and an adult guest, as the preparation of coffee is an activity not ordinarily associated with a babysitter’s functions. (Gulf Insurance Co. v. Tilley (N.D. Ind. 1967), 280 F. Supp. 60, off d (7th Cir. 1968), 393 F.2d 119.) In Country Mutual Insurance Co. v. Watson (1971), 1 Ill. App. 3d 667, 274 N.E.2d 136, the insured cared for children temporarily placed in his home by the Illinois Department of Children and Family. Services. One child was injured while assisting the insured in feeding his cattle. The exception applied, as the feeding of cattle was ordinarily incident to the insured’s nonbusiness pursuit of farming. 1 Ill. App. 3d 667, 669, 274 N.E.2d 136, 138.

In other cases, injuries arising out of the insured’s babysitting are excluded from coverage. The exception does not apply to a child drowned in the insured’s pool while the insured was feeding her baby, as feeding and caring for children is associated with the insured’s babysitting. (Peterson v. Highlands Insurance Co. (Fla. App. 1976), 328 So. 2d 49, 50.) Injuries to a child resulting from falling into the insured’s fireplace while the insured prepared lunch are not covered. (Stanley v. American Fire & Casualty Co. (Ala. 1978), 361 So. 2d 1030.) Similarly, injuries of a child scalded while being bathed by the insured babysitter are not covered as the activity is not ordinarily incident to nonbusiness pursuits. See American Family Insurance Co. v. Dewald (8th Cir. 1979), 597 F.2d 1148.

To determine if a specific activity falls within the exception, the courts look to several factors. If an activity is not done for the purpose of expediting the insured’s business or in the course of the insured’s business duties, such as a prank on business property or while at work, it is within the exception. (See State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 230 N.E.2d 513.) The fact that the injury occurred on business premises is not conclusive; the exception applies where the activity is not incident to a business purpose. (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700; Michigan Mutual Liability Co. v. Ferguson (1968), 15 Mich. App. 298, 166 N.W.2d 525 (exception applied to the insured’s negligence in throwing a shovel handle off the roof of his business).) Some courts apply the exclusion to all the insured’s activities while at work. (Maryland Casualty Co. v. Farmers Alliance Mutual Insurance Co. (Okla. App. 1977), 566 P.2d 168 (damage from explosion caused by the insured lighting a cigarette at a job site was excluded).) However, only injuries arising from activities in the course of the insured’s business duties should be excluded. (69 Ill. App. 3d 777, 387 N.E.2d 700; see Reliance Insurance Co. v. Fisher (1974), 164 Mont. 278, 521 P.2d 193 (no coverage for a teacher who hit another teacher at school, in a fight arising from the insured teacher’s disciplining of a student).) Where the insured has a dual purpose, one business and one nonbusiness, the exception may not apply. (State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 389 N.E.2d 668.) The appropriate inquiry is not whether the insured was engaged in a business pursuit at the time of the accident, but whether the particular activity was nevertheless one ordinarily incident to nonbusiness pursuits. (New Jersey Property Liability Guaranty Association v. Brown (1980), 174 N.J. Super. 629, 417 A.2d 117.) The policy covers acts, which by their nature, are not associated with the insured’s business pursuits, but which are causally related to the business activities. Gulf Insurance Co. v. Tilley (N.D. Ind. 1967), 280 F. Supp. 60, aff'd (7th Cir. 1968), 393 F.2d 119.

A test of “but for the business relationship, the child would not be present in the insured’s home,” is not appropriate. (280 F. Supp. 60, 65.) Instead, the court must examine the particular activity which proximately caused the injury and determine if that activity is one ordinarily associated with a babysitter’s function. (280 F. Supp.. 60, 65.) Crane v. State Farm Fire & Casualty Co. (1971), 5 Cal. 3d 112, 485 P.2d 1129, 95 Cal. Rptr. 513, views almost any injury due to a babysitter’s negligent supervision of a child as potentially within the exception. However, the better view is to examine the activity itself. Child care for compensation is not ordinarily incident to the conduct of a household, and contemplates the exercise of due care to protect the child from household activities and conditions. (Stanley v. American Fire & Casualty Co. (Ala. 1978), 361 So. 2d 1030.) Injuries resulting from failure to properly supervise a child the insured is paid to care for therefore are not covered by the policy. 361 So. 2d 1030.

Thus we must consider what activity caused Marcus’ injury. Stanley held that a child’s injury from falling in the fireplace while the insured was preparing lunch was due to the insured’s negligent supervision of the child, not the insured’s activity in preparing lunch. (361 So. 2d 1030, 1033.) Marcus was burned by a pan of hot water which the insured was using to prepare lunch for herself, her child, and the two children for whom she sat. She would have prepared lunch regardless of Marcus’ presence. The babysitting agreement included lunch for Marcus. Marcus apparently was injured as the result of Moore’s activity in preparing lunch. Generally, preparation of lunch is ordinarily incident to a nonbusiness pursuit. (361 So. 2d 1030, 1033.) As the lunch was for Moore and her child as well as the children for whom she sat, her activity falls within the exception. By contrast if she had been preparing lunch only for Marcus, her activity would be, more likely, a business pursuit.

The Exclusionary Clause: Ambiguous?

In interpreting an insurance policy, the court’s primary concern is to effectuate the intent of the parties as expressed by the contract. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601; Willett Truck Leasing Co. v. Liberty Mutual Insurance Co. (1980), 88 Ill. App. 3d 133, 410 N.E.2d 376.) Any ambiguity in an insurance policy is construed against the insurer and in favor of the insured, as the insurer drafted the policy. (Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 389 N.E.2d 144; Zipf v. Allstate Insurance Co. (1977), 54 Ill. App. 3d 103, 369 N.E.2d 252.) Courts will not create an ambiguity where none exists. (State Farm Mutual Automobile Insurance Co. v. Berke (1970), 123 Ill. App. 2d 455, 258 N.E.2d 838.) Where the terms of a policy are clear and unambiguous, its plain and obvious import will be given effect. (54 Ill. App. 3d 103, 106, 369 N.E.2d 252, 255.) Ambiguous provisions in which an insurer seeks to limit its liability are construed most strongly against the insurer and in favor of the insured. (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044; State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1063, 419 N.E.2d 601, 602.) Where an insurer attempts to limit liability, the insurer must show that the claim falls within the exclusion, as the insured’s intent was to obtain coverage. (94 Ill. App. 3d 1062, 1064, 419 N.E.2d 601, 602.) Further, the insurer, as the drafter of the policy, could have stated exclusions clearly and specifically. (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700.) Exclusionary provisions, therefore, are applied only where the terms are clear, definite and explicit. 94 Ill. App. 3d 1062, 1064, 419 N.E.2d 601, 602.

A provision is ambiguous if it is subject to more than one reasonable interpretation. (94 Ill. App. 3d 1062, 1064, 419 N.E.2d 601, 603; State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718.) In determining if an ambiguity exists, the court should consider the subject matter of the contract, the facts surrounding its execution, the situation of the parties, and the predominate purpose of the contract which is to indemnify the insured. Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921; Great Central Insurance Co. v. Bennett (1976), 40 Ill. App. 3d 165, 351 N.E.2d 582.

The policy here excluded coverage for injuries arising out of business pursuits of any insured except activities therein which are ordinarily incident to nonbusiness pursuits. Some courts have found this clause unambiguous in the context of injuries incurred by a child for whom the insured is babysitting. (Stanley v. American Fire & Casualty Co. (Ala. 1978), 361 So. 2d 1030; Peterson v. Highlands Insurance Company (Fla. App. 1976), 328 So. 2d 49; Crane v. State Farm Fire & Casualty Co. (1971), 5 Cal. 3d 112, 485 P.2d 1129, 95 Cal. Rptr. 513.) Other courts view it as ambiguous in the babysitting context. (Gulf Insurance Co. v. Tilley (N.D. Ind. 1967), 280 F. Supp. 60, aff'd (7th Cir. 1968), 393 F.2d 119.) This court has found the language of this clause unclear and ambiguous in the context of an on-the-job prank. (State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 230 N.E.2d 513.) In particular, the exception to the exclusion obscures the clause’s meaning. (87 Ill. App. 2d 15, 19, 230 N.E.2d 513, 515.) Other Illinois courts have found this clause unclear and ambiguous in a variety of contexts. Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 377 N.E.2d 296 (insured’s son started a fire at the insured’s work place); Economy Fire & Casualty Co. v. Second National Bank (1980), 91 Ill. App. 3d 406, 414 N.E.2d 765 (insured started a fire in his office by lighting a match for an unknown purpose); Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700 (insured’s employee was killed in an automobile accident after consuming alcohol at the business premises and at insured’s home).

The exclusionary clause reasonably implies that the nature of the activity determines coverage and that only peculiarly business activities are excluded. (69 Ill. App. 3d 777, 788, 387 N.E.2d 700, 708.) Under the terms of the clause, the particular facts of this case could reasonably Re interpreted to be covered or excluded. Because of this ambiguity, doubt is resolved in favor of coverage for the Moores.

Propriety of Summary Judgment for State Farm

State Farm filed for a declaratory judgment. A court may construe a written contract, such as an insurance policy, and make a binding declaration of the parties’ rights. (Ill. Rev. Stat. 1979, ch. 110, par. 57.1.) If an insurer obtains a declaration of rights under a policy against its insured, the judgment is binding under principles of collateral estoppel as to facts determined by the judgment. (Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335.) If the injured party sues the insured and the insurer seeks a declaratory judgment concerning coverage, the court in the declaratory judgment action cannot determine the ultimate question of the insured’s liability of the facts upon which such liability is based. (74 Ill. 2d 132, 157, 384 N.E.2d 335, 346; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) In this case, no claim is pending between Marcus’ family and the Moores. Declaratory judgment is appropriate here if we can determine the issue of coverage without determining any facts or issues concerning Moore’s liability to Marcus. (See Willett Truck Leasing Co. v. Liberty Mutual Insurance Co. (1980), 88 Ill. App. 3d 133, 410 N.E.2d 376; Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App. 3d 1146, 399 N.E.2d 252.) That is possible on the facts presented on this appeal. However, at trial, State Farm alleged that the injury occurred when Moore, as part of her babysitting duties, was bathing Marcus in extremely hot water. The trial court’s order made no specific findings. On appeal, State Farm accepts Moore’s version of the facts. The facts in Moore’s affidavit must be taken as true, as they are not contradicted by any counteraffidavits. Leon v. Max E. Miller & Sons, Inc. (1974), 23 Ill. App. 3d 694, 320 N.E.2d 256.

Summary judgment is appropriate only where there is no genuine issue of material fact. (Ill. Rev. Stat. 1979, ch. 110, par. 57; State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) If a disputed factual issue existed, summary judgment should not have been entered. (Lane v. Bauscher (1978), 59 Ill. App. 3d 621, 375 N.E.2d 993; Cowan v. Insurance Company of North America (1974), 22 Ill. App. 3d 883, 318 N.E.2d 315.) Otherwise, summary judgment can be granted. 94 Ill. App. 3d 1062, 419 N.E.2d 601.

Although Moore was engaged in a business pursuit at the time of the accident, Marcus’ injury resulted from Moore’s activities in preparing lunch for herself and her own child as well as the two children she watched for compensation. Therefore, her activity was one ordinarily incident to nonbusiness pursuits, and within the exception to the exclusion. As the policy’s exclusionary clause is ambiguous, it should be construed against the insurer and in favor of the insured. We, therefore, reverse the judgment of the circuit court of Kane County and remand the case for entry of summary judgment for Moore and against State Farm.

Reverse and remand.

NASH, J., concurs.

JUSTICE REINHARD,

dissenting:

The majority opinion correctly cites several Illinois decisions which specifically found that the language in an insurance policy which provides that this policy does not apply to bodily injury or property damage arising out of business pursuits of an insured except activities therein which are ordinarily incident to nonbusiness pursuits is unclear and ambiguous. (See Economy Fire & Casualty Co. v. Second National Bank (1980), 91 Ill. App. 3d 406, 414 N.E.2d 765; Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700; Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 377 N.E.2d 296; State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 230 N.E.2d 513,) However, the ambiguity in the exclusionary clause which in those cases was construed in favor of the insured was under the particular factual circumstances of each case. If, however, the evidence of the case is insufficient to establish that the business pursuit was an activity “ordinarily incident to nonbusiness pursuits,” then the exclusion has been held applicable. (State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 219, 389 N.E.2d 668.) The majority points out that Marcus was injured as the result of Moore’s activity in preparing lunch which is “ordinarily incident to a non-business pursuit.” However, I would conclude that preparing food for Marcus and watching him are the very purposes of the business pursuit of babysitting on the premises. The fact that preparing food for lunch is also ordinarily incident to a nonbusiness pursuit does not, in my opinion, under these circumstances transform an activity which here is essentially business related into one ordinarily incident to nonbusiness pursuits. (See State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 219, 389 N.E.2d 668.) I agree that the exclusionary provision is poorly worded, but applied to these facts I do not find it so ambiguous to override the clear business activity involved. See Stanley v. American Fire & Casualty Co. (Ala. 1978), 361 So. 2d 1030.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WANDA BRANDSTETTER, Defendant-Appellant.
    Fourth District
    No. 16801
    Opinion filed January 8, 1982.

      Sheila Murphy and John Patrick Michael Murphy, both of The Murphy Law Firm, of Chicago, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Phyllis J. Perko and Larry Wechter, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    David Goldberger, Kathryn Haller, and Rhonda Rivera, all of Columbus, Ohio, pro bono publico.

    Julius Lucius Echeles and Caroline Jaffe, both of Chicago, for amicus curiae.

   PRESIDING JUSTICE GREEN

delivered the. opinion of the court:

After a trial by jury in the circuit court of Sangamon County, defendant, Wanda Brandstetter, was convicted on August 22,1980, of the offense of bribery (Ill. Rev. Stat. 1979, ch. 38, par. 33—1(a)). On November 7, 1980, she was fined $500 and placed on conditional discharge requiring her to perform 150 hours of public service work. The case arose from an occurrence on May 14, 1980, in Springfield, when, pursuant to conversations concerning the proposed Equal Rights Amendment to the Federal Constitution (ERA), defendant handed to State Representative Nord Swanstrom a note on which was handwritten: “Mr. Swanstrom the offer for help in your election & $1000 for your campaign for Pro ERA vote.” She has appealed. We affirm.

Although defendant makes numerous claims of error, the major thrust of her argument is that even construing the evidence most strongly against her, she was acting pursuant to her first amendment rights of freedom of speech to petition her government for redress of grievance. She maintains she did not violate any statute but, if she did, that statute was unconstitutional, at least as applied to what she was doing. While, as we subsequently set forth, we do not agree, we recognize that her conduct differed only subtly from that which is either statutorily permitted or constitutionally protected. Much evidence was offered and argument made that defendant was a well-meaning person of high moral character. While this did not exonerate her, it was properly reflected in the very light sentence which was imposed.

Defendant’s contentions on appeal are, in more detail, as follows: (1) The legislation under which she was convicted was unconstitutional because of vagueness and overbreadth and as applied to the facts of this case; (2) her guilt was not proved beyond a reasonable doubt; (3) the indictment was insufficient; (4) the trial court erred in denying her an evidentiary hearing on her claim of discriminatory prosecution; (5) the verdict finding her guilty of bribery was legally inconsistent with that acquitting her of solicitation; (6) the prosecutor’s closing argument deprived her of a fair trial; and (7) the trial court erred in denying her motion to vacate her conviction on the grounds of newly discovered evidence.

Although the details of the trial evidence will be discussed in connection with the various issues, a brief reference to some of the evidence is necessary to begin that discussion. Defendant testified to having become an active volunteer for ERA in 1978 and to having traveled to Springfield on May 14, 1980. She stated that she had previously been informed that Swanstrom had been against ERA but was wavering. She testified to two encounters with Swanstrom on May 14, 1980. In the first one she told him she would spend a month in his district working for him and would raise up to $1,000 for him if he would support ERA. She said she told him he should have funds from both sides of the ERA issue so he could vote his conscience. She said she then handed him a card but he did not respond and later threw the card on the floor. Defendant further testified that she later was standing by him while he was conversing with others and she handed him the note previously described, and as he walked off with it she told him “ ‘whatever you do—vote your conscience.’ ” Defendant admitted at trial her offers were contingent upon Swanstrom’s favorable vote on ERA, but stated she did not want him to vote for ERA if it was against his conscience. In his testimony, Swanstrom stated he did not remember defendant offering to work for him for a month or to raise money for him, nor did he remember her telling him to vote his conscience.

An understanding of the issues also requires an understanding of the charge upon which defendant was convicted and the statutes involved. The charge, which was by way of an information, alleged that on May 14, 1980, defendant:

* * with the intent to influence the performance of an act related to the employment and function of a public officer, Nord Swanstrom, Representative in the Illinois General Assembly for the Thirty-fifth (35th) Legislative District, tendered to Nord Swanstrom personal advantage and property, to wit: $1,000 to his campaign for his vote in favor of House Joint Resolution Constitutional Amendment #1 (The Equal Rights Amendment) which personal advantage and property Nord Swanstrom is not authorized by law to accept, in violation of the Criminal Code of 1961, as amended, Section 33—la.”

Section 33—1 of the Criminal Code of 1961 provides:

“Bribery. 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 by law to accept.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 33—1(a).

Several other statutes are of significance. Section 1 of “An Act in relation to legislative conduct and prescribing, penalties for the violation thereof” states:

“No member of the General Assembly shall accept or receive, directly or indirectly, any money or other valuable thing, from any corporation, company or person, for any vote or influence he may give or withhold on any bill, resolution or appropriation, or for any other official act.” (Ill. Rev. Stat. 1979, ch. 38, par. 90—1.)

Section 3—101 of the Illinois Governmental Ethics Act provides:

“No legislator may solicit, accept, or agree to accept, gifts, loans, gratuities, discounts, favors, hospitality, or services having an aggregate value of $100 or more in any calendar year from any one person known to have legislative interests, under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence him in the performance of his official duties.
This section does not apply to (1) any political contribution, in cash or in kind, if such contribution is actually used for political purposes; (2) the purchase of tickets to, or advertisements in journals for, political or testimonial dinners; or (3) a commercially reasonable loan made in the ordinary course of business.” Ill. Rev. Stat. 1979, ch. 127, par. 603—101.

Defendant maintains that section 33—1(a) is unconstitutionally vague because of the uncertain meaning of the words “property or personal advantage” and “authorized by law” as used in the statute. This court has previously stated:

“ 0 A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. (Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127; People v. Palkes (1972), 52 Ill. 2d 472, 475, 288 N.E.2d 469, [471].) Moreover, a law fails to meet the requirements of due process if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is or is not prohibited in any given case.” People v. McPherson (1978), 65 Ill. App. 3d 772, 775, 382 N.E.2d 858, 860.

Where a first amendment issue exists, a statute is required to possess a greater degree of specificity than in other contexts. (Smith v. Goguen (1974), 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242.) In Buckley v. Valeo (1976), 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612, the United States Supreme Court stated that the first amendment affords the broadest protection to the discussion of public issues and debate on the qualifications of candidates in order to “ ‘assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ” (424 U.S. 1, 14, 46 L. Ed. 2d 659, 685, 96 S. Ct. 612, 632.) However, that court did not state directly whether lobbying involves an exercise of first amendment rights. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523, the United States Supreme Court held antitrust legislation not to cover lobbying activity, stating that to do so would create a confrontation with first amendment rights. Because lobbying, as that term is used in the broad sense, was involved in the conduct giving rise to defendant’s conviction, we examine section 33—1(a) in the light of the specificity required in first amendment cases.

In People v. Kleffman (1980), 90 Ill. App. 3d 1, 412 N.E.2d 1057, the court held the phrase “personal advantage” in section 33—3(c) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 33—3(c)) not to be unconstitutionally vague. That legislation defined one type of official misconduct as conduct by the official committed “[w]ith intent to obtain a personal advantage for himself or another.” The court described the phrase in the context of the statute to mean “an advantage to a particular person as opposed to the public the officer or employee serves.” (90 Ill. App. 3d 1, 4, 412 N.E.2d 1057, 1061.) A Wisconsin bribery statute making similar use of the phrase “personal advantage” (Wis. Stat. Ann. §946.10 (West 1958)) was held to be sufficiently specific. (State v. Alfonsi (1967), 33 Wis. 2d 469, 147 N.W.2d 550.) In People v. Witzkowski (1972), 53 Ill. 2d 216, 290 N.E.2d 236, one convicted of the offense of interference with a public institution of higher education in violation of section 21.2—2 of the Code (Ill. Rev. Stat. 1969, ch. 38, par. 21.2—2) claimed that statute to be void for vagueness. The charges arose from the defendant’s participation in a sit-in protest in a public building. The supreme court upheld the statute, saying:

“Here the conduct described in the complaint leaves no uncertainty as to the nature of the conduct upon which the charge is based, and as we said in Vandiver, ‘We will not * * * conjecture as to the statute’s application to situations less clear.’ 51 Ill. 2d 525, 530.” 53 Ill. 2d 216, 220, 290 N.E.2d 236, 239.

In the instant case defendant was charged with tendering, with a certain mental state, “personal advantage and property, to wit: $1000 to [Nord Swanstrom’s] campaign.” This charge left no uncertainty as to the nature of that tendered to Swanstrom, namely $1,000 in money to be used in his campaign. We need not conjecture what “personal advantage” might mean in the context of other charges. Here, its meaning was sufficiently specific to meet the specificity required even when first amendment rights are at issue.

The meaning of the phrase “which he is not authorized by law” contained in section 33—1(a) relates to several of defendant’s claims of error. In maintaining that the words lack specificity, she cites International Society for Krishna Consciousness, Inc. v. Rockford (7th Cir. 1978), 585 F.2d 263. An ordinance, whose validity was in issue in that case, stated “ ‘[pjersons authorized by law to distribute literature, or solicit contributions may do so only in public areas of Chicago airports.’ ” (585 F.2d 263, 267.) In holding the enactment void for vagueness, the court determined the language to be ambiguous because it implied there were persons who were not authorized by law to distribute or solicit, yet no guidelines had been provided to determine who those people were. The court further concluded that, under the circumstances, an airport official could make an arbitrary determination that one seeking to distribute or solicit was not authorized by law to do so anywhere within the airport and then impose a prior restraint on that person from doing so.

Section 3—101 of the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1979, ch. 127, par. 603—101) places a limit on those things of value a legislator may receive personally from persons with a “legislative interest,” when the legislator might reasonably infer a major purpose of the donor was to influence performance of his official duties.

The term “legislative interest” is defined as “a substantial economic interest, distinct from that of the general public, in one or more legislative matters.” (Ill. Rev. Stat. 1979, ch. 127, par. 601—106.) We interpret the provision of the second paragraph of section 3—101, which states that the foregoing is inapplicable to campaign contributions properly used, to authorize by law a legislator to receive contributions for general campaign uses even though they are given for the purpose of influencing the legislator’s performance of his official duties. However, we interpret the statutory prohibition against a legislator “directly or indirectly” (emphasis added) receiving things of value “for any vote * * *” (Ill. Rev. Stat. 1979, ch. 38, par. 90—1) to prohibit a legislator from receiving a campaign contribution in exchange for an agreement to vote in a particular way.

We thus conclude that the Illinois statutory scheme defines with specificity “property or personal advantage” which a legislator is “authorized by law” to accept. By analogy, it is also clear that other public officials are “authorized by law” to receive campaign contributions from those who might seek to influence the candidate’s performance as long as no promise for or performance of a specific official act is given in exchange.

Our interpretation of the previously described legislation negates defendant’s claim that section 33—1(a) of the Criminal Code of 1961 is overbroad. When legitimate governmental purposes tend to stifle individual rights or liberties, particularly those connected with the first amendment, and the same end can be achieved by less drastic means, the overbreadth doctrine requires that the less drastic means be used. (Gooding v. Wilson (1972), 405 U.S. 518, 31 L. Ed. 2d 408, 92 S. Ct. 1103; Shelton v. Tucker (1960), 364 U.S. 479, 5 L. Ed. 2d 231, 81 S. Ct. 247.) Defendant maintains that section 33—1(a) prohibits even an offer of campaign services by a prospective worker to a candidate if the worker had the intent to influence the candidate’s performance of his duties. However, we conclude that section 33—1(a) does not do so as long as the candidate neither makes a promise to perform nor performs in consideration of the offer.

Defendant places major emphasis upon her contention that, at least as applied to the facts of this case, section 33—1(a) is unconstitutional. She maintains that (1) all campaign support offered to a candidate is constitutionally protected if offered for a “public interest” issue as opposed to a “private interest issue,” and (2) any offer she may have made of a campaign contribution could not constitute bribery since it was coupled with an offer of campaign support. As this claim is limited to the facts of this case, we consider this issue in the light of our conclusion, later explained, that the evidence was sufficient here for the jury to have found beyond a reasonable doubt that defendant offered property to Swanstrom’s campaign contingent upon his favorable vote for ERA. No statute can be used to punish constitutionally protected activity. (Watts v. United States (1969), 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399.) In order to avoid confrontation with first amendment rights, antitrust legislation has been considered not to cover lobbying activities. (Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523.) However, no showing was made there that the lobbying envisioned consisted of the making of a promise or tender of property in exchange for a vote or promise to make a vote. No cited cases there held that a lobbyist or other citizen has a constitutional right to do so.

Defendant’s theory that offers of campaign support on behalf of a “public interest” issue should be treated differently than those on behalf of a “private interest” stems from section 1—109 of the Illinois Governmental Ethics Act which, for purposes of the Act, defines “lobbying” as follows:

“ ‘Lobbying’ means promoting or opposing in any manner the passage by the General Assembly of any legislative matter affecting the interests of any individual, association or corporation as distinct from those of the people of the State as a whole.” Ill. Rev. Stat. 1979, ch. 127, par. 601—109.

Section 3—101 of the Illinois Governmental Ethics Act also makes a distinction between the receipt of property by legislators from persons who have substantial economic interest in legislation and from those whose interest is only that of the general public. The evidence makes no showing defendant was a lobbyist, but neither section purports to authorize any person, lobbyist or not, to promise or tender property to a legislator in exchange for a vote. Nor does any Illinois statute authorize a legislator to receive the same from any such person. The prohibition against that type of conduct is provided for by other legislation which makes no distinction as to the type of interest the donor may have in the legislation (111. Rev. Stat. 1979, ch. 38, par. 90—1). Thus, the laws of this State make some distinctions between the interest of those promoting legislation, but the distinctions do not apply to all types of such promotion. We are aware of no authority that such distinction is constitutionally required.

Defendant’s theory that because she also offered campaign help to Representative Swanstrom section 33—1(a) could not be used to punish her for also tendering property to him in exchange for his vote on ERA is based upon Street v. New York (1969), 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354. There a conviction for violation of a New York statute prohibiting desecration of the American flag was held to be invalid because the defendant’s conduct in burning a flag was accompanied by the exercise of free speech in decrying the treatment that had been accorded Mr. James Meredith, a civil rights leader who had been shot by a sniper. The court concluded that the conviction could have been based upon the defendant’s statements rather than the burning of the flag.

In Street, the charge made reference to the words of protest used by the defendant and the record of the bench trial did not reveal whether the judge had considered the words as part of the offense. Even assuming arguendo that all of defendant’s spoken words here were constitutionally protected as an exercise of her first amendment rights, those words were not so intertwined with her offense as was the case in Street. The charge specifically set forth her conduct as the tender of the $1,000. The record fully indicates that she was tried on that theory. She produced the evidence of the offer of her campaign support and no argument was made that she should be convicted because of it. The conviction was not rendered invalid for this reason.

Defendant maintains the bribery charge was insufficient because it did not advise her how Swanstrom was “not authorized by law to accept” her alleged offer of $1,000 to his campaign. She relies upon People v. Adams (1978), 64 Ill. App. 3d 547, 381 N.E.2d 738, and People v. Campbell (1972), 3 Ill. App. 3d 984, 279 N.E.2d 123. In Adams, the defendant was convicted of a violation of section 33—3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 33—3(b)) prohibiting a public employee from knowingly performing “an act which he knows he is forbidden by law to perform.” The court deemed the charge to merely state that the defendant had cut down a tree on private property with State equipment on State time. The court deemed the statutory requirement that the defendant knew he was forbidden to do the act to be crucial. The omission was held to render the charge insufficient even though raised for the first time on appeal. The court also noted that because the conduct alleged was forbidden by rule or regulation rather than statute, the charge should have set forth what the rule or regulation was which was violated. Similarly, in Campbell, the court held a charge under the same statutory provision to be erroneous because it failed to allege the defendant knew the conduct to be forbidden.

Under section 33—1(a) of the Code, knowledge by the defendant that the conduct is not authorized by law is not an element of the offense and need not be alleged. The impropriety arose not from rule or regulation but from statute (Ill. Rev. Stat. 1979, ch. 38, par. 90—1). Neither Adams nor Campbell is authority that the statute making the receipt of the property by the legislator unlawful need be set forth in the charge. In People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911, a charge under section 33—1(a) did not even allege that the recipient of the property or personal advantage was not authorized by law to accept the same. The charge was held to be sufficient because the circumstances set forth in the charge clearly indicated that acceptance was unauthorized. Accordingly, we deem the charge here to have been sufficient.

The evidence was sufficient for the jury to have found defendant’s guilt to have been proved beyond a reasonable doubt. Defendant’s testimony supplied much.of the proof. She admitted handing the card to Swanstrom which on its face offered him money for his campaign in exchange for a pro-ERA vote. She admitted the offer was contingent upon his vote in favor of ERA. Defendant places great emphasis on the fact that evidence indicated Representative Swanstrom was undecided as to his vote. If that had any bearing on whether defendant committed the offense, it would be circumstantial evidence that defendant intended to influence his vote by the offer. Defendant also cites some evidence that she told Swanstrom she wanted him to vote his conscience. However, the jury could have disbelieved this testimony, particularly in view of defendant’s testimony that her offer was contingent on his vote.

This case differs from People v. Gokey (1974), 57 Ill. 2d 433, 312 N.E.2d 637, where the court held that defendant’s bribery conviction must be reversed because under the circumstances defendant’s offer was hardly language seriously proposing criminal conduct. In the present case, defendant never contends that her offer was not serious and under the circumstances a jury could reasonably find the offer was serious.

The information charged that defendant “tendered” the money to Swanstrom. It did not use any form of the alternate word “promises” contained in the statute. Defendant makes a substantial argument that defendant did not tender Swanstrom $1,000. The evidence is undisputed that she had no money with her at the time, and the inferences from the circumstantial evidence were that the money would be delivered later. Within the context of contract law she may be correct.

The term “tender” is defined as follows:

“An offer of money. The act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due, in satisfaction of such claim or demand, without any stipulation or condition. * 0 *. e e o
The actual proffer of money, as distinguished from mere proposal or proposition to proffer it. Hence mere written proposal to pay money, without offer of cash, is not ‘tender.’ ” Black’s Law Dictionary 1315 (5th ed. 1979).

However, in People v. Wallace (1974), 57 Ill. 2d 285, 290, 312 N.E.2d 263, 266, the supreme court described the offense of bribery as occurring when the accused “promises or tenders to a public official” in the manner prohibited by the statute, and then stated, “The mere offer or promise with the requisite intent is sufficient to constitute the completed offense of bribery.” (Emphasis added.) The court thus implied that an offer was sufficient to constitute a “tender.” In People v. Mostert (1976), 34 Ill. App. 3d 767, 340 N.E.2d 300, the court cited the foregoing to refute the claim of a defendant that use of the word “tender” in section 33—1 rendered the law unconstitutionally vague. In upholding the trial court’s refusal of an instruction offered by the defendant, the Mostert court held the issue to have been waived but also commented that the defendant’s cases cited in •support of the instruction were “concerned with ‘tender’ in a narrow contractual setting of mutual and concurrent promises, and, as such, [were] clearly distinguishable.” (34 Ill. App. 3d 767, 770, 340 N.E.2d 300, 302.) We conclude that the legislature intended the word “tender” to be used in a sense much broader than its usage in contractual law and to include the offer made by defendant, although she was not shown to have in her possession the money offered.

Prior to trial the court denied defendant’s request for an evidentiary hearing on her motion to dismiss the charges because of discriminatory selective prosecution. In support of her motion she made an offer of proof, the material substance of which was the following. Defense counsel stated that if called, David Epstein, parliamentarian of the House of Representatives and a lawyer of 12 years’ experience, would testify that: (1) He is often called upon to give official and unofficial advice to members as to the propriety of conduct; (2) he had seen offers of contributions conditioned upon a vote similar to that attributed to defendant; and (3) in his opinion, citizens are not prohibited by section 33—1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33—1(a)) from offering to pledge campaign contributions contingent upon a vote.

Defendant’s counsel also stated that if called, Representative Gary Hannig would testify that: (1) He received a contribution of $300 from a group called Stop-ERA in March 1980; (2) House of Representative members generally knew Stop-ERA was giving from $300 to $2,000 per member to those who voted against ERA or did not vote on the issue; (3) he received from Stop-ERA Chairman Phyllis Schlafly a note over her signature which stated:

“STOP ERA has tremendous strength in your area. We had great returns from the 1-day anti-ERA ad. Stand firm and we will stand with you—.”

Defense counsel also stated he would ask Representative Hannig whether, as stated on police reports, he was offered $10,000 to vote for ERA. Defendant also offered to show that Representative Swanstrom had contacted the Speaker of the House of Representatives about defendant’s approaches to him and that they had gone to the Department of Law Enforcement prior to contacting the State’s attorney of Sangamon County-

In Yick Wo v. Hopkins (1886), 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064, the Supreme Court found equal protection was violated where a county board, having unlimited discretion to grant operating licenses to laundries located in wooden buildings, granted those licenses only to laundries operated by Caucasians and denied them to those operated by Chinese. In Oyler v. Boles (1962), 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501, the prohibition against such denial of equal protection of law was extended to the prosecution of criminal cases. The court required that for an accused to invoke a defense based on that theory, he must show not only selectivity but also the application by law enforcement officials of an unjustifiable or impermissible standard in making the selection.

In People v. Lewis (1979), 73 Ill. App. 3d 361, 386 N.E.2d 910, defendants argued the trial court erred in denying, without an evidentiary hearing, their pretrial motions to dismiss the indictment based on discriminatory prosecution. Defendants alleged that one of the bases for their selection, was their exercise of their first amendment rights of free speech and free association. The court stated:

“The State may not deliberately base its decision to prosecute an individual on the constitutionally protected grounds of race, religion, or the exercise of first amendment rights. (United States v. Falk (7th Cir. 1973), 479 F.2d 616; United States v. Berrigan (3d Cir. 1973), 482 F.2d 171; United States v. Steele (9th Cir. 1972), 461 F.2d 1148.) However, there is a presumption that any prosecution for violation of the criminal law is undertaken in good faith. (Falk.) To overcome this presumption and to justify the holding of an evidentiary' hearing, the burden is on the defendant to present sufficient facts to make out at least a prima facie case of improper discrimination. United States v. Scott (9th Cir. 1975), 521 F.2d 1188.
‘This requires that appellant first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted. Secondly, appellant must show that his selection was based on an impermissible ground such as race, religion or his exercise of his first amendment right to free speech.’ Scott, 521 F.2d 1188, 1195.” (73 Ill. App. 3d 361, 364-65, 386 N.E.2d 910, 914.)

The court there found defendants’ motion satisfied the first requirement by stating facts which indicated that others were not criminally prosecuted for their conduct but the motion did not meet the second requirement, as there was no showing that the selection for prosecution was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

Here, on the other hand, defendant has offered evidence sufficient to show that she was part of a group protected because they were exercising their first amendment rights in support of ERA. She has not offered to show that substantial evidence exists that designated others, not part of her group, were offering campaign contributions in exchange for a vote. Evidence that ERA opponents were offering contributions to legislators and sent one of them a note indicating they had “great returns” from an advertisement, admonishing him to “stand firm” and they would “stand with” him was not of such caliber to support prosecution.

The proffered testimony of the parliamentarian of the House of Representatives had little probative value on the issue of selective prosecution. Whether the law permits a legislator to receive a campaign contribution conditioned upon an agreement to vote in a particular way and whether a citizen may offer such a contribution was a question of law for the court. Moreover, the issue of selective prosecution concerns the failure of the State to prosecute others who may be guilty and not the prosecution of those who are not guilty. Evidence that the parliamentarian may have been giving good faith advice to legislators that offers similar to that found to have been made by defendant here may be legally accepted would be insufficient to prove that to the knowledge of the prosecutor this had happened in particular cases.

Because of the insufficiency of evidence against others, this case differs from United States v. Steele (9th Cir. 1972), 461 F.2d 1148. There a defendant, who was convicted of refusing to answer the questions on the census form, claimed he had been singled out for prosecution because he had publicly advocated noncompliance with census requirements. Defendant showed that at least six others had committed the same offense and were not prosecuted. The reviewing court concluded that the names of these six should have been known through the information gathering system used in the census. A special background dossier had been prepared on defendant by census technicians. The court stated that the government is not obligated to prosecute all offenders, but no effort was made by the government to justify the prosecution of defendant as a result of random selectivity. The only plausible explanation for that defendant’s prosecution was his explanation that he was being discriminated against.

We deal summarily with defendant’s remaining claims. In addition to the charge for which she was convicted, defendant was charged with, but acquitted of, solicitation of legislative misconduct (Ill. Rev. Stat. 1979, ch. 38, par. 90—1). She claims the verdicts were inconsistent. We need not examine her claim for neither the legal nor logical inconsistency between verdicts of conviction and acquittal in the same case vitiate the verdict of conviction if it is properly supported by the evidence. People v. Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 755; People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186; see also People v. Barker (1979), 78 Ill. App. 3d 686, 397 N.E.2d 552.

Once during closing argument, the prosecutor argued to the jury that the prosecution was not seeking “prison” for defendant but was asking for a conviction. An objection was sustained, and the court informed the jury that only the court had sentencing power. As candidly admitted by the prosecutor, the remark was improper. (People v. Klapperich (1939), 370 111. 588, 19 N.E.2d 579.) However, the defendant improperly implied in argument that the prosecution was a politically motivated charade designed to single out an innocent defendant for improper aims. Under the circumstances, the remark was not reversible error. Defendant’s post-trial motion based on newly discovered evidence was properly denied. The new evidence claimed was cumulative to immaterial matter offered at trial. People v. Jones (1975), 26 111. App. 3d 78, 325 N.E.2d 56.

For the reasons stated, we affirm.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS STEVEN WYS, Defendant-Appellant.
    Third District
    No. 81-21
    Opinion filed January 20, 1982.
    Rehearing denied February 18, 1982.

      Robert Agostinelli and G. Joseph Weller, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant, Steven Wys, appeals his convictions of the offenses of reckless conduct (Ill. Rev. Stat. 1979, ch. 38, par. 12—5) and aggravated battery of a peace officer (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(b)(6)) following a jury trial on December 8 and 9 of 1980. On appeal, defendant Wys urges us to reverse his convictions contending that the trial court improperly refused to submit to the jury his tendered instructions on the offense of resisting or obstructing a peace officer, that certain improper remarks were made by the prosecutor during closing argument denying him a fair trial, and that his sentence was excessive.

Officer Fisher of the East Peoria Police Department testified that he and Officer Trigourea responded to a call from the Newell Hotel reporting that someone had discharged a fire extinguisher and they went to defendant’s room to question him. Defendant denied the accusations and became loud and disorderly and began cursing the officers. Defendant was then placed under arrest and a struggle ensued. During the course of the struggle, defendant turned and kicked Officer Fisher’s leg or knee. This conduct was charged in count I of the indictment returned against the defendant, alleging aggravated battery in violation of section 12—4(b) (6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(b)(6)). At the police station, Wys continued to argue and direct profanities at the police officers and refused to empty his pockets or remove his boots. Another struggle resulted, during the course of which defendant kicked Officer Fisher in the groin. This was the basis for the second count of the indictment charging defendant with a second violation of that section. Thereafter, another member of the police department led defendant to the cell area of the station. As defendant was being led toward the area, he cursed at Officer Fisher and spat in his face. This was the act complained of in the third count of the indictment returned against defendant charging him with the offense of aggravated battery upon a police officer.

Officer Fisher’s testimony related these acts and the circumstances surrounding the arrest and was largely corroborated in this respect by Officer Trigourea who was present with Officer Fisher on the night in question. No other witnesses testified and defendant presented no evidence in his behalf. At the instructions conference, defendant tendered instructions defining the offense of resisting or obstructing a police officer and the issues thereon (Illinois Pattern Jury Instructions, Criminal, Nos. 22.09, 22.10 (2d ed. 1971)), but such instructions were refused on the ground that the offense of resisting or obstructing a peace officer was not an included offense, and was therefore not required to be submitted to the jury. The jury did receive an instruction on reckless conduct as a lesser included offense.

The jury found the defendant guilty of the lesser included offense of reckless conduct on count I, and brought in a verdict of guilty as charged as to counts II and III. Judgment was entered upon the verdict and defendant was sentenced to 364 days for reckless conduct, and two terms of 5 years’ imprisonment for aggravated battery, all of which were to run concurrently.

Defendant’s first assignment of error concerns the propriety of the trial judge’s refusal to give to the jury his tendered instructions concerning the offense of resisting or obstructing a peace officer as a lesser offense of the crime of aggravated battery of a police officer. At the instructions conference, defendant urged the jury to be instructed on the lesser crime on the grounds that the crime of resisting or obstructing a peace officer was a lesser included offense of aggravated battery. The trial judge refused the instruction reasoning that bodily harm was not a necessary element of resisting or obstructing a peace officer and therefore was not a lesser included offense. The State likewise argues that the proposed instruction was not a lesser included offense, but for different reasons. Our examination of the transcript of the instruction conference and the relevant authorities leads us to the conclusion that though the trial judge reached the correct result, he did so for the wrong reasons.

A defendant’s entitlement to a lesser included offense instruction is dependent upon a showing that (1) the lesser offense is included in the offense charged, and (2) that the charged greater offense requires the jury to decide a disputed factual element which is not required for conviction of the lesser included offense. People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189.

Section 2—9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2—9) defines a lesser included offense as an offense which contains some but not all of the elements of the greater offense and which contains no element not included in the greater. (See People v. Delk (1976), 36 Ill. App. 3d 1027, 1041, 345 N.E.2d 197, 209.) This simple statement of the definition lends little to the proper focus in determining a lesser included offense since we note that three different approaches aré used to test an offense as a lesser included offense. Under this strict test the elements of the greater offense are compared with the elements of the lesser offense. If all of the elements of the lesser offense are included within the greater and the lesser does not have any element not included in the greater, the lesser is deemed to be a lesser included offense. Under this approach defendant’s proposed instruction on the offense of resisting or obstructing a peace officer could never be lesser included since an element present in the lesser offense (i.e., resisting or obstructing) is an element not required for conviction of the greater. As such, resisting or obstructing a peace officer is not a lesser included offense of the offense of aggravated battery upon a peace officer, with which defendant was charged. This abstract approach, however, was rejected by the Illinois Supreme Court in Cramer, wherein the issue there presented was precisely the issue we consider: a defendant’s entitlement to a lesser included offense instruction. The court in Cramer stated:

“The United States Supreme Court has never analyzed the included-offense doctrine, when applied to a defendant’s request for an included-offense jury instruction, from the perspective of a comparison of the abstract elements of the statutes under which the crime was charged and the statute on which defendant grounded the tendered instruction, the perspective the State urges us to adopt in the instant case. In fact, the court has never even discussed that test as articulated in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, or even cited that opinion or its progeny in the context of the issue presented here. Rather, as can be seen from the excerpt of Sansone quoted above, the analysis has focused upon the crime charged in order to determine whether the offense upon which an instruction is sought is included within it. [Citations.]” 85 Ill. 2d 92, 98, 421 N.E.2d 189, 191.

The second approach required of us by Cramer looks to the offense charged in the indictment to determine if the offense is a lesser included offense. Thus, in a case where some of the elements of the crime charged comprise a lesser included crime, the defendant, if the jury could rationally acquit him on a greater offense and convict on the lesser, is entitled to an instruction on the lesser offense. 85 Ill. 2d 92, 421 N.E.2d 189, 192; United States v. Stavros (7th Cir. 1979), 597 F.2d 108, 112.

The final approach, fashioned by United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, to determine if an offense is a lesser included offense looks at the evidence offered by the prosecution on the offense at issue. Under this test, the defendant is entitled to a lesser-offense instruction if, under the evidence presented, the crime is included within the one charged and the' evidence is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater, and guilty of the lesser included charge. We express no view here whether this test may, in a proper case, entitle a defendant to an instruction on an offense which,

either in the abstract or under the indictment, is not lesser included but which, on the evidence presented, is a lesser included offense. Suffice to say that upon this test, we, as the supreme court did in Cramer (85 Ill. 2d 92, 98, 421 N.E.2d 189, 191), express no opinion, as such is not necessary to the present decision.

All three of these methods are useful in determining if an offense is a lesser included offense, but the establishment of an offense as a lesser included offense does not automatically give rise to a correlative right to have the lesser included instructions submitted to the jury. The lesser included offense is properly submitted only where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser crime. (85 Ill. 2d 92, 98, 421 N.E.2d 189, 191-92; Sansone v. United States (1965), 380 U.S. 343, 349-50, 13 L. Ed. 2d 882, 888, 85 S. Ct. 1004, 1009.) This statement is aptly demonstrated by the factual circumstances of Cramer. In Cramer, defendant was convicted of the offense of theft of property (a motor vehicle) having a value in excess of $150, and sought an instruction on a lesser offense under section 4—103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 4—103(a)(1)). The court there held that the instruction was properly refused since the lesser offense could be proved under the same facts necessary to convict of theft, as they both required the same elements to sustain a conviction. The lesser offense was therefore properly refused as the charged greater offense did not require the jury to find a disputed factual element in the greater offense which was not required for conviction of the lesser.

Likewise, in the case at bar, assuming that resisting or obstructing a peace officer is a lesser included offense to the three counts of aggravated battery, the proposed lesser included offense instruction was properly refused since the greater offense did not require the jury to find a disputed factual element not required for conviction upon the lesser. The only elements required for conviction on the greater offenses, which were not required for conviction of the lesser included offense, were the elements of harm to Officer Fisher, and physical contact of an insulting or provoking nature with him. With respect to the proof on these issues there is no dispute. The State produced evidence of the pain suffered by Officer Fisher as a result of the acts alleged in counts I and II, and of the defendant spitting on Officer Fisher, alleged as the basis for count III. Defendant did not introduce testimony to the contrary and has not, in this appeal, challenged the evidence of harm or physical contact of an insulting or provoking nature as insufficient to establish his conviction for the charged offenses. We find that there was no disputed element contained in the greater offense of aggravated battery upon a peace officer which was not required for the conviction of the lesser and that defendant’s proposed instruction on the lesser offense of resisting or obstructing a peace officer was properly refused.

Defendant further argues that he is entitled to submit to the jury any instruction for an offense properly made out by the evidence in the case, to accord him the full benefit of the reasonable doubt standard, even, if the offense is not a lesser included offense of the crime charged, citing Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382. We find this case inapposite. Beck held simply that a State capital offense statute which prohibited the giving of a lesser included offense instruction, where there is evidence presented from which a jury could convict of the lesser and acquit of the greater, is violative of the defendant’s due process rights. Beck does not involve the situation where an instruction is submitted solely as a lesser offense not properly submitted as a lesser included offense, and hence is not controlling on the argument defendant advances. Rather, we believe People v. McCollough (1974), 57 Ill. 2d 440, 313 N.E.2d 462, controls the present argument. In McCollough, defendant contended that a statute which allowed the prosecutor to charge for either involuntary manslaughter or reckless homicide was violative of his right to equal protection and due process of law when the greater statute provided for harsher penalties under the same circumstances. The court there held that where the conduct of the defendant is violative of two separate statutes providing different punishments, the defendant may be charged with either in the discretion of the State’s Attorney. (See also People v. Brooks (1976), 65 Ill. 2d 343, 347, 357 N.E.2d 1169, 1172; People v. Buffalo Confectionery Co. (1980), 78 Ill. 2d 447, 458, 401 N.E.2d 546, 551.) The court there stated:

“The contention that the statute grants undue discretion to the prosecutor in determining the offense for which he will prosecute is without merit. With respect to a similar contention, this court said in People v. Rhodes (1967), 38 Ill. 2d 389, 396, in which the defendant had been convicted of attempted theft: ‘The defendant’s complaint that he should have been charged only with intimidation, which at the time of the events herein related was a misdemeanor, cannot be entertained. The State’s Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged.’ The kind of determination committed to the discretion of the State’s Attorney by the statute in this case is the same kind of discretion that is committed to him with respect to a host of other offenses, and is exercised by him every day. It is not, in our opinion, an unconstitutional delegation of authority.” 57 Ill. 2d 440, 444, 313 N.E.2d 462, 464.

Since the prosecutor is thus properly given the power and authority to so charge for the greater offense of two offenses proscribing the same conduct with different penalties, we believe the defendant is not entitled to submit to the jury the instructions for the offense with which he would have wished to be charged, but was not. Absent a proper lesser-included-offense instruction, defendant is simply hot entitled to have a jury instructed on a lesser offense also violated by his conduct.

The defendant next requests a new trial because the prosecutor, during his rebuttal argument to the jury, made a number of improper comments. According to the defendant, the combined effect of these asserted improprieties denied him a fair trial. We find that all objections concerning this closing argument are waived. Since the defendant did not raise this issue in his post-trial motion, he has not preserved the issue for review. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Pallardy (1981), 93 Ill. App. 3d 725, 417 N.E.2d 851.

The record discloses that the prosecutor’s statements claimed to be improper were generally responsive to argument in behalf of defendant and so did not constitute plain error within Supreme Court Rule 615 (73 Ill. 2d R. 615).

The defendant claims that his sentence of 5 years’ imprisonment for aggravated battery was excessive considering the minimal bodily harm sustained by the police officer. Aggravated battery is a Class 3 felony (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(b)(6)).

The maximum penalty for a Class 3 felony is 5 years. Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(6).

A reviewing court may alter the sentencing judge’s disposition only upon a finding of an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) After a careful review of the record, we find the defendant’s sentence to be proper.

The defendant’s reliance upon People v. Dimond (1977), 54 Ill. App. 3d 1036, 370 N.E.2d 686, is misplaced. At Dimond’s sentencing hearing, the prosecution offered no evidence in aggravation. The presentence report showed that Dimond had been honorably discharged from the armed forces. He was intoxicated at the time of the offense and inflicted minimal actual harm. The Dimond court reduced that defendant’s sentence because it was not justified by the facts in the record. The facts in the instant case are very different from those in Dimond. Wys, while only . 24 years old, had an extensive criminal history. There had been repeated attempts and failures to rehabilitate the defendant. The trial court com-merited at length upon these factors. We find no abuse of discretion in the trial judge’s sentencing.

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

Affirmed.

MILLS and LONDRIGAN, JJ„ concur.