author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MYRON B. STRAIT, Defendant-Appellant.
    Second District
    No. 81—728
    Opinion filed July 7, 1983.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Frank J. Giampoli, of Geneva, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After a bench trial, defendant, Myron B. Strait, a 34-year-old male, was convicted and sentenced for the offense of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11—1) of his six-year-old stepdaughter. The court also found defendant guilty of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11—4(b)) but did not enter a judgment of conviction on that finding. Defendant appeals.

I

Defendant first contends that the convictions for rape and indecent liberties with a child must be reversed because the critical issues of penetration and identification were not proven beyond a reasonable doubt.

We first note that the trial court did not enter a judgment of conviction on its finding that defendant was guilty of indecent liberties with a child. Therefore, no issue with reference to the offense of indecent liberties is properly before us on appeal. <■

There was clear- and convincing testimony by the victim’s eight-year-old brother that established that their stepfather, after giving wine to both children, inserted his penis into the vagina of his six-year-old stepdaughter. While defendant contends that the brother’s testimony was impeached, an examination of the record does not bear out this contention. In addition, the evidence disclosed considerable bleeding on the part of the victim and established a laceration in her vagina, which was sufficiently serious to cause her doctors to have her transferred to Children’s Hospital in Chicago for repair surgery. Tests taken at the hospital disclosed the blood alcohol content of the six-year-old victim to be 257 milligrams per deciliter.

The credibility of the witnesses and the weight to be given their testimony rest with the trial judge (People v. Brownson (1982), 103 Ill. App. 3d 476, 480, citing People v. Akis (1976), 63 Ill. 2d 296). This court will not reverse the finding of the trial judge unless the evidence is so unsatisfactory, unreasonable, or improbable as to create a reasonable doubt of defendant’s guilt. (People v. Edmond (1979), 76 Ill. App. 3d 540, 545, citing People v. Reaves (1962), 24 Ill. 2d 380.) The evidence substantiates the judgment of the trial court on both issues of penetration and identification.

II

Defendant also contends that there was insufficient evidence of force to establish the offense of rape.

People v. Riley (1967), 84 Ill. App. 2d 296, is dispositive of this issue. Force is inherent in any act of intercourse with a six-year-old girl and a child of that age is conclusively presumed to be unable to legally consent to an act of carnal knowledge. 84 Ill. App. 2d 296, 300.

Defendant contends that Riley is in direct conflict with People v. Mueller (1973), 54 Ill. 2d 189, where our supreme court reversed a conviction for deviate sexual assault upon a seven-year-old girl holding that proof of actual force or threat of force was required. The Mueller decision was based upon language of section 11—3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 11—3(a)), which contains the requirement “by force or threat of force.” In reaching its conclusion, the supreme court in Mueller relied heavily upon the committee’s comments accompanying that section and which were particularly applicable to that section.

That decision has no application to the offense of rape, section 11—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11—1). That statute defines rape and states that “(a) *** Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations: (1) Where the female is unconscious; or (2) Where the female is so mentally deranged or deficient that she cannot give consent to intercourse.” It is frivolous to suggest that a child of six, particularly with a blood alcohol content of 257 milligrams per deciliter, is not so mentally deficient that she cannot consent to intercourse.

III

Defendant’s next contention is that the trial court abused its discretion in sentencing the defendant when it considered as evidence in aggravation numerous improper entries in the presentence report.

There is no merit to this contention. A review of the record discloses that, prior to the commencement of the sentencing hearing, the trial court gave both the State and defendant the opportunity to make any motions concerning corrections or additions to the presentence report. Defense counsel did make some minor suggestions for changes which the court made. The court also agreed with defense counsel that it would not in any way consider any reference to the criminal record of the brother shown in the report. Defense counsel otherwise suggested that he had no major changes in the report and that any minor discrepancies would be clarified by testimony. Since defendant had an opportunity to make corrections in the presentence report and failed to do so, defendant cannot raise the issue of improper entries in the presentence report for the first time on appeal. People v. Horstman (1981), 103 Ill. App. 3d 17, 23, citing People v. Meeks (1980), 81 Ill. 2d 524.

Further, our examination of the suggested improprieties discloses that they are minor in nature and there is no showing whatsoever that the sentence of the trial judge was in any way based on such evidence. Absent any indication that incompetent evidence was actually considered in sentencing defendant, it must be presumed that the court disregarded it unless the record discloses evidence to the contrary. People v. Mosley (1980), 87 Ill. App. 3d 903, 905.

IV

Defendant’s fourth argument is that the court should remand this cause for resentencing without application of the extended-term provision under section 5—5—3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par, 1005—5—3.2(b)). Defendant contends that before the court can impose an extended-term sentence the court must commit defendant to an agency for diagnostic study of his physical and mental condition. Defendant cites People v. Jerrick (1978), 62 Ill. App. 3d 914, to support this proposition. Jerrick is inapplicable as that decision interprets a requirement of section 5—8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—2) prior to the amendment of that section by Public Act 80— 1099. The amendment was effective February 1, 1978, and omitted the mandatory requirement for a diagnostic examination. Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2.

Further, at the sentencing hearing in this case, the judge made the following finding: “I will make the specific finding that this offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. I will sentence this defendant to 60 years in the Department of Corrections.” Having made this finding, the trial judge was empowered to impose an extended-term sentence. (People v. Lenninger (1980), 88 Ill. App. 3d 801, 806-07.) The record supports the judge’s finding that this offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and that an extended term could be imposed by the trial judge.

V

Defendant’s final argument is that the trial court abused its discretion in sentencing the defendant to 60 years’ imprisonment and asks the court to reduce the sentence to a minimum term authorized by law.

Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)) grants this court the power to reduce a sentence imposed by the trial court. However, it is firmly established that the imposition of a sentence is a matter of judicial discretion and that, absent any abuse of that discretion, the sentence of the trial court may not be altered upon review. (People v. Cox (1980), 82 Ill. 2d 268, 281; People v. Perruquet (1977), 68 Ill. 2d 149, 153.) Moreover, the imposition of an extended-term sentence is likewise a matter of judicial discretion. People v. Darnell (1981), 94 Ill. App. 3d 830, 836.

In this case, there was not an abuse of discretion. At the sentencing hearing, the court found no mitigating factors. In aggravation, the court found that defendant’s criminal conduct caused serious physical harm and that he knew or should have known that such harm would be the result of his acts. The court also found that the imposition of such a sentence was necessary to deter others from the same crime.

Defendant cites People v. Nelson (1970), 127 Ill. App. 2d 238, and People v. Clark (1977), 50 Ill. App. 3d 768, for the proposition that this court should reduce the sentence in order to conform to the constitutional mandate that the sentence be commensurate with the nature of the offense. However, in both of those cases, no serious injury was sustained by the victims. In evaluating the brutality and heinousness of an offense, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated. (People v. Grady (1982), 107 Ill. App. 3d 970, 977.) In this case, the child was severely injured. Further, before imposing his sentence, the trial judge noted the intoxication of the six-year-old victim and found the conduct of defendant to be exceptionally brutal and heinous indicative of wanton cruelty.

Finally, defendant cites People v. John (1972), 5 Ill. App. 3d 544, for the proposition that the judge did not consider defendant’s rehabilitative potential and that the length of the sentence frustrates the goal of rehabilitation. Concerning a defendant’s rehabilitative potential, the trial judge is not required to detail for the record the process by which he concluded that the penalty he imposed was appropriate. (People v. La Pointe (1981), 88 Ill. 2d 482, 493.) Considering the total circumstances shown by the evidence in this case, the sentence of 60 years was most appropriate.

The judgment and sentence of the trial court are affirmed.

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS GROVER, Defendant-Appellant.
    Second District
    No. 82—43
    Opinion filed July 5, 1983.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Dennis Grover, was found guilty after a jury trial of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11—1) in the circuit court of Lake County and was sentenced to 15 years’ imprisonment, to run concurrently with a previously imposed sentence for theft. He appeals, challenging the admission of an alleged spontaneous utterance by the victim, a ruling allowing the jury to be informed of the victim’s whereabouts, the sufficiency of the evidence and the prosecutor’s closing argument.

On September 1, 1981, the date of the instant offense, Renee Springs, the victim, was 15 years old. She had been diagnosed as having a behavorial disorder, but was not retarded. At approximately 7 p.m. on that date, Peggy Loving Connors (hereinafter referred to as Mrs. Loving) overheard a young man and a girl arguing outside her kitchen window. She heard a female voice saying, “Leave me alone. I want to go home,” and observed the man striking the girl. The girl was crying. The man, later identified as defendant, had the girl pinned down on the steps and was telling her to shut up. Loving turned away from the window but continued to hear slapping noises and the sound of crying. Loving again looked out the window and observed defendant on top of the girl. She testified to certain facts explicitly evidencing an act of sexual intercourse. The girl was crying and saying she wanted to go home. Mrs. Loving then opened her front door and looked at defendant. Defendant got up, and the girl began to run to a nearby field. Defendant ran after her. Mrs. Loving identified the girl as Renee Springs, and stated she (Renee) was hysterical at that time.

Officers Luis Marquez and Steven Harvey were dispatched to the scene and came upon defendant in a field near Loving’s house. Defendant was holding Renee Springs by the arms. Defendant released the girl and began to walk away. Officer Marquez several times ordered defendant to stop, and then finally stopped him. Defendant, who identified himself as Jessie Allen, was eventually placed under arrest. The girl was crying and she did not want to talk to anybody. Officer Harvey attempted a conversation with her when an elderly woman, Celestine Wright, came up and helped calm Renee down.

Mrs. Celestine Wright was Renee’s Sunday School teacher. She testified she was driving by the scene when she observed Renee standing by a police officer hysterical and crying. Mrs. Wright went over to her and heard her repeatedly saying, “He messed with me. He messed with me.”

Renee was taken to a hospital, where an examination revealed an abrasion on her knee and a crusted fluid outside her vagina. Laboratory analysis of Renee’s blouse and of defendant’s underwear revealed the presence of semen and spermatozoa. Vaginal, rectal and oral swabs taken from Renee failed to indicate the presence of seminal material.

Defendant was interviewed concerning the pending rape charge by Officer Howard Pratt. After being advised of his Miranda rights, defendant stated that on September 1 he had met a black female while walking down the sidewalk, and that they eventually had intercourse beneath the bushes alongside a two-story building. Defendant denied struggling with the victim or using any force. He stated that after intercourse was completed the girl began to act in a manner which he variously described as “strange,” “funny” or “goofy,” and said that she asked to be taken to North Chicago.

The victim in the instant case did not testify. Upon the conclusion of the State’s case and the denial of a motion for directed verdict, the defense rested without presenting evidence.

Defendant first contends that the trial court erred in admitting as spontaneous declarations certain statements made by Renee Springs to Mrs. Wright. Defendant claims reversible error occurred because the State failed to prove that the statement was not made in response to questioning by the police, and because it was not demonstrated that the declarant was unavailable to testify at trial. See People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865; Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597,100 S. Ct. 2531.

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement caused by the event or condition, is admissible as an exception to the hearsay rule. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 803.3, at 426 (3d ed. 1979).) In order to be admissible under this exception, there must have been: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence. (People v. Chatman (1982), 110 Ill. App. 3d 19, 26, 441 N.E.2d 1292, quoting People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) In resolving the question of whether it is reasonable to believe that the declarant acted without thought, or whether there existed the possibility that declarant had deliberated in making a false statement, the court is required to consider all of the circumstances surrounding the making of the statement, including the time which elapsed between the occurrence and the declaration, and the distance which the declarant traveled from the scene of the occurrence before speaking. (People v. Weinger (1981), 101 Ill. App. 3d 857, 873, 428 N.E.2d 924.) Whether a statement was sufficiently spontaneous to qualify for admission in evidence under this exception to the hearsay rule is a preliminary question for determination by the trial court. (People v. Lang (1982), 106 Ill. App. 3d 808, 810, 436 N.E.2d 260; People v. Cherry (1980), 88 Ill. App. 3d 1048, 1053-54, 411 N.E.2d 61, 66.) The court’s ruling will be held an abuse of discretion only if the statements are not so intimately connected with the event as to indicate a lack of premeditation. (People v. Lang; People v. Cherry.) The fact that the statement has been made in response to a question will not itself deprive an utterance of the requisite spontaneity to establish its admissibility. Thus, statements made in response to general inquiries as to what has occurred may nevertheless be spontaneous (People v. Miller (1978), 58 Ill. App. 3d 156, 373 N.E.2d 1077; People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25), as may statements made in response to more detailed inquiries which probe for the existence of specific criminal activity (People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395 (statement by mortally wounded victim made in response to the question, “Who did this to you?”)).

In the present case, Mrs. Wright testified that when she went over to Renee, Renee was hysterical and crying. Mrs. Wright asked her what was wrong, and Renee kept saying, “He messed with me. He messed with me.” Mrs. Wright then hugged Renee, attempting to calm her, during which time Renee continued to repeat this phrase. Mrs. Wright testified in chambers that she believed an officer had attempted to interview Renee before she arrived. However, the testimony of Officer Harvey makes it evident that such attempts were fruitless. The officer stated that when he approached Renee she was hysterical and crying, and although he attempted to talk with her about the incident she did not wish to talk with anyone and was only interested in finding her purse. Thereafter, Mrs. Wright arrived on the scene. In view of this substantial evidence of Renee’s hysterical condition at the time of her statements, which were made only minutes after the act occurred.and at a place only a short distance from the scene of the crime, the trial court was within its discretion in finding that she lacked an opportunity under the circumstances to fabricate, and that her statement was not the product of reflective thought. (See People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395.) Accordingly, the trial court properly determined that the necessary foundation had been laid to establish Renee’s extrajudicial statement as a spontaneous utterance.

In this regard, defendant’s reliance upon People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865, is misplaced. Taylor involved a declarant who, while appearing nervous, made no comment or complaint to available witnesses until after one of them had twice inquired as to whether he could help her. Under those circumstances, where the framing of questions prompted the voicing of the complaint and where there was nothing that could be deemed an uncontrolled and spontaneous utterance of outraged feelings, the declaration could not be considered a spontaneous utterance. In the present case, the trial court could have concluded that Renee had no reasonable opportunity to voice a prior complaint to Mrs. Loving at the time the latter appeared in the door, given indications that Renee was engaged at that time in trying to free herself from defendant’s restraint. Moreover, Renee’s hysterical condition at the time of the statements was well-established, unlike the declarant in the Taylor case.

Relying upon Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, defendant further contends that the sixth amendment precludes admission of hearsay evidence against a defendant unless it is shown both that the statement bears adequate “indicia of reliability,” and that the declarant is unavailable for cross-examination. He argues that neither was demonstrated here. We disagree.

The reliability of the statement was established by virtue of the fact that it qualified as an excited utterance. Such statements have special reliability because of the lack of time to reflect and fabricate. (People v. Pointer (1981), 93 Ill. App. 3d 1064, 1068, 418 N.E.2d 1; People v. Cherry (1980), 88 Ill. App. 3d 1048, 411 N.E.2d 61.) Further, the unavailability of Miss Springs was established by a stipulation entered by the parties that she was in the hospital at the time of trial. Although defendant claims that his trial counsel was “forced” to enter into this stipulation for tactical reasons, there is nothing in the record to indicate that the substance of the stipulation was inaccurate or fraudulent. We also note that defense counsel at trial did not request further inquiry into Miss Springs’ medical condition. We, therefore, conclude that Miss Springs’ unavailability was adequately established. We also conclude that the statements, “He messed with me. He messed with me” were statements indicating Renee’s excited mental condition shortly after the rape, and the reliability of such statements comes not from the reliability of the declarant but from the circumstances under which the statements were made. (People v. Pointer; cf. Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, where the reliability of former testimony depends upon the reliability of the declarant.) Under these circumstances, we find no error in the trial court’s admission of the statements.

Defendant next contends that the trial court erred in permitting the State to explain to the jury that Renee Springs was unable to testify because she was hospitalized. Defendant asserts that this explanation substantially prejudiced the accused and carried with it “the unavoidable implication that the defendant’s conduct had necessitated the complainant’s hospitalization.” Defendant claims that this evidence was irrelevant and analogizes this case to others in which error was found in permitting proof that a crime victim required medical treatment. (People v. Johnson (1979), 76 Ill. App. 3d 147, 394 N.E.2d 919; People v. Nickolopoulos (1962), 25 Ill. 2d 451, 185 N.E.2d 209.) Defendant’s analogy fails, however, for there was no attempt in the instant case to link the victim’s hospitalization with the impact of the crime. Defendant concedes that the explanation of Renee’s whereabouts was admitted solely to rebut the adverse inference to the prosecution which would arise from its failure to call an obvious State witness who could testify to material facts. (See People v. Deskin (1978), 60 Ill. App. 3d 476, 376 N.E.2d 1086.) Evidence concerning Renee’s whereabouts was relevant to the question of whether such an adverse inference should arise. (People v. Pagan (1972), 52 Ill. 2d 525, 537, 288 N.E.2d 102; People v. Johnson (1970), 45 Ill. 2d 38, 46, 257 N.E.2d 3.) Thus, the evidence was relevant to a potential issue in the case. It was not presented in any manner likely to inflame the passions of the jurors or prejudice the defendant, and in fact the wording of the stipulation was at the request of defense counsel. Accordingly, it was properly received in evidence.

Defendant next contends that the evidence was insufficient to establish his guilt of rape beyond a reasonable doubt. Defendant does not deny having sexual intercourse with Renee Springs, but contends that there was insufficient evidence adduced at trial to establish that the act was accomplished by force and against her will.

Reviewing courts have a special duty of carefully examining the evidence in rape cases (People v. Lucien (1982), 109 Ill. App. 3d 412, 440 N.E.2d 899; People v. Utinans (1977), 55 Ill. App. 3d 306, 314, 370 N.E.2d 1080), but this duty does not permit the court simply to substitute another view of the evidence for that found credible by the finder of fact. (People v. Lucien.) The existence of conflicting evidence will not justify a reversal of the trial court, but only evidence that is so palpably contrary to its findings or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt of guilt will warrant a reversal of the accused’s conviction. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.

Defendant notes that Renee Springs did not testify in this case and contends that the circumstantial evidence upon which the State was therefore required to rely was insufficient to prove her lack of consent. We disagree. From the evidence before them, the jurors could reasonably have concluded that Renee Springs was being struck and physically restrained against her will prior to the act of intercourse; that after completion of the act she fled hysterically from defendant’s presence at her first opportunity; that defendant pursued her and again restrained her; and that upon the arrival of third persons she remained in a hysterical condition, complaining that defendant had “messed with” her. The jurors could also have considered defendant’s conduct toward Officer Marquez as evincing a design to evade apprehension or identification. Moreover, they could have found the credibility of defendant’s exculpatory statement impeached by Mrs. Loving’s observations of Renee Springs after the completion of intercourse. Those observations were inconsistent with defendant’s claim that Renee had asked to be taken to North Chicago. Finally, the jury could have considered that Renee’s torn panty hose and cut knee were indicative that she had been subjected to forcible conduct. For these reasons, we conclude that defendant was proved guilty of rape beyond a reasonable doubt.

Defendant’s final contention on appeal is that he was denied a fair trial by statements of the prosecutor during final argument expressing his personal opinion and inviting the jury to make improper use of the evidence. The remarks in question were made during the prosecutor’s rebuttal argument and read as follows:

“Mr. Hughes is asking you to step into the light of Mr. Grover over and over again and say, ‘What, why didn’t he do that?’ I’ll tell you why. He’s a rapist and he’s stupid. You can’t put your minds into the mind of a rapist. You can’t think like Dennis Grover thinks. That’s impossible.
* * *
And last but not least, of course, Dennis Grover is stupid. He raped a person on the front porch of somebody. That is stupid. We can’t expect you people to understand how this man thinks. That’s impossible.”

We note that no contemporaneous objection was lodged against the first of the above-quoted remarks, and neither of the alleged improprieties was raised in defendant’s post-trial motion. Accordingly, defendant has failed to preserve this issue for review. People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.

Even were we to reach this issue on the merits, we would find no error. An argument based upon evidence in the case which characterizes the accused in terms of the charges or the evidence in the proceedings then pending against him is not error. (People v. Slaughter (1980), 87 Ill. App. 3d 1066, 409 N.E.2d 508; People v. Jedlicka (1980), 84 Ill. App. 3d 483, 405 N.E.2d 844.) Here, there was considerable support in the evidence for the prosecutor’s characterization of defendant as a rapist. It does not appear from a reading of the argument as a whole that this term was employed in an effort to relieve the State of its burden of proof. Moreover, the prosecutor’s suggestion that the jury analyze the circumstances of the case in light of the fact that defendant was a rapist appears to have been an effort to persuade the jury that various aspects of defendant’s conduct at the time in question may have been influenced by the excitement, confusion or other circumstances incident to his involvement in a violent crime. Thus, it was not error for the prosecutor to argue that circumstances asserted by the defense to require a conclusion of defendant’s innocence could be viewed as consistent with a conclusion of his guilt.

Defendant’s reliance upon People v. Fort (1958), 14 Ill. 2d 491, 153 N.E.2d 26, is misplaced, for there the prosecutor’s statement that defendant had previously been, was then and always would be a rapist implied that defendant had perpetrated other rape offenses other than that for which he was then on trial. The infirmity identified in Fort was not present in the instant case.

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

Affirmed.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE GOODMAN, Defendant-Appellant.
    Second District
    No. 82—499
    Opinion filed July 6, 1983.

      William R. Beu, of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Jesse Goodman, appeals from the extended-term sentence of 50 years’ imprisonment that he received upon remandment by this court to the circuit court of Winnebago County for resentencing on his convictions for murder (Ill. Rev. Stat. 1979, ch. 38, par. 9—1) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2). Because we find no error in that resentencing, we affirm.

Defendant was found guilty of murder and armed robbery after a jury trial in 1980. He was sentenced to natural life imprisonment for the murder and to a concurrent six-year term for the armed robbery. He appealed and this court, while affirming the convictions, reversed the sentences and remanded for a new sentencing hearing. (People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663.) A new sentencing hearing was held and, on June 3, 1982, defendant was sentenced to an extended term of 50 years’ imprisonment for the murder conviction alone.

A summary of the evidence introduced at trial can be found in our opinion in the first appeal of this cause (98 Ill. App. 3d 743, 744-45, 424 N.E.2d 663, 665-66) and need not be repeated here. At the resentencing hearing, defendant presented the following additional testimony Eunice Berryhill, defendant’s great-aunt, described defendant’s history of abuse of drugs and alcohol. Defendant himself testified at the resentencing hearing for the first time in any of the proceedings of this cause. He related his vocational training received during an earlier incarceration and his art work during his present incarceration. He described his past drug and alcohol abuse and the counseling he had undergone during his present incarceration. Defendant expressed regret for taking a man’s life.

Defendant then testified concerning the murder of Dale Helgeson on July 20, 1979. He drove with his brother to the Tenstopet Tavern, parked in the rear parking lot and entered the back door to use the toilet. He had been drinking heavily and smoking marijuana from about 3 or 4 in the afternoon of that day. While he was using the urinal, the victim entered and went over to the toilet. He appeared intoxicated and staggering, and had money sticking out of his upper left-hand shirt pocket. Defendant came up behind the victim with the intent of grabbing his money and running out the door. As defendant reached out, the victim spun around, hit defendant and grabbed hold of his hair. A fight ensued during which the victim hit defendant’s head against the restroom wall, and defendant attempted to get loose. Defendant grabbed both of the victim’s thumbs as the victim’s hands were holding defendant’s hair, and bent the thumbs until they cracked and went limp. The victim still held defendant’s hair, and was hitting his head against the wall, and at that point defendant pulled a knife from his pocket and stabbed the man until he let go. Defendant then grabbed the victim’s money and wallet from the bathroom floor and ran out to his car. He sent his brother back into the tavern to recover his glasses. He first realized that the victim had died through a radio report as he was riding in his car about an hour or an hour and a half later.

On appeal, defendant raises three issues: whether the resentencing court (1) improperly failed to consider defendant’s testimony as evidence offered in mitigation; (2) improperly failed to make an independent assessment of the factor upon which it imposed an extended term; and (3) erred in finding defendant’s behavior to be exceptionally brutal or heinous indicative of wanton cruelty.

With regard to his first contention, defendant points out that section 5 — 4—1(a)(3) of the Unified Code of Corrections (Code) requires a sentencing court to consider evidence and information offered by the parties in aggravation and mitigation. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—4—1(a)(3).) At the resentencing hearing at issue here, defendant testified regarding the factual circumstances of the murder. Defendant contends that the trial court erred in failing to give consideration to his testimony offered in mitigation.

There is a strong presumption that a judge’s sentencing decision is based upon proper legal reasoning. (People v. Horstman (1981), 103 Ill. App. 3d 17, 430 N.E.2d 523.) Where evidence offered in mitigation and before the trial court, the sentencing judge will be presumed to have considered it unless there is some statement in the record, aside from the sentence imposed, which would tend to indicate otherwise. (People v. Fugitt (1980), 87 Ill. App. 3d 1044, 409 N.E.2d 537.) Here, the sentencing judge heard defendant testify about the crime. However, defendant argues that the record shows that the judge did not consider that testimony because (1) in the court’s sentencing analysis reference was made to defendant’s testimony concerning his activities during his present incarceration while no reference was made to his testimony regarding the facts of the murder, and (2) the court stated, at a point after defendant’s testimony, that “[n]o one has questioned the original [presentence] report which I have indicated is a part of what the Court will consider.”

The court’s failure to specifically mention defendant’s testimony regarding the murder does not show that the court failed to consider that testimony. The court is not obligated to recite, and assign value to, each fact presented at a sentencing hearing. People v. Meeks (1980), 81 Ill. 2d 524; People v. McFarland (1981), 93 Ill. App. 3d 136, 416 N.E.2d 769.

The sentencing court’s remark that no one had questioned the original presentence report was made in response to an objection by defense counsel. Defense counsel had objected when the prosecutor argued that defendant had agreed to the report’s statement of facts through his acceptance of the report. Defendant apparently suggested that, because his testimony differed from the report’s statement of facts, his testimony was a challenge to the report which the court had ignored. However, a more reasonable interpretation of the court’s remark is that no specific objection had been made to the report. Section 5—4—1(a)(2) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005—4—1(a)(2)) requires the sentencing court to consider any presentence report, and it is the duty of the party to bring to the court’s attention any alleged deficiency or inaccuracy in a presentence report. (People v. Meeks (1980), 81 Ill. 2d 524.) We are of the opinion that the court’s remark was addressed to defendant’s failure to point out an alleged inaccuracy in the report and not to an absence of contradictory evidence at the resentencing hearing.

Thus, defendant has not overcome the presumption that the court considered evidence offered in mitigation which it had received.

With regard to his second contention, defendant points out that section 5 — 4—1(b) of the Code requires that a judge impose sentence based upon his independent assessment of the sentencing elements. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—4—1(b).) At the resentencing hearing, defendant was sentenced to an extended term of imprisonment on the basis of the court’s finding that defendant’s criminal conduct had been accompanied by such brutal and heinous behavior that it was indicative of wanton cruelty. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(2).) Defendant contends that the trial court’s finding of brutal and heinous behavior was not based upon its independent assessment but rather was a mere ratification of the same finding in the original sentencing hearing. The State initially argues that if there was a mere ratification it was not reversible error on the facts of that case. The State secondly argues that in any event the record demonstrates the resentencing court’s independent assessment of brutal and heinous behavior. Because we conclude that the record substantiates this second argument, a consideration of the first is unnecessary.

Defendant quotes from the record at length, arguing that it demonstrates that an independent assessment was not made. The quoted remarks may be read to indicate a belief by the court that a new finding of brutal or heinous behavior is not necessary where defendant did not challenge that finding on the first appeal and the appellate court’s reversal was not related to that finding. Whether or not this was an accurate statement of law, the remarks of Judge Sype, the re-sentencing judge, also indicate that he made his own distinct finding and was not merely carrying over the finding of Judge Ghent, the first judge. Judge Sype stated the following: that he must address “the entire question of sentencing”; “I concur” in certain of Judge Ghent’s findings; and “I have found and I find” that defendant’s conduct was brutal and heinous. Addressing the entire question of sentencing necessarily involved a finding of brutal or heinous behavior because that was the only applicable prerequisite factor for the imposition of an extended term of sentence. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b).) To concur is to agree or to accord. (Black’s Law Dictionary 263 (5th ed. 1979).) This implies only that the same finding had been reached, not that the second finding was dependent upon the first. Finally, the first-person, present-tense declaration “I find” after examination of all the evidence connotes an independent assessment by Judge Sype.

With regard to defendant’s third and final contention, defendant was sentenced to an extended term on the basis of the resentencing court’s finding that defendant’s conduct in a murder was exceptionally brutal or heinous behavior indicative of wanton cruelty pursuant to section 5 — 5—3.2(b)(2) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(2)). Defendant now contends that the facts of this case do not support that finding.

The State initially argues, without citation to authority, that defendant has waived this issue because he did not raise it on the first appeal. At the first hearing, the court did make the same finding of brutal and heinous behavior, where it was the basis for imposing a term of natural life imprisonment. (See Ill. Rev. Stat. 1979, ch. 38, pars. 1005—8—1(a)(1), (b).) On the first appeal, defendant did not challenge that finding, although he did challenge the sentence on a different ground. See People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663.

The relevant rule here is that where a convicted person has appealed from the judgment of conviction, the judgment of the reviewing court makes res judicata all issues actually decided by that court, and all issues which could have been presented to that court and which were not are considered to have been waived. (People v. James (1970), 46 Ill. 2d 71; People v. Willis (1979), 79 Ill. App. 3d 617, 398 N.E.2d 861.) In James, the supreme court affirmed the trial court’s dismissal of the defendant’s petition for post-conviction relief in which James contended for the first time that certain of his constitutional rights were violated in connection with the mechanics of his sentencing. James had already prosecuted an unsuccessful appeal without raising that issue.

The case at bar presents a different situation. Defendant here challenges a finding of the resentencing court, not of the original sentencing court. As we have already observed, the second finding of brutal and heinous conduct agreed with but did not constitute merely a restatement of the first such finding. The rule in James would prevent defendant from challenging now that first finding; it does not, however, prevent defendant from raising on this appeal that which he could not have raised in the first appeal: the alleged error in the sentencing after remand.

Defendant first argues that the finding was error because the evidence showed that his actions were committed under a subjective belief that the actions were necessary in his own self-defense. In People v. Evans (1981), 87 Ill. 2d 77, our supreme court held that actions committed under a subjective belief, albeit unreasonable, that the actions were in self-defense do not constitute wanton cruelty so as to permit an extended term. In Evans, it should be noted, the jury’s verdict of voluntary manslaughter rather than murder necessarily revealed its conclusion that a subjective belief was present. 87 Ill. 2d 77, 88.

The State argues that the jury’s verdicts here foreclose a finding that defendant acted in self-defense. The jury found defendant guilty of murder and armed robbery. A homicide committed while committing a forcible felony such as armed robbery is murder. (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(3).) In the first appeal, defendant claimed error in the failure of the court to give a voluntary manslaughter instruction, in part because of an alleged subjective though unreasonable belief of acting in self-defense. (See Ill. Rev. Stat. 1979, ch. 38, par. 9—2(b).) This court found the failure to give that instruction to be harmless error because, although the jury should decide whether the defendant had acted in that subjective belief, the fact that defendant was found to have been committing a forcible felony precluded the subjective belief element, if present, from reducing the murder to manslaughter. (People v. Goodman (1981), 98 Ill. App. 3d 743, 748, 424 N.E.2d 663, 668; see Ill. Rev. Stat. 1979, ch. 38, pars. 9—2(b), 7—4(a).) Thus, the murder verdict in this case was determinative of neither the presence nor absence of that alleged subjective belief.

Defendant points to evidence of a struggle between the victim and himself as proof of that subjective belief. While this court has recognized that the pulled hair and broken toes of defendant were evidence of combat (People v. Goodman (1981), 98 Ill. App. 3d 743, 747, 424 N.E.2d 663, 667), the fact that the victim attempted to fight back to some extent is not proof that defendant subjectively believed that deadly force was necessary to protect himself. The only evidence of conduct by the victim which might be considered more than just defensive is the testimony of defendant that the victim repeatedly hit him and struck his head against the wall. Defendant also testified that he broke the victim’s thumbs and stabbed him in order to stop this offensive conduct. While this testimony is some evidence of a subjective belief, the court was entitled to disbelieve this testimony. This is especially true in light of the inconsistencies between defendant’s testimony and the evidence at trial.

Defendant also maintains that the objective facts alone do not establish the aggravated circumstances necessary to warrant an extended term. Here, the victim received 10 stab wounds. There were also two lacerations, one like a slash wound to the left cheek and one over the left eye, which may have been caused in the process of falling. Defendant cites cases where extended terms were imposed upon evidence of various aggravated circumstances not present here. It has been held that statutory language authorizing a greater sentence where conduct is “accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty” does not limit the imposition of the greater sentence to only those murders involving torture or the infliction of unnecessary pain. People v. La Pointe (1981), 88 Ill. 2d 482, 501 (where the statutory language discussed, identical to that authorizing an extended term, authorized a natural life imprisonment sentence in murder convictions (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1))).

The determination and imposition of a sentence is a matter involving considerable judicial discretion. (People v. La Pointe (1981), 88 Ill. 2d 482.) Here, the court was presented with evidence of a murder in conjunction with armed robbery in which an intoxicated and unarmed victim was stabbed at least 10 times. Given that the aggravating factor in the extended-term provision need not be established beyond reasonable doubt (People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820), we hold that the resentencing court did not abuse its discretion in finding defendant’s behavior to be exceptionally brutal or heinous indicative of wanton cruelty under the facts of this case.

Accordingly, we affirm the sentence of the circuit court of Winnebago County.

Affirmed.

HOPE and 'VAN DEUSEN, JJ., concur.


text:
    BLOOMINGDALE STATE BANK, Plaintiff-Appellant, v. CAPITOL BANK OF CHICAGO, Defendant-Appellee.
    Second District
    No. 82—673
    Opinion filed July 5, 1983.
    Rehearing denied August 8, 1983.

      Michael T. Nigro, of Nigro and Westfall, of Glendale Heights, for appellant.
    Melbourne A. Noel, Jr., of Laser, Schostok, Kolman & Frank, of Chicago, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Bloomingdale State Bank, has appealed the granting of defendant’s section 45 motion (Ill. Rev. Stat. 1981, ch. 110, par. 45, now recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2—615) to dismiss plaintiff’s third amended complaint, which purported to state a cause of action based upon defendant’s negligence. The trial court held that the third amended complaint was substantially insufficient in law as it did not state a duty of the defendant to exercise ordinary care to prevent damages to the premises in question for the benefit of the plaintiff.

Plaintiff raises two principal issues on appeal: first, whether an owner and possessor of a single-family residence owes a duty at common law to use reasonable care for the premises to the holder of a mortgage on the premises, the breach of which duty will support a cause of action for negligence; second, whether an owner and possessor of a single-family residence owes a duty at common law not to permit permissive waste on the premises to the holder of a mortgage on the premises.

The recent decision of our supreme court in Foxeroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, is dispositive of the second issue raised by appellant. The cause of action based upon the theory of permissive waste was originally raised in plaintiff’s first and second complaints but was not restated or incorporated by reference in the third amended complaint. Allegations in former complaints, not incorporated in the final amended complaint, are deemed waived. (Foxeroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 155.) We therefore do not reach the question of whether the mortgagee can state a cause of action for impairment of security by reason of permissive waste by the owner or possessor of property.

Regarding the first issue raised on appeal, we agree with the trial court that the third amended complaint was substantially insufficient at law to establish a duty owed defendant by plaintiff upon which to state a cause of action in negligence.

In its third amended complaint, plaintiff made the following allegations. Plaintiff held a second mortgage on the premises in question to secure a loan of $30,000, and a first mortgage was owned by Irving Federal Savings & Loan Association in the sum of $44,000. On or about August 27, 1977, defendant purchased the premises at a Uniform Commercial Code sale and, on or about September 1978, obtained possession of the premises which at that time were in reasonably good condition and had a mortgage value in excess of $100,000. On or about September 15, 1978, defendant took actual possession of the premises. Defendant, having taken steps to secure and care for the property, had a duty by common law to do so with reasonable care and prudence, and, in violation of the aforesaid duty, defendant failed to use reasonable care and prudence by deciding to keep the water well on and failing to turn on the heat when the seasons changed to winter. As a proximate result of the aforesaid negligence, the water pipes froze and burst, causing substantial damage to the premises and to the plaintiff’s security which was impaired to the extent the premises were damaged as measured by the cost of repairing the premises. The cost of repair was $45,000.

Plaintiff also alleged that on September 1, 1978, the first mortgagee filed a mortgage foreclosure suit regarding the property, that on April 25, 1979, a decree of foreclosure was entered against defendant as owner and other defendants, that Irving Federal was granted a first lien in the sum of $49,967.25 and plaintiff a second lien in the sum of $48,579, and because said sums were not paid the premises were sold at public sale on July 11, 1979, for the sum of $50,068. Plaintiff prayed for judgment in the sum of $45,000.

Defendant correctly observes that there is no direct Illinois authority that a mortgagee not in possession, as here, can recover from third parties who act negligently and damage the premises, even where the third person is the owner and possessor of the property. As plaintiff contends, our supreme court has long recognized that:

“ '*** It is axiomatic that every person owes a duty to all persons to exercise ordinary care to guard against any injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. This duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest or the proximity of relationship between the parties. It extends to remote and unknown persons. Colbert v. Holland Furnace Co. 333 Ill. 78; Baird v. Shipman, 132 id. 16.’ ” (Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 103, cited in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 364-65.)

The critical question in this matter is whether under the facts well pleaded in the third amended complaint the defendant owed the plaintiff any duty.

In a negligence action, a duty is an obligation imposed by law upon a person which requires that person to conform to a certain standard of conduct for the protection of another against unreasonable risk. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554; Walsh v. A.D. Conner, Inc. (1981), 99 Ill. App. 3d 427, 430.) A determination of the question of duty, whether the parties stood in such a relationship to one another that the law would impose upon one an obligation of reasonable conduct for the other’s benefit, is an issue of law to be resolved by the court. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.) The decision to impose a duty turns in part upon the probability or foreseeability that the defendant’s negligent conduct will result in harm to the plaintiff, but also upon the desirability in terms of social policy for the extension of such a duty. Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348; Walsh v. A.D. Conner, Inc. (1981), 99 Ill. App. 3d 427, 430.

In the recent case of Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, this court in a similar, if factually distinguishable, situation refused to establish a common law duty between a negligent contractor working on the premises and the mortgagee not in possession. In Sjostrom, we pointed out that it was reasonably foreseeable that negligent construction- could injure the security interest of the mortgagee. Similarly, here it was reasonably foreseeable that the failure to turn off the water while failing to turn on the heat could result in damages to the premises and thus in turn damage the security interest of the mortgagee. Foreseeability, however, is not the only factor to be considered; public policy, social considerations and the burden to be placed on the defendant should also be considered. 105 Ill. App. 3d 247, 262.

In Sjostrom, we further pointed that the injury allegedly suffered by the mortgagee was simultaneously suffered by the mortgagor and that to allow both to sue on the same injury subjected the defendant to the possibility of being doubly liable for only one injury. Moreover, we stated that the allowance of a direct action in that case would give every holder of a security interest a right to bring a suit against one who negligently injured the secured property and would thus unduly multiply and complicate litigation. (105 Ill. App. 3d 247, 262.) We also noted that ordinarily a mortgagee had other rights and remedies that could be pursued to protect its security interests.

To recognize a cause of action here on behalf of the mortgagee for the negligence of the owner or possessor of the mortgaged premises is subject to the same vices noted in Sjostrom, a possible double recovery and an undue multiplication and complication of litigation. A plaintiff’s cause of action in a matter such as this based upon negligence must necessarily arise if at all when the damage to his security interest occurs. (West American Insurance Co. v. Sal E. Lobianco & Son Co. (1977), 69 Ill. 2d 126, 130 (a cause of action for tort accrues when the injury occurs).) In this case, that would have occurred when the water pipes burst and the premises were damaged. At that time, the first mortgage holder would also have had a cause of action upon which he could have brought suit because his security interest was similarly and simultaneously damaged. The allegations contained in the third amended complaint concerning the foreclosure action and the resulting sale of the premises, including the payment of the first mortgage out of the proceeds of that sale, are not relevant to the determination of whether a cause of action for negligence exists and must be considered surplusage.

The recognition of a cause of action under the facts pleaded in this complaint would establish a precedent which could lead to multiplicative litigation. For example, a tenant, as a possessor of the property, would be subject to a negligence action for the same injury by the owner of the property as well as by all holders of security interests. We conclude that the same policy considerations that caused us to deny the existence of a duty, essential for a negligence action, in Sjostrom apply to the present situation despite their factual dissimilarities.

The trial court’s dismissal of the third amended complaint was proper and is affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE STAMOS

text:
    JAMES HARRINGTON, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1379
    Opinion filed June 28, 1983.
    Joseph A. Rosin & Associates, Ltd., of Chicago (Harold Z. Kaplan, of counsel), for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen Kelly Ivory, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff James Harrington initiated this class action against defendant city of Chicago, the class consisting of those holding tort judgments against the city. The action was for a declaratory judgment that section 3 of the Interest Act (Ill. Rev. Stat. 1981, ch. 17, par. 6403), which imposes a lesser rate of judgment interest on governmental bodies than is generally imposed, denies plaintiffs equal protection of the law and constitutes special legislation. Plaintiff and defendant filed cross-motions for summary judgment. Plaintiff’s motion was denied and defendant’s was granted. The judgment order upheld the constitutional validity of section 3’s classification of judgment debtors. Plaintiff appeals from that order.

Section 3 of the Interest Act provides that judgment creditors shall receive interest on their judgments until the judgment is paid. (Ill. Rev. Stat. 1981, ch. 17, par. 6403.) Presently, section 3 imposes a 9% interest rate on all judgments except when the judgment debtor is a governmental entity, in which case only a 6% rate is imposed.

Prior to October, 1977, section 3 imposed a 6% rate as to all judgment debtors. Effective October 1, 1977, the rate was raised to 8%, except as to units of local government, school districts, and community college districts, which remained subject to the 6% rate. On August 13, 1978, section 3 was amended and the 6% rate was extended to “any other governmental entity,” in addition to the other exceptions noted above. The present general interest rate of 9% went into effect on January 1, 1980. The 6% rate remains applicable to units of local government, school and college districts, and other governmental entities.

Plaintiff James Harrington secured a tort judgment against defendant city of Chicago on November 27, 1978, in the amount of $65,000. On July 31, 1979, he filed the instant class action on behalf of himself and all others holding tort judgments against defendant. Plaintiff sought a declaration that the statutory classification of judgment debtors has no rational basis and constitutes special legislation, thereby violating the right of. the plaintiff class to equal protection of the law under the United States and Illinois constitutions. Following cross-motions for summary judgment, the circuit court entered judgment for defendant holding that the statutory classification has a rational basis. Plaintiff then instituted this appeal.

Plaintiff contends that the classification of judgment debtors contained in section 3 of the Interest Act (Ill. Rev. Stat. 1981, ch. 17, par. 6403) violates the right of the plaintiff class to equal protection of the law. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2.) Section 3 provides in pertinent part that:

“Judgments recovered before any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government *** a school district, a community college district, or any other governmental entity.” Ill. Rev. Stat. 1981, ch. 17, par. 6403.

The plaintiff class, as judgment creditors of the city of Chicago, receive 6% on their judgments until payment. Plaintiff contends that there is no rational basis for requiring governmental entities to pay a lesser rate of interest on judgments against them than is imposed generally.

In reviewing the constitutionality of legislation, the standard to be applied is determined by the nature of the right asserted or class of persons involved. Plaintiff concedes that neither a fundamental right or a suspect class is involved and that the legislation at issue is to be examined under the rational basis test. Under that test, the court determines whether the statutory classification is rationally related to a legitimate governmental purpose. (See Lake Shore Auto Parts Co. v. Korzen (1971), 49 Ill. 2d 137, 149, 273 N.E.2d 592, rev’d on other grounds (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001.) In making this determination, it is constitutionally irrelevant what reasons in fact served as the basis for the legislation. (Miller v. Department of Public Aid (1981), 94 Ill. App. 3d 11, 20, 418 N.E.2d 178.) If the court can discern any reasonable basis for the legislative classification, the statute should be upheld. 94 Ill. App. 3d 11, 20.

The statute in the instant case imposes a lower rate of judgment interest on governmental bodies than on other entities. The legislature may well have enacted the disparate interest rates in order to somewhat lessen the burden on the taxpayers who ultimately pay for judgments rendered against governmental entities. One may question whether the legislature struck a proper balance between the tax saving resulting from a lesser rate of judgment interest and the burden imposed on the individual judgment creditor who is obliged to collect less on his judgment simply because he was injured by a governmental entity, but such is not the court’s task. (See Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 512, 349 N.E.2d 61.) The test is rationality and we find that the legislative classification here has a rational basis.

Plaintiff’s contention that section 3 of the Interest Act violates the constitutional prohibition against special legislation has been withdrawn.

The judgment of the circuit court is affirmed.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.


author: PRESIDING JUSTICE ROMITI

text:
    DIANA BALFOUR, Plaintiff-Appellee, v. CITGO PETROLEUM CORP. et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—1584
    Opinion filed June 30, 1983.

      Morgan, Tuchow & Karzov, of Chicago (Arnold J. Karzov and Douglas Graham, of counsel), for appellants.
    Corboy & Demetrio, of Chicago (Philip H. Corboy and David A. Novoselsky, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff was severely injured on December 6, 1976, in a collision between her automobile and a tank trailer when one or both of the vehicles crossed the center line on a snowy, icy road. The jury found for plaintiff in the amount of $120,000; however, since it found both parties 50% negligent, the award was reduced to $60,000. Only the defendants appeal.

On appeal defendants contend:

(1) the trial court erred in permitting the testimony of Ronald Janis because he did not witness the accident; he did not identify the truck he saw as the one involved in the accident; the truck he saw crossed the center line some undetermined distance east of the accident; the truck driver had been removed from the scene before he arrived; he testified as to tire tracks and a mound of snow without their being tied to the accident;

(2) since the issue was which vehicle crossed the center line, the trial court erroneously submitted the question of comparative negligence to the jury.

We find that the defendants’ contentions as to Janis are unsupported by the record and that comparative negligence was properly submitted as an issue.

The plaintiff Diana Balfour testified that before the accident she had been driving her Toyota Célica eastbound on Army Trail Road. There was heavy snow and because of the snow no center line was visible near the accident scene; however she could see the shoulder of the road. Plaintiff followed the other vehicular tracks, driving about 30 to 35 miles per hour. There was no eastbound traffic ahead.

Balfour first saw the tank truck when it was about a block away. When she first observed the truck it appeared that it was picking up speed and was moving between 40 and 45 miles per hour. At that time the truck was in its own (westbound) lane but it was crowding the eastbound land. As the truck approached, according to plaintiff, it suddenly crossed from the westbound lane over into her lane of traffic driving “very, very fast.” According to plaintiff the collision occurred before she could take any evasive action. She was still following the other car tracks at the time of the accident. The front end of the truck came into contact with the side of her car.

Arnold Wille, the driver of the gasoline tanker truck, testified that the road, approaching the accident scene, was only partially covered with less than an inch of snow. The center line was visible as was the edge of the pavement. According to Wille, when he first saw plaintiff’s car it was completely in his lane about 100 to 150 feet away and traveling at about 35 miles per hour. It looked as if she was passing another car. He swung off onto the shoulder and applied his brakes. He admitted that driving a tractor-trailer combination off the pavement under those conditions carried with it the danger of loss of control and jackknifing, resulting in the vehicle “fishtailing" in an uncontrolled manner. According to Wille the collision occurred when the tractor-trailer combination was partly on the westbound shoulder and partially on the westbound lane of the roadway. However, it ended up in a field north of the eastbound lane of traffic. So did plaintiff’s car.

There were also two drivers who had been following behind Wille’s truck at the time of the accident. Ronald Janis testified that for about five miles before the accident, his blue pickup truck had been following behind the gas tanker trailer which was involved in the accident, traveling at about 35 miles per hour. He had been driving about three car lengths behind the truck using the truck as a guide because none of the lane lines were visible. As far as Janis remembered there was no vehicle between him and the truck.

Janis saw the truck veer sharply off the shoulder of the road in his lane and then whip back onto the road in the oncoming lane. Janis then slowed down. He saw the back of the truck go into the oncoming lane and then saw a big clump of snow pushed by truck tires into the eastbound lane; the truck by then had proceeded on its course. After seeing the clump of snow, Janis looked around and saw a black object off the road about one hundred feet west of the clump of snow. The black object turned out to be plaintiff’s car. Janis pulled off the road and walked to plaintiff who was about 100 feet southeast from the automobile. He attended to her and started walking west to summon help. As he approached the truck which was also off the road on the south side, someone whom he could not identify yelled that there was gasoline leaking and to get away. Janis did not see the truck driver.

Janis agreed that he did not see the actual collision. As he was driving he could not see any vehicle approaching the tractor trailer.

Robert Barth testified that he had been driving about 175 to 200 feet behind the accident truck; a blue car was in between. All three vehicles were traveling about 35 miles per hour. According to him the weather was cloudy at that time with only light snow. The center line was visible at times. He did not remember if it was visible at the scene of the accident. The edge of the road was visible.

Barth first saw plaintiff’s car when he was about 200 feet from the tanker. At this time he saw the truck apparently go out of control pulling off the road onto the westbound shoulder and kicking up a cloud of snow. The trailer straddled the pavement and the shoulder. The car was at this point traveling somewhat broadside, somewhat at an angle. The tanker driver stayed off to the right side of the road.

After the impact, which Barth did not see, the car tumbled end over end and flew into the ditch on the south side of the road. The truck jackknifed to the south and went into a field alongside the eastbound lane of traffic.

Barth ran to the truck to help the driver. He helped the driver out of the truck. When some unidentified persons, whom he believed to be construction workers, approached, he warned them off and advised them to help the driver of the car.

Barth denied he had any conversation with the driver of the blue car which had been driving between his car and the truck. That car, he said, did not stay at the scene.

Sergeant Hill, the investigating officer, testified that there had been one to two inches of drifting and blowing snow on the road. Conditions were icy and it was very hazardous. The center lane was not visible but the drop-off between the pavement and the shoulder was.

I

It is clear from the foregoing recital of the evidence that defendant’s contentions as to Janis’ testimony are in fact without merit. Janis did witness the accident, although like Barth he did not see the actual impact; he did identify the truck he saw as the one identified in the accident; the conduct he witnessed was at the time of the accident, and there was no evidence that the truck driver had been removed from the accident scene before Janis arrived. Accordingly, Schneider v. Wedding (1965), 66 Ill. App. 2d 7, 213 N.E.2d 624, appeal denied (1966), 33 Ill. 2d 627, Flesberg v. Prince Warehouse Co. (1962), 37 Ill. App. 2d 22, 184 N.E.2d 813, and Hanck v. Ruan Transport Corp. (1954), 3 Ill. App. 2d 372, 122 N.E.2d 445, appeal denied (1955), 4 Ill. 2d 627, all relied upon by defendants, are not in point. In Schneider the testimony was rejected because the witness could not, unlike the present case, identify the vehicle as the one involved in the accident. In Flesberg and Ranch the conduct testified to occurred sometime prior to and some distance from the accident scene; whereas here the conduct occurred at the time of the accident. Furthermore Flesberg and Ranch were disapproved of in Schneider, which held they unduly restricted the admissibility of that type of evidence.

The fact that Janis did not witness the actual impact does not disqualify him from being an eyewitness. (Klavine v. Hair (1975), 29 Ill. App. 3d 483, 331 N.E.2d 355, appeal denied (1975), 61 Ill. 2d 598; Haley v. Baltimore & Ohio R.R. Co. (7th Cir. 1965), 341 F.2d 732, cert. denied (1965), 382 U.S. 861, 15 L. Ed. 2d 99, 86 S. Ct. 121; and compare People v. Stephens (1973), 13 Ill. App. 3d 642, 301 N.E.2d 89.) It is not necessary that an eyewitness see everything that occurred at the accident scene. (Planh v. Holman (1970), 46 Ill. 2d 465, 264 N.E.2d 12.) Here, as in Plank, while the witness did not see all of the vehicles involved before the accident, he could determine the location of the truck in relation to the center line. Thus the evidence was both relevant and material. Plank.

II

Defendants contend that since the issue in this case was which party crossed the center line, the trial court committed reversible error in instructing the jury on comparative negligence. Defendants’ argument is apparently based on the belief that when two vehicles hit head on, the one in the wrong lane is always 100% negligent and the one in the proper lane can never be negligent. This is not the law. The fact that one party’s vehicle crossed into the other party’s lane where the collision occurred does not establish negligence as matter of law, if there is evidence explaining the circumstances from which reasonable inferences favorable to the former party could be drawn. (Imparato v. Rooney (1981), 95 Ill. App. 3d 11, 419 N.E.2d 620; Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692, appeal denied (1978), 71 Ill. 2d 603.) More importantly, the duty to exercise ordinary care to avoid a collision is reciprocal, and both parties have a duty to use every precaution to avoid a collision. (Waldron v. Hardwick (1968), 99 Ill. App. 2d 36, 240 N.E.2d 772, appeal denied (1969), 40 Ill. 2d 578.) Thus, “[i]t is not true, as appellant seems to contend, that if she was driving on the right side of the road at the time of the accident, she owed no further duty to the plaintiff. One must still exercise due care to prevent injury to oneself and others and to avoid a collision with a driver who may be proceeding on the wrong side of the road.” (Walling v. Lingelbach (1975), 33 Ill. App. 3d 949, 952, 338 N.E.2d 917, 920; aff'd (1976), 65 Ill. 2d 244, 357 N.E.2d 530; in accord, Hicks v. Swift & Co. (1936), 285 Ill. App. 1, 1 N.E.2d 918.) Accordingly, courts have repeatedly upheld judgments apportioning negligence even though one driver was wholly or partially in the wrong lane. See, for example, Goerlich v. Ippolito (1978), 62 App. Div. 2d 1030, 403 N.Y.S.2d 922; United States v. Tirado (1st Cir. 1966), 358 E2d 939; Pagel v. Holewinski (1960), 11 Wis. 2d 634, 106 N.W.2d 425; White v. New Hampshire Insurance Co. (1980), 227 Kan. 293, 607 P.2d 43.

Defendants’ reliance on Walling v. Lingelbach (1976), 65 Ill. 2d 244, 357 N.E.2d 530, is unwarranted. In that case the passenger in one car sued both her driver and the driver of the other car which undisputedly had been in the wrong lane at the time of the accident. The jury found against both drivers. However, the appellate court, while holding, as quoted earlier, that the passenger’s driver still had had a duty to exercise due care, found that any possible negligence such as speed, and possible momentary lapse in attention, and failure to sound a horn did not as a matter of law, under the evidence in the record, contribute to cause the accident. The supreme court affirmed, holding that the accident was caused by the one driver’s having been in the wrong lane and that none of the other driver’s acts was a proximate cause of the injury. We cannot say the same in the present case. Regardless of which party the jury concluded had crossed the center line (and indeed the jury could have concluded that either or both did), the jury could also have found one or both of the parties negligent in driving too fast for the conditions of the road and in failing to take proper evasive measures. Accordingly this issue was properly submitted to the jury.

Judgment affirmed.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    MICHAEL ISBERIAN, Plaintiff-Appellee, v. THE VILLAGE OF GURNEE, Defendant-Appellant.
    First District (3rd Division)
    No. 82—1807
    Opinion filed June 22, 1983.

      James R. Schirott and John T. Eisner, both of Samelson, Knickerbocker & Schirott, of Des Plaines, for appellant.
    Berle L. Schwartz, of Highland Park, and Larry D. Drury, of Chicago (Andi C. Goldfine, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Michael Isberian, brought this class action on his own behalf and on behalf of all individuals who paid an amusement tax under Gurnee ordinance 80 — 50 and its predecessor 76 — 17. Alleging that the village of Gurnee had been unjustly enriched thereby, plaintiff sought recovery of the tax on the grounds that the ordinance in question was illegal and in violation of the Illinois Constitution. After a bench trial, the trial court entered judgment for plaintiff in the amount of $2,488,210.35, finding that the ordinance constituted an illegal occupation tax. The village appeals.

Village of Gurnee ordinance 80 — 50 imposed a tax “upon all persons or corporations involved in the operation of amusement parks or theme parks within the Village of Gurnee of an amount of 25 cents ($.25) per ticket from fees or charges paid by persons who attend said amusement park or theme park.”

Pursuant to this ordinance, a 25-cent charge was added to the price of a ticket for admission to Marriott’s Great America. Plaintiff purchased four such tickets during the summer of 1981 and attended Great America. He later filed this action seeking recovery of the tax from the village on the ground that it constituted an illegal tax on occupations which was prohibited by article VII, section 7 of the 1970 Illinois Constitution.

Relevant to this appeal are the following provisions of article VII of the 1970 Illinois Constitution:

“Sec. 6(a) *** [Efxcept as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, *** the power *** to tax ***.
* * *
(e) A home rule unit shall have only the power that the General Assembly may provide by law *** to *** impose taxes upon *** occupations.
***
(g) the General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit ***.
* * *
Sec. 7 Counties and municipalities which are not home rule units shall have only powers granted to them by law and [other powers specified in sec. 7] ***.” (Emphasis added.)

Also relevant to this appeal is section 9 of the Transition Schedule of the 1970 Constitution, which provides that “[a]ll laws *** not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force ***.”

Defendant is not a home rule unit. It therefore derives its power from section 7 of the 1970 Constitution. Since the power to tax amusements is not one of the powers specified in that section, the village had no authority to impose the tax in question unless such authority was granted to it “by law.”

The village takes the position that the statute which authorizes municipalities to tax amusements, provides such authorization. (Ill. Rev. Stat. 1981, ch. 24, par. 11—42—5.) The trial court, however, adopted plaintiffs position that since the statute was enacted prior to the adoption of the 1970 Constitution, it could not provide the legislative authorization required by section 7. The trial court also found that the tax in question constituted an occupation tax and as such was impliedly prohibited by section 6(e). The court reasoned that it would be contrary to the 1970 Constitution to allow a non-home-rule unit to enjoy greater power than that enjoyed by a home rule unit.

On appeal, the village urges that its ordinance constituted a permissible tax and that in any event plaintiff is barred from recovering under the doctrine of voluntary payment. The trial court ruled against the village on this latter issue for want of proof.

We first address the village’s contention that the ordinance constituted a permissible tax. The statute provides in pertinent part that. “[t]he corporate authorities of each municipality may *** tax *** amusements ***.’’ (Ill. Rev. Stat. 1981, ch. 24, par. 11—42—5.) We find that this provision did provide the statutory authorization required by section 7 to empower the village to enact the ordinance in question. We disagree with the finding of the trial court that because section 11—42—5 was enacted prior to the adoption of the 1970 Constitution it could not provide such statutory authorization. According to section 9 of the General Transition Schedule, “[a]ll laws *** not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force ***.” There is no inconsistency between the section 11—42—5 statutory authorization to tax amusements and the section 7 constitutional provision limiting the powers of non-home-rule units to those authorized by law. We therefore find that section 11— 42 — 5 remains in force.

The cases on which plaintiff relies to support the trial court’s position with regard to section 11—42—5 are distinguishable. Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6, involved the question of whether a statute enacted prior to the adoption of the 1970 Constitution could operate to restrict the broad taxing powers granted to home rule units by section 6(a). Section 6(g) does authorize the legislature to limit those powers, but only by a law approved by three fifths of the members of each house and enacted in a specific effort at limiting home rule power. (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 290 N.E.2d 240.) The court in Mulligan recognized that, since home rule units were a creation of the 1970 Constitution, a statute passed prior thereto clearly could not represent an effort by the General Assembly to limit home rule power.

Relying upon Mulligan, plaintiff argues that since a preexisting statute cannot limit a power granted by the new constitution, it logically follows that a preexisting statute cannot remove a barrier imposed by such constitution. We find this analogy to be inapplicable here because we find no barrier in section 7 which would be removed by section 11—42—5. Although section 7 does limit the powers of non-home-rule units to those granted to them by law, it does not bar their exercise of powers previously granted to them by law. Prior to its adoption of the 1970 Constitution, Illinois had no home rule units. Under the 1870 Constitution the powers of all municipalities were limited to those conferred on them by the State through the General Assembly. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2727; Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227.) Thus, prior to 1970, all municipalities, the village included, enjoyed the power to tax authorized by section 11—42—5. Although the newly created home rule units were given greatly expanded powers by the 1970 Constitution, the powers of non-home-rule units continued to be limited to those powers authorized by statute. We find no indication that the framers intended to restrict further the powers of non-home-rule units, by barring their exercise of powers previously granted by the legislature.

Plaintiff’s reliance on Estate of Carey v. Village of Stickney (1980), 81 Ill. 2d 406, 411 N.E.2d 209, is likewise misplaced. At issue in that case was the validity of an ordinance, passed by a home rule unit, which required racetrack licensees to pay an admission tax of 10 cents for each person entering the grounds. The court found that the tax in question was a tax on occupations and thus precluded by section 6(e) unless authorized by the General Assembly. Although defendant argued that section 11—42—5 provided such authorization, that provision was found to be inapplicable to racetrack licensees pursuant to statute. (Ill. Rev. Stat. 1975, ch. 8, par. 37j1.) While the holding in Estate of Carey supports plaintiff’s contention that the tax in question here constituted an occupation tax, the court in that case never addressed the question of whether section 11—42—5 could operate to authorize such tax pursuant to section 6(e).

Likewise, the majority of the court in Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 357 N.E.2d 1118, failed to address that question. Since it found that the tax in question did not constitute an occupation tax, the court did not reach the issue of whether section 11 — 42—5 could have provided the statutory authorization required by section 6(e) to validate such a tax. Plaintiff, however, relies on the dissent in Town of Cicero which found the tax to constitute an occupation tax and stated that because section 11—42— 5 was enacted prior to the 1970 Constitution, it could not provide the legislative authorization required by section 6(e) to overcome the general prohibition of occupation taxes contained therein.

The dissent clearly supports the trial court’s position on this issue. We, however, find the concurring opinion of Justice Schaefer to be more persuasive. He also found the tax to constitute an occupation tax but found that section 11 — 42—5 provided the legislative authorization required by both sections 6(e) and 7 to give any municipality, whether home rule or non-home rule, the power to impose an occupation tax on amusements. Since we find that section 11 — 42—5 is in no way inconsistent with either 6(e) or 7, we agree with this conclusion.

Plaintiff urges that it would be contrary to the 1970 Constitution to find that section 11 — 42—5 authorizes the village to impose the tax in question since such a finding would authorize a non-home-rule unit to exercise a power prohibited to home rule units. We agree that the framers intended home rule units to have greater powers than those of non-home-rule units. (City of Urbana v. Houser (1977), 67 Ill. 2d 268, 367 N.E.2d 692.) In light of our finding that section 11—42—5 provides the legislative authorization for both types of municipalities to impose such a tax, however (Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 24 (Schaefer, J., concurring)), we find plaintiff’s argument to be inapplicable here.

Even if we were to find that the village lacked authority to impose the tax in question, however, plaintiff would not be able to recover. In the absence of an authoritative statute, taxes voluntarily paid cannot be recovered. (Snyderman v. Isaacs (1964), 31 Ill. 2d 192, 201 N.E.2d 106; Scoa Industries, Inc. v. Howlett (1975), 33 Ill. App. 3d 90, 337 N.E.2d 305.) A tax is paid voluntarily where it is paid absent duress or compulsion, without protest, and with knowledge of facts upon which to frame a protest. Getto v. City of Chicago (1981), 86 Ill. 2d 39, 426 N.E.2d 844.

The doctrine of voluntary payment was raised by the village as an affirmative defense and dismissed by the trial court for want of proof. Plaintiff alleged payment of the tax and admitted that the tax was separately stated on the ticket. A copy of the ticket attached to the complaint shows the 25 cents tax as a Village of Gurnee Admission Tax. Under the circumstances of this case, we do not see what other evidence should have been required, and we hold there was sufficient evidence to support the defense.

Relying upon Getto, plaintiff maintains that he did not have sufficient knowledge to frame a protest because there was no way he could have known the true character of the tax or that it was illegal. It is not necessary, in order to invoke the doctrine of voluntary payment, however, that the taxpayer be aware of the illegality of the tax at the time he makes the payment. (Snyderman v. Isaacs.) It is sufficient if the plaintiff had before him sufficient facts upon which he could have based a contention of illegality. Getto v. City of Chicago.

In Getto, as in the present case, the bill or ticket revealed the governmental entity which was levying the tax. Unlike the present case, however, the impropriety of the tax in Getto was based upon the manner in which it had been computed. There was no way the taxpayer could have known of this improper computation by a mere indication on the bill of the ultimate recipient of the tax. Here, since plaintiff is challenging the authority of the village to impose the tax, we find that the ticket’s designation of the village as the taxing body and the labeling of the tax as an admission tax sufficiently apprised plaintiff of facts upon which he could have framed a protest.

We also reject plaintiff’s claim that he paid the tax under duress. He states that his refusal to purchase the tickets would have caused his child psychological duress. For a payment to be deemed under duress there must be some actual or threatened power believed to be possessed by the payee over the payor from which the latter has no reasonable means of immediate relief except by paying the tax. (Scoa Industries, Inc. v. Howlett.) We do not believe that the potential disappointment of plaintiff's child if prohibited from attending Great America was sufficient to warrant a finding that plaintiff purchased the ticket under duress.

We finally address the argument that the village would be unjustly enriched if allowed to keep the tax. An exception to the voluntary payment doctrine was recognized in Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill. 2d 532, 155 N.E.2d 595, in a situation where application of the doctrine would have resulted in unjust enrichment. In that case, defendant retailer had sold to plaintiff goods the price of which included a tax due the State by the retailer on account of the transaction. The retailer subsequently paid the tax to the State under protest and then successfully sued for a refund. Plaintiff, who had voluntarily paid the tax to the retailer, sought restitution. The court found that, since plaintiff bore the burden of the tax, application of the voluntary payment doctrine to preclude restitution to plaintiff would result in the retailer being unjustly enriched.

The plaintiff in Estate of Carey v. Village of Stickney was in a position analogous to that of the retailer in Harrison. A racetrack licensee, it asked the court to declare invalid an ordinance requiring licensees to pay a 10 cents tax for every person entering the track grounds. Plaintiff had refused to pay the tax and contended that it had not collected the tax from ticket holders. After declaring the tax invalid, the court held that if on remand the trial court should find that plaintiff had in fact collected the tax from ticket holders, the State’s policy against unjust enrichment would require that the money be refunded to those who bore the burden of the tax.

Both Harrison and Estate of Carey are distinguishable from the present case. The exception to the voluntary payment doctrine, as utilized in both of those cases, operated to prevent a party, other than the taxing body itself, from keeping money which it had erroneously collected from its customers as a tax but which it had either failed to turn over to the taxing body (Estate of Carey), or had paid the State but subsequently secured a refund {Harrison). We find no case where the exception has been applied against the taxing body itself. If we were to hold that the retention by a taxing body of an illegal tax, voluntarily paid, constituted unjust enrichment so as to prohibit application of the voluntary payment doctrine, the exception would in effect negate the doctrine itself.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

WHITE and O’CONNOR, JJ., concur.


author: JUSTICE McGLOON

text:
    AARON CADENA, Plaintiff-Appellant, v. MARIA G. CADENA, Defendant-Appellee.
    First District (1st Division)
    No. 82—2550
    Opinion filed June 30, 1983.

      Vincent C. Lopez, of Chicago (Richard Glasser, of counsel), for appellant.
    Maurino R. Richton, of Chicago Heights (David C. Harrison, of counsel), for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Aaron Cadena, appeals from a judgment of the circuit court of Cook County finding that a resulting trust did not arise in his favor.

On appeal, plaintiff contends that the trial court erred (1) in finding that he intended to make a gift to defendant, Maria Cadena, of her joint tenancy interest in property, and (2) in failing to impress a resulting trust on the property in plaintiff’s favor.

We affirm.

Our review of the record reveals the following facts. The parties married in 1967. One child, Nora, was born during the marriage. In 1971, judgment for dissolution of marriage was entered. Thereafter, defendant and Nora returned to Mexico to live with her family. Plaintiff visited defendant in Mexico in July of 1972. Defendant testified that plaintiff insisted that she return to the United States with him and promised her a better life if she did. After plaintiff returned to his residence in Chicago Heights, Illinois, he wrote defendant and urged her to come “directly to your home, which is mine.”

Shortly thereafter, defendant and Nora returned to the United States and began residing with plaintiff and a roommate, Jose Moreno. Moreno testified that he and Mr. Cadena made payments “to the Mrs.” (defendant) for food. Defendant, in turn, maintained the household. Plaintiff’s testimony corroborated that of Moreno’s. Plaintiff further testified that he told defendant that they would remarry.

In July 1973, plaintiff decided to purchase a home in the area. He testified that the bank required a cosignatory on the mortgage documents. In order to induce defendant to cosign the mortgage, plaintiff assured her that she would not have to make any mortgage payments. In their mortgage loan application, the parties represented that they were husband and wife. Plaintiff’s income was listed as $12,000 and defendant’s at $2,400. A $10,000 insurance policy naming “wife” as the beneficiary was listed as additional collateral. A mortgage for $12,000 was obtained and the property was conveyed to “Aaron G. Cadena and Maria G. Cadena, his wife” in joint tenancy. Prior to the possession date, a dispute arose and defendant and Nora left plaintiff. Plaintiff filed the instant action to impress a resulting trust on the property in his favor.

As a general rule, a resulting trust arises when one party purchases property with his own funds and title is transferred to a different party. (In re Estate of Wilson (1980), 81 Ill. 2d 349, 410 N.E.2d 23; Hocking v. Hocking (1979), 76 Ill. App. 3d 29, 394 N.E.2d 653.) The burden of proof rests upon the party seeking to establish the trust; it must be demonstrated by clear, convincing and unequivocal evidence. (Wright v. Wright (1954), 2 Ill. 2d 246, 118 N.E.2d 280; First National Bank v. Dierking (1967), 87 Ill. App. 2d 4, 230 N.E.2d 520.) No trust will be found where the transaction is susceptive to any other reasonable interpretation. Wilson.

The doctrine of resulting trust is based on the presumed intent of the payor that he alone shall enjoy that which he has purchased. (West v. Scott (1955), 6 Ill. 2d 167, 128 N.E.2d 734; Hocking.) However, the presumption of a resulting trust may be rebutted when the facts and circumstances established by evidence show that the payor intended to confer the beneficial interest in the property upon the grantee. (Wilson; Prassa v. Corcoran (1962), 24 Ill. 2d 288, 181 N.E.2d 138; Bowman v. Pettersen (1951), 410 Ill. 519, 102 N.E.2d 787.) One fact which has been considered indicative of the payor’s intent to make a gift exists where the payor takes title to the property in the names of himself and another person jointly. Such a conveyance, in absence of evidence of a different intention, has been held to be demonstrative of the payor’s intention to convey a gift of an undivided interest in the property to the joint tenant. Masgai v. Masgai (1975), 460 Pa. 453, 333 A.2d 861; Olson v. Olson (1973), 13 Ill. App. 3d 888, 300 N.E.2d 765.

Factual determinations necessary to decide a case where the evidence is contradictory must be left to the trier of fact. Such determinations will not be disturbed on review unless they are against the manifest weight of the evidence. Wilson; Hanley v. Hanley (1958), 14 Ill. 2d 566, 152 N.E.2d 879.

Having examined the record thoroughly, we conclude that plaintiff failed to establish that he did not intend to make a gift to defendant of the property. Plaintiff urges us to allow him to avoid the consequences of his stipulated intent evidenced by his placing the property in joint tenancy. In so urging, plaintiff contends that the bank told him that he must have somebody sign the mortgage papers with him or they would not give him a mortgage. Here,- as in Masgai, it is undisputed that plaintiff and defendant were not formerly married at the time of conveyance. Masgai is further analogous in that title was conveyed to defendant and plaintiff as James Masgai and Gloria Masgai, his wife in joint tenancy. Finally, as in the present case, James Masgai urged that he was coaxed into the joint tenancy arrangement out of fear that he would be unable to obtain a mortgage alone. The court found that the evidence therein failed to establish that James did not intend a gift. See also In re Relationship of Eggers (1982), 30 Wash. App. 867, 638 P.2d 1267, wherein the court noted that in a meretricious relationship the court will presume the parties intended to dispose of the property as they did dispose of it.

Additional factors convince us that plaintiff failed to meet the burden of proof necessary to impress a resulting trust in his favor. It appears from the record below and the finding of the trial judge that plaintiff provided practically all the consideration for the purchase of the property. However, defendant was employed and contributed minimal earnings to the household. This enabled plaintiff to contribute more money toward the purchase of the home. More importantly, plaintiff pledged defendant’s credit to obtain the mortgage on the property. (Cf. Murphy v. McKenzie (1973), 1 Mass. App. Ct. 553, 303 N.E.2d 744.) Finally, the fact that plaintiff’s daughter may eventually inherit the property supports defendant’s contention that plaintiff intended to dispose of the property as he did.

Having applied the principles of law above to the present case, we find that the trial court properly found that the conveyance of the property to defendant as a joint tenant was intended by plaintiff as a gift. Therefore, a resulting trust in favor of plaintiff did not arise.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.