author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ELLISON, Defendant-Appellant.
    Second District
    No. 82 — 578
    Opinion filed April 24, 1984.

      Michael M. Melius, Public Defender, of Waukegan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Raymond L. Beck, both of State's Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, John Ellison, and a codefendant, Tom Siefert, Ellison’s brother-in-law, were indicted in the circuit court of Lake County for the offenses of home invasion and rape. (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 11, 11 — 1(a)(1).) The cases were severed for trial, and Siefert was not involved in this appeal. The defendant was convicted by a jury for both offenses and he was sentenced to serve concurrent 12-year terms.

On appeal, the defendant raises these issues: (1) whether the omission of the words “without authority” from the home-invasion indictment was fatal to the indictment; (2) whether the rape shield statute is unconstitutional; (3) whether admission of evidence of his prior offense of impersonating a police officer was an abuse of the court’s discretion; (4) whether admission of his prior conviction for burglary for impeachment purposes was an abuse of the court’s discretion; and (5) whether he was proved guilty beyond a reasonable doubt.

During the early morning hours of December 18, 1981, after stopping at several neighborhood taverns, the defendant and Siefert were driving in Round Lake Beach in search of another place to stop. They noticed the lights were still on at Kristof’s, a lounge and bowling alley, and they stopped, but the place had just closed.

Brenda Wicinski, a bartender at Kristof’s, testified her car had stalled in the parking lot, and would not start again. She testified that the defendant, whom she did not then recognize, approached her, said he was a cop, showed her a badge, and motioned for her to move her car to an area which was like a dead-end alley located between Kristof’s and J & W Auto Parts. A police car passed them at that time, without stopping, and she told the defendant she would move as soon as her car warmed up. Siefert then approached the car, and was recognized by Wicinski. The defendant said to Siefert, “You know her?” and then returned to his own car. Defendant testified his only purpose in using the badge and pretending to be a cop was to “have a little fun.”

After driving about four blocks from Kristof’s, the defendant testified he noticed a light on at the prosecutrix’ apartment, whom he knew, and he decided to stop. At that time it was about 3:30 a.m. The defendant testified that he knew the prosecutrix because they worked together at Ozite. Also, he had dated her best friend, Roxanne Bur-dick, who also worked at Ozite. The defendant was married and had two children. He testified that he knew Roxanne considered him to be her boyfriend, but he stated he did not really like her. He did like the prosecutrix, and testified they had had intercourse twice within three or four months prior to the date in question.

The prosecutrix testified she and the defendant had not ever arranged to meet for a date, but that on one or two occasions he would arrive at a place where she already was and they would have a drink together or go out for pizza. Defendant and the two women often went to Roxanne’s house after work to talk, drink, and, according to the defendant, smoke marijuana. Roxanne testified at trial that she was not upset that the defendant had stopped seeing her, and that she was seeing someone else. There was testimony about a statement made by Roxanne to her union steward at Ozite in which she referred to the prosecutrix as “that slut,” indicating she had seen her and the defendant at a bar. Roxanne also stated the defendant was “going to be sorry.” The statement was made at a time when the prosecutrix and Roxanne were estranged due to an incident involving some money taken from Roxanne for which she blamed the prosecutrix.

Prior to December 18, 1981, Roxanne and the prosecutrix had reconciled and the prosecutrix considered her to be her best friend. The prosecutrix also had told the defendant she did not want to see him anymore because he caused too much trouble between her and Roxanne. She asked him to leave her apartment on this occasion, and she slammed the door in his face. The defendant testified this occurred about two weeks before December 18. The prosecutrix testified she had met Tom Siefert only once before; the defendant testified that she had met him perhaps two or three times. She did not realize who Siefert was until after the men had left her apartment and she was on her way to Roxanne’s.

According to the prosecutrix’ testimony concerning the event in question, a man whom she did not recognize until later as Tom Siefert, knocked on her door, displayed a badge, and said he was looking for prowlers. After she let him in, he walked around the apartment, turned lights on and off, and a second man came running through the doorway when the lights were off. She tried to run out of the apartment, but the second man, later identified as the defendant, pulled her down to the floor, choked her with his arm across her throat and then made her walk into the bedroom. The prosecutrix testified the defendant held her down as Siefert got on top of her; that he wandered around while Siefert was with her; and that he then had intercourse with her also. The prosecutrix claimed that she did not begin to recognize who the defendant was until he was having intercourse with her. When she addressed him by name, he yelled back that he was not John, “and this guy John, whoever he was, that [she] should treat him better from now on.”

The defendant testified that he first knocked on the prosecutrix’ door. The light that had been on was turned out by then, but he could hear the stereo playing. After he went downstairs again, and Siefert went upstairs, he testified he waited until he noticed that the lights came back on and saw that Siefert had entered the apartment. He testified he did not know that Siefert used the badge to gain entrance. Defendant testified that when he entered the apartment, Siefert and the prosecutrix were already in the bedroom. When the defendant demanded to know what was going on, Siefert angrily pushed him out of the bedroom, causing him to fall backwards against the living room couch. Defendant and Siefert loudly exchanged words. Siefert turned the stereo up loud, and returned to the bedroom where the prosecutrix was. The defendant observed them having intercourse. He testified that the prosecutrix’ arms and legs were up around Siefert.

In her testimony, the prosecutrix stated that Siefert “kept on telling me to moan and to get in different positions, and he was pulling my hair.” When she failed to follow his directions, “he pushed [her] legs right on him,” and threatened her with anal intercourse.

The defendant testified that after Siefert came out into the living room, the prosecutrix said, in a sarcastic way, “I suppose it’s your turn now.” The defendant said he “wasn’t feeling no pain,” and so he did not see anything wrong with it. In contrast to the prosecutrix’ testimony that she pushed him away, the defendant testified she did not do anything. “She just laid there” and did not react. The defendant testified he had intercourse with her for about five minutes, and then started feeling kind of sick about the whole idea of her just having been with Siefert, so he got off her. Siefert then reentered the room stating that he would handle her, got on top of her again, and she tried to push him away. When the defendant tried to pull Siefert off the prosecutrix, Siefert took a swing at him and the defendant left the apartment. Siefert eventually came downstairs, got in the car, and they left.

The prosecutrix’ neighbor, Karen Divoky, whose bedroom was adjacent to the prosecutrix’, testified that on the evening in question she heard the prosecutrix scream, and then heard voices of two men and the prosecutrix’ voice, as if there was arguing back and forth. She also heard furniture crashing as if fighting were going on. She stated the stereo was then played very loudly. She testified that she discussed calling the police with her husband, but decided not to because she thought it was a couple who visited the prosecutrix.

After the defendant and Siefert left the prosecutrix’ apartment, she did not seek help at the Divokys nor at the police station which was located about one block away from her apartment. Instead, she went immediately to Roxanne’s house where she was urged by Roxanne and her mother to call the police.

Several employees of Ozite who knew both Roxanne and the prosecutrix testified that neither one had a good reputation for truthfulness or veracity. A previous offer of defense counsel to have these witnesses testify to the prosecutrix’ reputation for chastity was denied by the court on the basis that it was contrary to the rape shield statute. Evidence of the defendant’s prior conviction for burglary was admitted. The defendant also testified to an incident which occurred before trial in which Roxanne had driven her car near the jail, and taunted him to come out and play.

Home Invasion

Based on the authority of People v. Pettus (1980), 84 Ill. App. 3d 390, and People v. Medreno (1981), 99 Ill. App. 3d 449, the defendant contends the failure of the home-invasion indictment to allege the fundamental element that the defendant acted “without authority,” and his timely raising of the issue in his post-trial motion, necessitates the reversal of his conviction for that offense.

The State disagrees, asserting that the omission of the words “without authority” was a formal, not fatal, defect. The State asserts the allegation that the defendant was not a peace officer “strongly implies” his lack of authority to enter, and contends no reversal is warranted where no prejudice to the defendant in the preparation of his defense has been shown. The State urges the court to reject the authority of Pettus and Medreno, and to recognize that lack of authority is implicit in the very nature of the offense of home invasion since invasion means that it is without authority. The State argues: “It is also indicative that the criminal intent was present ab initio since interpreting the statute any other way would render meaningless the portion requiring the defendant’s knowledge of the victim’s presence.”

The State argues that entry with knowledge of a person’s presence therein is meaningful only if the entry is made with the intent to threaten or harm the person, and since no one would invite an entry for that purpose, it necessarily follows the entry is unauthorized. The State’s argument is not well taken.

The offense of home invasion consists of two parts: the knowing unauthorized entry of an occupied dwelling place of another and the use or threat of force by the invader while armed with a deadly weapon or intentional injury by the invader upon an occupant. The offense is committed when both parts of the statute are satisfied. (People v. Robinson (1980), 89 Ill. App. 3d 211, 214.) In the face of a due process attack on the statute for the reason no intent to do an unlawful act at the time of entry was required, the Robinson court stated: “No constitutional provision requires that the legislature include criminal intent at the time of entry in the offense of home invasion. (See, e.g., People v. Ruberg (1979), 76 Ill. App. 3d 671, 395 N.E.2d 205.)” 89 Ill. App. 3d 211, 214.

The cases cited by the defendant in support of his position on this issue are dispositive: People v. Pettus (1980), 84 Ill. App. 3d 390, and People v. Medreno (1981), 99 Ill. App. 3d 449. As the Pettus court likewise noted, the requirements that a charge be in writing and set forth the nature and elements of the offense charged are mandatory and not directory. (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 3(a)(3); People v. Troutt (1977), 51 Ill. App. 3d 656.) As stated in Pettus:

“In our view, the allegation of ‘without authority’ is fundamental to the offense. Without it, one is left only to speculate as to the status of the defendant, whether he be an invitee, or has entered the premises by error, or in some legal capacity. If any of the latter be true, then the offense would become some form of aggravated assault or battery.
* * *
[T]he failure to allege such status is fatally defective to an information.” People v. Pettus (1980), 84 Ill. App. 3d 390, 393.

Citing People v. Lutz (1978), 73 Ill. 2d 204, the Medreno court found:

“Because this defect is fatal to the charge, the defendant need not demonstrate that the defect prevented him from understanding the nature of the charge and preparing a defense thereto, as the State alleges.” People v. Medreno (1981), 99 Ill. App. 3d 449, 455.

The defendant here specifically amended his post-trial motion to include the allegation that “the indictment is deficient on its face.” The State did not object to the amendment, and both parties argued the point during the post-trial hearing. Although the issue would more properly have been raised in a motion in arrest of judgment under section 116 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 116 — 2), an allegation included in a post-trial motion which concerns the sufficiency of the charging instrument has been construed as a motion in arrest of judgment. (People v. Pettus (1980), 84 Ill. App. 3d 390, 392.) We conclude the same construction should be afforded the defendant’s post-trial motion here.

It is also well established that a trial court errs in denying a motion in arrest of judgment when the indictment omits an essential element of the offense charged. (People v. Miller (1983), 116 Ill. App. 3d 361, 368; People v. Medreno (1981), 99 Ill. App. 3d 449, 455.) Accordingly, we conclude the defendant’s conviction and sentence for home invasion must be vacated. See People v. Pruden (1982), 110 Ill. App. 3d 250, 254.

Constitutionality of the Rape Shield Statute

The defendant argues the rape shield statute is unconstitutional as an abrogation of his sixth amendment right to present a full and fair defense to the charge of rape. His reference is to section 115 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7). That section provides:

“a. In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.
b. No evidence admissible under this Section shall be introduced unless ruled admissible by the trial judge after an offer of proof has been made at a hearing to be held in camera in order to determine whether the defense has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied. Unless the court finds that such evidence is available, counsel for the defendant shall be ordered to refrain from inquiring into prior sexual activity between the alleged victim and the defendant.”

He further asserts the statute conflicts with the original legislative intent of the Illinois legislature. He requests this court to find the statute unconstitutional and to grant him a new trial.

The State points out, correctly so, that numerous Illinois decisions have affirmed the rape shield statute, citing People v. Cornes (1980), 80 Ill. App. 3d 166, People v. Siefke (1981), 97 Ill. App. 3d 14, People v. Buford (1982), 110 Ill. App. 3d 46, People v. Requena (1982), 105 Ill. App. 3d 831, and People v. Bachman (1981), 92 Ill. App. 3d 419. The Comes and Buford cases specifically considered the constitutionality of the statute in the context of the defendant’s right of confrontation, and Bachman, Seifke, and Requena cited Comes as precedent.

The defendant attempts to avoid the effect of this precedent by distinguishing these cases. He asserts the cases misinterpret the legislative intent, are inconsistent with Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and/or should be considered precedential only where the victim’s testimony is corroborated.

It is true, as the State suggests, that the legislature speaks through its enactments, and that resort to legislative history is necessary only when a statute is vague or ambiguous and clarification of the underlying legislative intent is needed. (People v. Boykin (1983), 94 Ill. 2d 138, 141.) Under the statute, it is clear the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the prior sexual conduct of the alleged victim with the accused. (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7(a).) Therefore, resort to extrinsic construction aids is not necessary.

However, when such reference is made to the House and Senate debates prior to passage of the statute, defendant’s contention that the statute does not reflect legislative intent cannot be accepted. It is true the first draft of House Bill No. 760 would have allowed admission of evidence relating to a victim’s general reputation for chastity (the Senate amended “chastity” to “sexual promiscuity”) in the discretion of the court after an in camera hearing. So, technically, it is true the final draft of the statute does not reflect the legislature’s original intent; it does, however, reflect its current intent.

After the bill passed the House and Senate and was sent to the Governor, the Governor issued an amendatory veto message in which he noted the restriction of the evidence to conduct only between the victim and the accused was necessary to conform the statute to prior case law. The House overwhelmingly supported the Governor’s amendatory veto, which amended the statute to read as section 115— 7 currently does. (155 ayes, 7 nays, 3 present.) (Record of Proceedings, 80th General Assembly, Regular Session, Motion to Concur in Amendatory Veto on House Bill 760, at 59 (November 3, 1977).) The Senate likewise overwhelmingly accepted the Governor’s amendment. (39 ayes, 8 nays, 1 present.) Report of Proceedings, 80th General Assembly, Regular Session, Motion to Accept the Specific Recommendations of the Governor as to House Bill 760, at 10 (November 22, 1977).

Of note is a statement by Senator Washington, who was the movant to accept the Governor’s recommendations:

“The issue here is did defendant X rape the prosecuting witness, that’s the case, period, and there’s all kinds of testimony which could be permitted. Now, if he takes the defense of consent then in camera out of hearing of a jury he can present any such evidence which bore upon the fact that he may have had prior sexual conduct with her. But I find just impossible to understand how past sexual conduct is relevant at all to the case. I don’t think...and that’s why the Governor has...has amended the bill in this fashion. I agree with this amendment. The House agreed with this amendment. We’ve had any number of hearings in the Rape Study Committee which brought out that other jurisdictions do a similar thing as this and there’s been no injustice brought or lack of due process insofar as these defendants are concerned.”

As evidenced by the vote, clearly a majority of the Senators concurred in the substance of that statement.

Prior to 1978, evidence of the victim’s past sexual conduct was admissible when the defendant claimed consent as an affirmative defense limited, however, to the victim’s general reputation for such conduct before the alleged rape. (See, e.g., People v. Fryman (1954), 4 Ill. 2d 224; People v. Eilers (1974), 18 Ill. App. 3d 213.) Specific acts of promiscuity were not admissible. People v. Fink (1978), 59 Ill. App. 3d 51; People v. Collins (1962), 25 Ill. 2d 605.

In his letter to the House of Representatives, Governor Thompson expressed his feeling that the bill as originally passed by the General Assembly was a small step in the right direction, but that it was his belief that a giant stride in that direction was desirable. In his judgment, neither the victim’s prior sexual activity nor her reputation should ever be inquired into in a rape case unless she was previously involved with the alleged rapist. (See Comment, The Illinois Rape Shield, Statute: Privacy At Any Cost? 15 J. Mar. L. Rev. 157, 164 (1982).) Although the author of that article, and the defendant here, suggest that the history of the rape statute shows it does not reflect the “original legislative intent,” nevertheless, the bill passed overwhelmingly in the General Assembly, and the language of the statute is clear. In view of the absence of distinguishing circumstances, this court is bound by the principle of stare decisis to follow the lead of People v. Cornes (1980), 80 Ill. App. 3d 166, and its progeny.

As pointed out by the State, the defendant here was able to present his theory of defense to the jury, thus distinguishing this case from Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105. In Davis, the court determined the defendant had been deprived of his right of confrontation because he was prohibited from making any reference to the fact that the witness who had identified him in the lineup was on probation. The defendant was charged with breaking into a bar and removing its safe. The safe was later found near the home of the witness. The witness was a juvenile, and the court had granted a pretrial protective order, pursuant to an Alaska statute, which prohibited the defense from making any reference to the juvenile witness’ probationary status. The defendant claimed this unconstitutionally restricted his right to cross-examination in that it made it impossible to show that the juvenile witness, a convicted burglar, might have been subject to coercive police questioning which may have caused him to identify the defendant and testify against him. At trial, the witness denied he felt any concern that the police might suspect him of the burglary of the safe, rather than the defendant. Without knowing the witness had any possible motive for testifying against the defendant, the jury in that case could well have thought that defendant’s counsel “was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness ***.” Davis v. Alaska (1974), 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111.

According to the record here, defense counsel attempted to question the prosecutrix regarding what she and the defendant and Roxanne did on the occasions the three of them went to Roxanne’s house after work. The State’s objection to the question was sustained, and counsel indicated to the court his intent was to establish the prior sexual relationship between the defendant and the prosecutrix. The court then held a hearing in chambers. At that time, defense counsel stated the defendant would testify that he had sexual intercourse with the prosecutrix on two prior occasions within approximately three to four months before the incident in question. Counsel also stated if the prosecutrix denied ever having been out alone with the defendant, that he had impeachment witnesses who would testify they saw the two of them together.

Later, counsel sought reconsideration of the court’s earlier ruling granting the State’ pretrial motion in limine regarding the victim’s sexual experience or reputation for sexual activity. Defense counsel stated the impeachment witnesses could “also testify as to the reputation of the victim as far as chastity.” The court denied the motion to reconsider.

After trial, defendant filed a motion to confirm that a sufficient offer of proof was made at the time of trial as to the prosecutrix’ reputation for chastity or lack of same, and the court confirmed the sufficiency of the offer of proof. The defendant’s motion alleged in pertinent part:

“3. That each witness was further prepared to testify that:
a. They also knew other members in the community;
b. They were aware of the prosecutrix’ reputation for chastity among those other members of the community;
c. [The prosecutrix’] reputation for chastity was bad whereby she had been referred to as a slut, whore, tramp and other such epithets, referring to her lack of virtue.”

We note the defendant did present witnesses who testified that the prosecutrix’ reputation for truth and veracity was bad. Witnesses also testified Roxanne Burdick’s reputation for truth and veracity was bad.

In deciding whether the defendant’s right of confrontation was denied, the Davis court applied the due process test developed in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038. There, it was held that the constitution requires that the competing interests of the defendant’s right of confrontation and the State’s public policy for enacting the rule be closely examined and a balance struck. If the State’s exclusionary policy does not outweigh the defendant’s need for the evidence, the policy of exclusion must yield.

The State policy underlying the rape shield statute, at least ostensibly as expressed in People v. Cornes, is to prevent the defendant from harassing and humiliating the prosecutrix at trial with evidence of either her reputation for chastity or specific acts of sexual conduct with persons other than the defendant, since such evidence has no bearing on whether she consented to sexual relations with the defendant. Further, exclusion of such evidence keeps the jury’s attention focused only on issues relevant to the controversy at hand. Last, but not necessarily least, the exclusion promotes effective law enforcement because victims can report crimes of rape and deviate sexual assault without fear of having the intimate details of their past sexual activity brought before the public.

In our opinion, the defendant’s need for the excluded evidence has not been clearly shown. He states it was “crucial to the jury’s understanding of this incident in a proper context.” He argues this case is distinguished from Comes and Buford where there were corroborating witnesses, because the case here “boiled down to the word of the prosecutrix against [his],” and that it was the prosecutrix’ testimony alone that established all of the elements of rape.

The defendant’s argument ignores all the evidence which corroborated the prosecutrix’ testimony, such as the physical condition of her apartment (i.e., disconnected phone cord, position of the couch consistent with her version of the struggle, testimony of the neighbors who were awakened by yelling and loud noises); the physical condition of the prosecutrix herself as testified to by the examining physician, Roxanne Burdick, and one of the responding police officers; and her prompt complaint to her best friend, Roxanne Burdick. Defendant’s argument also ignores the fact the jury was instructed as to his accountability for the rape of the prosecutrix by Tom Siefert. The defendant testified the first words he heard the prosecutrix say to Siefert were “to leave her alone and to get out,” and she told the defendant she did not want Siefert near her. The defendant admitted on cross-examination that he saw some of the things Siefert had done to the prosecutrix, but he did not do anything to stop him, at least not until later.

On balance, we believe the interests of the State which are promoted by the rape shield statute far outweighed the defendant’s purported need to cross-examine the prosecutrix concerning her reputation for chastity.

In sum, we conclude the rape shield statute did not deprive the defendant of his right of confrontation, and reversal is not warranted.

Evidence of Other Offense

The defendant asserts the court erroneously allowed admission of the testimony of Brenda Wicinski concerning his use of a badge to impersonate a police officer earlier on the date in question. He argues the evidence that he approached her and displayed a badge to her in order to get her to move her car was not sufficient to establish either his intent or design to commit rape, and it should not have been admitted. He claims the only purpose of such evidence was to persuade the jury of his bad character and propensity to commit a crime. He points out the offense of impersonating a police officer and the offenses with which he was charged were not even the same type of crimes. Referring to the State’s argument that the badge incident was relevant to show identity, intent and design, the defendant asserts his identity was clearly proved by other evidence, including his own stipulation that it was he who showed the badge to Wicinski. Thus, he analogizes the case to People v. Triplett (1981), 99 Ill. App. 3d 1077, in which case the court reversed and remanded on the basis of erroneously admitted evidence of the defendant’s prior armed robbery of a different Clark gas station. The evidence there was offered to show common design and modus operandi and to show the defendant’s knowledge of the Clark station procedures. The Triplett court found the defendant’s familiarity with station procedures was clearly and irrefutably established by other evidence; therefore, its probative value was outweighed by its prejudicial effect. Further the dissimilarities between the prior offense and the charged offense negated its value in showing any common design or modus operandi.

The State contends the evidence was properly admitted to show the defendant’s intent, design, modus operandi and identity as to both the rape and home-invasion charges. In support, it cites People v. McDonald (1975), 62 Illl. 2d 448, 455, wherein it was found:

“Evidence which tends to prove a fact in issue is admissible though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible though it may show the commission of a separate offense. [Citations.] In fact it has been broadly held that evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. [Citations.]”

The State distinguishes the Triplett case, asserting the evidence of the prior offense there was unnecessary to show the defendant’s knowledge because there was testimony by other witnesses as well as the defendant himself. Introduction of evidence of the prior offense in that case was superfluous; it added nothing to the State’s case against the defendant. The State also notes there were fewer similarities between the two offenses in that case, and greater time and distance differences. Further, although the defendant’s identity in this case was established by his own testimony, nevertheless it was also relevant to show design, modus operandi, and intent as to both the offenses, not just the rape offense.

Alternatively, the State argues if it was error to admit the evidence, it was harmless in view of the other ample evidence in the record and the fact the prior offense was not of the type likely to have inflamed the jury or prejudiced it against the defendant.

During the pretrial hearing on the defendant’s motion in limine to exclude this evidence, the facts concerning the impersonation offense and the method of entry of the prosecutrix’ apartment were described to the court as follows:

“[A]t approximately 3:30 a.m. on December 18th, [prosecutrix] was awakened by a knock on her door. She went to the door of her apartment, looked through a window in the door, saw a person she did not recognize at that time who later would be identified as Thomas Siefert; that Thomas Siefert showed her a badge, identified himself as a police officer, told her that he was looking for — they were having problems in the area. He wanted to come into her apartment and take a look.
She opened the door and let him in.
He came in the apartment, walked around a little bit, flipped lights on and off.
After he turned the living room lights off, the defendant John Ellison then came in through the door of the apartment, and [the prosecutrix] would also testify that she knows John Ellison, had known him for approximately one year prior to that time, and that after—
When he came in, or shortly after he came in, he had his coat over his head, and the apartment was dark.
As far as Brenda Wicinski, she would testify that shortly after 3:00 a.m. on the 18th of December, she left work at Kristof s, which is in Round Lake Beach, which is located approximately four blocks from the residence of [the prosecutrix], and that after she left work, her car stalled almost right in front of her place of employment, still within four blocks of [the prosecutrix’] home.
Her car stalled. "While she was there with her car, she was approached by the defendant John Ellison, whom she did not know at that time; that he showed her a badge, told her he was a police officer, and told her to — she had to move her car, and told her to move it into a driveway which was — if she had parked her car where he told her to, it would have been blocked on the front and on either side by buildings.
She informed him that she had already spoken to a Round Lake Beach police officer who told her she didn’t have to move her car; she could stay there.
She then saw Thomas Siefert, whom she did know, and when she saw him, she recognized him and said, ‘Hi, Tom.’
The defendant stayed and talked to her for a couple of minutes and then left.”

In argument, the prosecutor pointed out the common denominators, aside from identity, were the use of the badge; the time (one-half hour to 45 minutes) and place (four blocks) proximity; the same two defendants involved; in each instance, the defendant who knew the woman stayed back out of sight while the defendant who either did not know or who was less able to be recognized by the woman, approached her, displayed the badge, and announced he was a policeman. The court agreed the evidence was admissible, both as to the time and area and modus operandi, and denied the defendant’s motion to exclude it at trial.

We find persuasive the State’s argument that the evidence of the offense of impersonation was admissible as tending to prove the defendant’s unauthorized entry into the prosecutrix’ apartment as well as her lack of consent to intercourse. The defendant contended at trial he did not know how Tom Siefert got into the apartment, and that he used the badge with Brenda Wicinski just to have “a little fun.” The striking similarity of the method of the use of the badge in each instance by both defendants tends to negate the existence of any innocent intent. (See People v. Bartall (1982), 105 Ill. App. 3d 867.) Although time and place proximity alone is an insufficient basis for permitting evidence of other offenses (People v. Lindgren (1980), 79 Ill. 2d 129), such offenses are relevant if additional reasons are present. (People v. Armstrong (1968), 41 Ill. 2d 390.) In the instant case, we believe the evidence of the Wicinski incident was relevant to the defendant’s knowledge as to Siefert’s unauthorized entry of the apartment and concomitantly tends to negate the defense that the prosecutrix consented to intercourse.

Whether to admit or exclude evidence of this type is within the discretion of the trial court. (People v. Lieberman (1982), 107 Ill. App. 3d 949, 955.) In the absence of a clear showing of an abuse of that discretion, no reversal is warranted.

Prior Conviction

The defendant contends the record clearly indicates the trial judge failed to acknowledge any potential prejudice that could result from admission of his prior conviction for burglary, and appeared to ignore the balancing test required by People v. Montgomery (1971), 47 Ill. 2d 510. That test requires the court to weigh the probative value of the evidence of the defendant’s prior conviction against its potential prejudicial effect on the jury. Defendant asserts the court’s crucial knowledge and understanding of Montgomery is not evident in the record. Alternatively, defendant suggests the court abused its discretion in allowing admission of the prior conviction.

The State points out the defendant made the same argument to the trial court during the hearing on his motion in limine. The State countered the defendant’s balance argument, replying that the burglary offense, a felony, is appropriate for impeachment purposes and relates more directly to the issue of credibility than do many other felonies.

The defendant argued at the hearing that the only inference the jury could make from the evidence of the burglary conviction was that the defendant once had “entered into someone’s home without permission and now it’s a second time.” The State responded the jury would likely not make the similarity connection between the offense of burglary and the offenses of rape and home invasion. The court stated it did not believe the evidence of the prior offense would unfairly prejudice the defendant, and denied the motion in limine.

The trial court need not spell out its reasons for allowing a prior conviction as impeachment evidence. (People v. Washington (1973), 55 Ill. 2d 521; People v. Thibudeaux (1981), 98 Ill. App. 3d 1105; People v. Monigan (1981), 97 Ill. App. 3d 885.) However, the record must indicate the court actually applied the balancing test. (People v. Nolden (1980), 91 Ill. App. 3d 532; People v. Bassett (1980), 84 Ill. App. 3d 133.) We conclude the record shows the court did exercise its discretion before denying the defendant’s motion in limine and subsequently allowing evidence of his prior conviction at trial.

Further, no abuse of the court’s discretion is evident, although generally the more similar the prior and present offenses are, the more danger of unfair prejudice. However, the sole fact of similarity is not a reason to exclude the evidence of the prior offense; the balancing .test still applies. While burglary may be committed with regard to any type of building, the offense of home invasion is limited to dwellings, and the offense of home invasion requires no contemporaneous intent to commit either a felony or theft.

•Accordingly, we conclude no clear abuse of the court’s discretion has been shown, and reversal is not warranted.

Reasonable Doubt

Lastly, the defendant contends he was not proved guilty beyond a reasonable doubt of rape and home invasion, and that his convictions must be reversed. He asserts this is so “in light of the prosecutrix’ fear of Roxanne Burdick’s jealousy; her failure and, in fact, initial refusal to seek immediate help; and her admitted failure to fight off the defendant during intercourse.” He argues these factors clouded the complainant’s testimony, rendering it less than clear and convincing. Despite the absence of such clear testimony, the jury nevertheless found the defendant guilty because it was distracted by — and prejudiced against the defendant — by the evidence of the defendant’s prior burglary conviction and his use of a badge earlier that morning to impersonate an officer.

The State responds no reversal is warranted because the prosecutrix’ testimony was clear and convincing and, further, was corroborated by other evidence. We concur with the State.

The defendant’s assertion that the prosecutrix felt compelled to go along with Roxanne’s urging that she charge the defendant had raped her in order to preserve their friendship is not supported by the record. It strains logic to believe, as defendant suggests, the the prosecutrix after being raped three times by two different men would seek comfort in the company of a woman she feared. The record does show she had at one time felt afraid of Roxanne’s jealousy, and requested a shift change at their common place of employment in about September 1981 in order to avoid any confrontation. However, Roxanne testified the cause of their estrangement between February and September of 1981 was because Roxanne had accused her of taking some money from her and because of her rough treatment of Roxanne’s daughter. Roxanne denied the cooling-off of their friendship had even a slight connection with the defendant.

The record shows Roxanne’s testimony that her relationship with the defendant lasted only from October 1980 until July 1981. Further, she did complain in August to her union steward that she was upset because she “found that slut [the prosecutrix] with John [the defendant] in the [Olde Coachman] bar.” However, this incident occurred during the time she and the prosecutrix were estranged as a result of the money matter. They reconciled in September, and Roxanne said she was going out with someone else, therefore, it did not matter to her that the defendant had stopped calling her.

The prosecutrix admitted she worried about being friends with the defendant because of Roxanne’s jealousy, but she did not consider him her boyfriend. The occasions she was with him at the bar or having pizza were not planned encounters; the defendant would arrive at a place where she already was, and in two or three instances he would just show up at her apartment.

She testified she last saw the defendant about two months prior to December 18. At that time she told him “he caused too much trouble between Roxanne and I, and he wasn’t my friend anymore, and that I didn’t want to be his friend, and I slammed the door in his face.”

The theory advanced by the defendant, that the prosecutrix “went along with Roxanne’s urging that she press charges against the defendant” in order to maintain this friendship, does not follow from the above facts. Additionally, the prosecutrix testified that on December 18, 1981, Roxanne was her closest friend. Roxanne was going out with someone else, did not mind that the defendant had stopped seeing her, and the prosecutrix had not seen the defendant after she told him that she did not want to be his friend anymore and slammed the door in his face. Certainly Roxanne’s urging that she call the police is the same exhortation any reasonable person would have made.

Defendant contends the prosecutrix admitted she did not fight off the defendant, thus precluding her claim of rape. He cites People v. Rossililli (1962), 24 Ill. 2d 341, for the proposition that voluntary submission by the female, while she has the power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape. As the State notes, however, there was no evidence in Rossililli of resistance by the victim. She testified only that the defendant said that he would hurt her if she did not comply, and that he held her down. Additionally, we note the court there stated it found her testimony was not clear and convincing, and her testimony as to force and lack of consent was entirely uncorroborated. The court there also found the evidence did not support an inference that the victim was so paralyzed by fear or overcome by physical force that she was powerless to resist. 24 Ill. 2d 341, 347.

Here, although it is true the prosecutrix testified she did not hit, scratch, or bite the defendant, she did testify she tried to run out the door after the defendant came into the dark apartment, and that she swung her arms and legs at the two intruders in order to break free. Further, after once being subdued by Tom Siefert blocking off her breathing by simultaneously covering her nose and mouth with his hand, she broke free and bolted for the door again. She grabbed the defendant, who was kneeling in her path, between his legs and twisted. The defendant then got her in a choke hold, threatened to break her neck, and made her walk into the bedroom where he lay on the bed with her, maintaining his hold on her, until Tom Siefert mounted her and told the defendant he could handle her. She also testified she pushed the defendant away from her as hard as she could, and that while he was having intercourse with her, he threatened her with anal intercourse by Tom Siefert if she did not do as he told her. There was further testimony that Tom Siefert had pulled her hair, and had bitten her cheek.

There was also physical evidence which corroborated the prosecutrix’ version that the intercourse was nonconsensual. The physician who examined her shortly after the rape, testified she had inflammation of her left scalp area, swelling on her cheek, scratches on her nose, redness in her neck area, and abrasions and redness on her genitalia. The doctor indicated those physical manifestations are not usual incidents of sexual intercourse. Roxanne Burdick and police officer Kuffel’s testimony about the prosecutrix’ physical condition were essentially the same as the doctor’s.

Defendant claims the prosecutrix’ failure to seek “the most immediate or effective help” after the incident is the third and final factor which casts reasonable doubt on his guilt. He points out she did not seek help from her neighbors in the adjacent apartment, the Divokys, nor from the police at the station located merely one block from her apartment. Rather, she walked five or six blocks to Roxanne’s house, and rejected the suggestion that the police be called. Defendant claims the prosecutrix’ reluctance and delay in making a prompt complaint weakens her testimony, and raises serious doubt, citing People v. Szybeko (1962), 24 Ill. 2d 335, 340, and People v. Bain (1972), 5 Ill. App. 3d 632, 635.

As the State points out, the victim in Szybeko did not complain until six hours after the incident, and failed to present either the blood-splattered dress she claimed she was wearing, or produce the doorman from her dormitory who she testified had seen her condition and the dress immediately after the incident. Additionally, the defendant’s testimony was wholly corroborated by another witness. In Bain, the court considered that even the evidence which tended to corroborate the victim’s testimony was weakened by her failure to make a timely complaint at either her first or second opportunity; to-wit, to her friend’s mother, or to her roommate. However, the court had initially concluded that the victim had made no serious physical effort to resist. Such is not the case here.

In addition to the prosecutrix’ resistance, the record here shows there were valid reasons why she did not first complain to her neighbors or to the police. She testified that even though she screamed during the attack, none of her neighbors responded to the screams. Secondly, although she admitted she did not believe Tom Siefert was a policeman after the rape occurred, nevertheless, he had shortly before used a badge and the authority it represents to gain access to her apartment. Under these circumstances, it does not seem illogical to us that she would bypass these two first opportunities and report her complaint instead to the woman whom she regarded as her closest friend.

We consider ludicrous the defendant’s suggestion that the prosecutrix wanted to “be first” to give her version of the story to Roxanne before the defendant could get to tell Roxanne of his and the prosecutrix’ intimacy. The defendant clearly testified he did not like Roxanne, but he did like the prosecutrix. We can perceive of no reason why he would wish to tell Roxanne anything at all about his personal relationship with the prosecutrix. We point out also that the first thing the prosecutrix tried to do after the rape was to call someone on the phone. She was unable to do so, however, because the defendant or Siefert had unplugged and hidden the phone cord. The second thing she did was look for her keys, but she could not find them. We conclude her complaint was prompt, and no reasonable doubt as to the defendant’s guilt was raised thereby.

The reviewing court will not set aside a verdict of rape unless the evidence is so palpably contrary to the finding or so unreasonably improbable and unsatisfactory that there is reasonable doubt as to the guilt of the accused. (People v. Witte (1983), 115 Ill. App. 3d 20, 24; People v. Reese (1973), 54 Ill. 2d 51, 57-58.) The evidence here sustains the defendant’s conviction for rape, and no reversal is warranted.

As we initially noted, the defendant was sentenced to 12 years’ imprisonment for rape, and to the same term of imprisonment for the home-invasion conviction, which we now vacate. Considering that the trial judge sentenced the defendant separately for each offense, and the record does not indicate that the trial court was influenced by the home-invasion conviction in imposing the sentence for rape, a remand for resentencing is unnecessary. People v. Payne (1983), 98 Ill. 2d 45, 57.

The defendant’s conviction and sentence for home invasion is vacated due to the failure of the indictment to state an offense; the judgment and sentence of the circuit court of Lake County as to the rape offense is affirmed.

Affirmed in part; vacated in part.

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


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    ROBERT L. BRUMLEY, Plaintiff-Appellant, v. TOUCHE ROSS & COMPANY, Defendant-Appellee.
    Second District
    No. 83 — 313
    Opinion filed April 24, 1984.
    William Biederman, of Marks, Katz, Randall, Weinberg & Blatt, of Chicago, for appellant.

      George J. Casson, Jr., and John W. Rotunno, both of Bell, Boyd & Lloyd, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Robert L. Brumley, appeals from an order of the circuit court which dismissed his amended complaint against defendant, Touche Ross & Company (Touche Ross), in which damages were sought for the alleged professional negligence of Touche Ross in the preparation of certified financial statements for a third party, KPK Corporation (KPK). KPK is not a party to this action.

The central issue considered in this appeal is whether an accountant owes a duty to a third party for negligence in preparing an audit report for the accountant’s client.

Plaintiff’s amended complaint consisted of one count in which he alleged that Touche Ross is a partnership of certified public accountants which was engaged by KPK as independent auditors; that Touche Ross did audit the books and records of KPK and its subsidiaries and on October 29, 1976, issued an audit report to the board of directors and stockholders of KPK which contained a certificate stating, inter alia, that the report presented “fairly the financial position of KPK Corporation and subsidiaries at May 31, 1976 and 1975, and the results of their operations and charges in their financial position for the years then ended, in conformity with generally accepted accounting principles during the period ***.”

The complaint further alleged that Touche Ross knew and foresaw that its audit report would be circulated by KPK in carrying on its business, including its submission to potential investors in the company; that it was foreseeable to Touche Ross that KPK would submit the report to potential investors, such as plaintiff, who would rely upon the audit report and invest in the company on its strength; that Touche Ross had a duty to potential investors such as plaintiff to carry out the audit in accordance with generally accepted auditing standards and to issue a report which fairly presented KPK’s financial position in accordance with its certificate.

The complaint alleged further that plaintiff negotiated with the stockholders of KPK in 1977 to acquire two-thirds of its issued stock and was furnished with a copy of the audit report; that he relied upon the report and was induced thereby to purchase stock of KPK for $5.7 million; that the audit report did not fairly present the financial condition of KPK (in specified ways) and Touche Ross breached its duty to plaintiff by negligently performing its audit of KPK in a manner which failed to meet generally accepted auditing standards (specified in the complaint).

Plaintiff’s complaint concluded that the negligence of Touche Ross rendered the certified audit report as submitted to plaintiff a false statement of material fact, upon which plaintiff relied, proximately causing damages to plaintiff of $2,500,000.

Touche Ross moved to dismiss the complaint on the grounds plaintiff was collaterally estopped by a judgment of the circuit court of Kane County entered on July 2, 1982; that judgment was affirmed by this court in Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 457 N.E.2d 66; Touche Ross was not a party to the litigation. In the alternative, Touche Ross sought dismissal on the grounds that plaintiff failed to join necessary parties to the litigation, viz., KPK and Howard A. Koop, the sole stockholder of KPK prior to plaintiff’s purchase of KPK stock.

After arguments, the trial court dismissed the complaint, finding that plaintiff had failed to join necessary parties and was otherwise collaterally estopped by the Kane County judgment. The court also found, sua sponte, that the complaint failed to state sufficient facts which would give rise to a duty owed by Touche Ross to plaintiff. Plaintiff appeals contending that the trial court erred in all three findings.

For purposes of ruling on a motion to dismiss, all well-pleaded facts contained in a complaint must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Palatine National Bank v. Charles W. Greengard Associates, Inc. (1983), 119 Ill. App. 3d 376, 456 N.E.2d 635; Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 442 N.E.2d 648.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proven under the pleadings which would entitle plaintiff to relief. (Palatine National Bank v. Charles W. Greengard Associates, Inc. (1983), 119 Ill. App. 3d 376, 456 N.E.2d 635.) Although Illinois requires fact rather than notice pleading (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 603(b), 2 — 612(c); Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96), a complaint will not be dismissed if facts essential to its claim appear by reasonable implication and it reasonably informs the defendants of a valid claim under a general class of cases. Magana v. Elie (1982), 108 Ill. App. 3d 1028, 439 N.E.2d 1319; Central States, Southeast & Southwest Areas Pension Fund v. Gaylur Products, Inc. (1978), 66 Ill. App. 3d 709, 384 N.E.2d 123.

We first address the issue of whether the complaint alleged facts which give rise to a duty owed by Touche Ross to plaintiff. Research by the parties and this court has revealed no Illinois cases which define the duty owed by a public accountant to a third party, not in privity, for damages proximately caused by an accountant’s negligence in preparation of an audit report.

Plaintiff contends the accountant’s duty extends to all foreseeable parties who may rely upon defendant’s certified audit report to exercise due care in its preparation. Defendant argues that an accountant owes a duty only to those with whom he is in privity or, at most, to those other parties who the accountant knew would rely upon his work.

The rule as stated in Ultramares Corp. v. Touche (1931), 255 N.Y. 170, 174 N.E. 441, has often been applied in other jurisdictions. Justice Cardozo there wrote that a public accountant is not liable in negligence to third parties with whom he is not in privity as such a duty could result in liability to an unlimited class of foreseeable plaintiffs and public policy required a limitation of that duty. Justice Cardozo noted:

“If liability for negligence exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath a cover of deceptive entries, may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences.” (255 N.Y. 170,179-80,174 N.E. 441, 444.)

Many courts have applied the Ultramares rule when considering public accountant liability. Dworman v. Lee (1981), 83 App. Div. 2d 507, 441 N.Y. Supp. 2d 90 (denial of relief to sureties of corporation); Briggs v. Sterner (S.D. Iowa 1981), 529 F. Supp. 1155 (no duty of accountants to purchasers of corporate securities); Nortek, Inc. v. Alexander Grant & Co. (5th Cir. 1976), 532 F.2d 1013 (applying Florida law); MacNerland v. Barnes (1973), 129 Ga. App. 367, 199 S.E.2d 564; Koch Industries, Inc. v. Vosko (10th Cir. 1974), 494 F.2d 713 (applying Kansas law that accountant is not liable to ultimate purchaser of business); Hochfelder v. Ernst & Ernst (7th Cir. 1974), 503 F.2d 1100, rev’d on other grounds (1976), 425 U.S. 185, 47 L. Ed. 2d 668, 96 S. Ct. 1375 (accountants not liable to customers of brokerage firm whose president perpetrated a fraudulent scheme); Shofstall v. Allied Van Lines, Inc. (N.D. Ill. 1978), 455 F. Supp. 351 (accountants owe no duty to prospective investors of corporation).

Other courts have departed from the Ultramares decision. In H. Rosenblum, Inc. v. Adler (1983), 93 N.J. 324, 461 A.2d 138, plaintiffs, who were purchasers of stock in a publicly traded corporation, sought damages for negligence in the preparation of the audit report of that corporation’s financial statements. The New Jersey Supreme Court noted the Ultramares decision and the public policies applied therein, but considered that the concept of privity relied upon by Justice Cardozo did not correctly define the scope of the duty of a public accountant. Rather, the court found that the privity requirement had been abandoned by most courts with respect to tort litigation and held that the reasonably foreseeable consequences of a negligent act should define the duty of the accountant and the limits of actionable negligence. The court noted that “[certified financial statements have become the benchmark for various reasonably foreseeable business purposes and accountants have been engaged to satisfy those ends. In those circumstances accounting firms should no longer be permitted to hide within the citadel of privity and avoid liability for their malpractice.” (93 N.J. 324, 353, 461 A.2d 138, 153.) Accordingly, the court held that an independent auditor “has a duty to all those whom that auditor should reasonably foresee as recipients from the company of the statements for its proper business purposes, provided that the recipients rely on the statements pursuant to those business purposes” (93 N.J. 324, 352, 461 A.2d 138, 153), noting further, “[the accountant’s] ignorance of the precise use to which the statements would be put does not eliminate their obligation. Applying the principle previously stated, we find first that it is necessary only that *** the entity for whom the audit was being made, used it for a proper business purpose. *** [The accountants] could reasonably expect that their client would distribute the statements in furtherance of matters relating to its business. Having inserted the audit in that economic stream, *** [the accountants] should be responsible for their careless misrepresentations to parties who justifiably relied upon their expert opinions.” 93 N.J. 324, 356, 461 A.2d 138,155.

Other jurisdictions have adopted a similar rule that public accountants may be liable to plaintiffs, who are not exactly identifiable, but who belong to a limited class of persons whose reliance on the accountant’s representations is specifically foreseen; this duty requires the accountant to prepare audit reports according to generally accepted accounting principles. Citizens State Bank v. Timm, Schmidt & Co., S.C. (1983), 113 Wis. 2d 376, 335 N.W.2d 361 (accountant’s liability extends to lending bank); Haddon View Investment Co. v. Coopers & Lybrand (1982), 70 Ohio St. 2d 154, 436 N.E.2d 212 (accountant’s liability to limited partners); Bonhiver v. Graff (Minn. 1976), 248 N.W.2d 291 (accountant liable to agent of insurance company audited); Aluma Kraft Manufacturing Co. v. Elmer Fox & Co. (Mo. App. 1973), 493 S.W.2d 378 (accountant liable to purchaser of stock); Shatterproof Glass Corp. v. James (Tex. Civ. App. 1971), 466 S.W.2d 873 (accountant liable to plaintiff who lent money to corporation based upon audit); Ryan v. Kanne (Iowa 1969), 170 N.W.2d 395 (accountant liable to corporation who took over assets and liabilities of audited predecessor business); Rhode Island Hospital Trust National Bank v. Swartz, Bresenoff, Yavner & Jacobs (4th Cir. 1972), 455 F.2d 847 (accountants liable to lender of corporation audited); Tiffany Industries, Inc. v. Harbor Insurance Co. (W.D. Mo. 1982), 536 F. Supp. 432 (applying Missouri law that accountant is liable to insurer of audited corporation); Coleco Industries, Inc. v. Berman (E.D. Pa. 1976), 423 F. Supp. 275 (applying New Jersey law that accountants were liable to shareholders of corporation audited); Seedkem, Inc. v. Safranek (D. Neb. 1979), 466 F. Supp. 340 (applying Nebraska and Indiana law holding accountant liable to creditor of corporation audited); Rusch Factors, Inc. v. Levin (D.R.I. 1968), 284 F. Supp. 85 (applying Rhode Island and New York law that accountant would be liable to creditor of corporation audited).

The Federal court in Illinois has reached a similar conclusion after analysis of related Illinois decisions. In Merit Insurance Co. v. Colao (7th Cir. 1979), 603 F.2d 654, the court noted that privity between litigants was not required under Illinois law for the maintenance of a negligence action. It found that a complaint alleging that defendant accountants knew or should have known that certified financial statements in their audit report would be used by third persons such as the plaintiff as a basis for business decisions was sufficient to withstand a challenge under the law of Illinois that the complaint was defective for want of facts showing a duty. In reaching this result, the majority of the seventh circuit panel relied substantially upon the Illinois Supreme Court’s opinion in Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.

We consider that Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, and Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, provide the guidelines necessary to resolution of the question presented. (See also Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60.) In Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, a land surveyor who had been employed by a prior owner of land acquired by a third-party purchaser, was held liable to the purchaser who had relied upon the survey. The court held “that lack of direct contractual relationship between the parties is not a defense in a tort action in this jurisdiction. Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.” (43 Ill. 2d 54, 62.) In considering the scope of the liability where a defendant has negligently supplied inaccurate information, Justice Underwood noted liability was not ordinarily imposed where the person damaged was in the class of persons whose reliance on the information was only “foreseeable,” but has been imposed when reliance of a third party was “known” (43 Ill. 2d 54, 63-640). The court also considered the Ultramares case, noting that the unknown and unlimited liability factor associated with a general foreseeability rule, as stated by Mr. Justice Cardozo, was not to be lightly discounted and further noted that “even in the accounting field where the potential liability argument is much more persuasive than here, two recent cases have held liability could exist to third parties whose reliance was foreseeable by the negligent accountant.” 43 Ill. 2d 54, 66-67; see Rusch Factors, Inc. v. Levin (D.R.I. 1968), 284 F. Supp. 85; Fischer v. Kletz (S.D.N.Y. 1967), 266 F. Supp. 180.

In Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, the court extended a duty to a surveyor premised upon the pleadings and proof of an absolute guarantee of accuracy made by the surveyor on the inaccurate plat; defendant’s knowledge the plat would be used and relied upon by others than the person ordering it, including plaintiff; that potential liability in the case was restricted to a small group; and, that permitting recovery by a reliant user whose use of the plat was foreseeable will promote caution by surveyors. In that case, the surveyor’s guarantee of accuracy was absolute and the intended reliance upon the plat by the third party was known to him.

In Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, the court determined there could be a duty owed by an attorney to a third party who was not his client, thus providing a broader scope of liability in a negligence action than privity. There, the test of the scope of an attorney’s duty to a third party was whether the attorney was acting at the direction of or on behalf of his client to benefit or influence a third party. We conclude a similar rule is appropriate to the duty owed to third parties by an accountant.

In his complaint, however, plaintiff alleges Touche Ross had a duty extending to all potential investors in KPK Corporation as it was foreseeable KPK would submit the audit report to that class of persons. The complaint does not allege Touche Ross knew of plaintiff or that the report was to be used by KPK to influence plaintiff’s purchase decision nor does it allege that was the primary purpose and intent of the preparation of the report by Touche Ross for KPK. Absent such allegations of fact, we find plaintiff’s complaint insufficient to set forth a duty on the part of defendant to plaintiff.

In reaching this conclusion we note that the defendant accountant’s certificate on the audit report was not absolute, but was subject to the unknown outcome of certain pending litigation and was also subject to certain inventory records not available to Touche Ross.

While the trial court did correctly dismiss plaintiff’s amended complaint for failure to state a cause of action, it did so sua sponte on this ground without giving plaintiff an opportunity to amend so as to meet that requirement. On remand, plaintiff will be allowed to amend his complaint to state a cause of action against defendant, if he wishes to do so.

Plaintiff also contends that the trial court erred in holding that the doctrine of collateral estoppel barred plaintiff’s action against Touche Ross due to the prior judgment in the Kane County litigation entitled Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 457 N.E.2d 66. The doctrine of collateral estoppel provides that an adjudication of the merits of an issue by a court of competent jurisdiction precludes relitigation of the issue in a subsequent action. (Johnson v. Nationwide Business Forms, Inc. (1981), 103 Ill. App. 3d 631, 431 N.E.2d 1096.) The only pertinent questions for the application of collateral estoppel are (1) whether the issue decided in the prior adjudication is identical with the one presented in the suit in question; (2) whether there had been a final judgment on the merits; and (3) whether the party against whom estoppel is asserted is a party, or in privity with the party, to the prior adjudication. Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9.

We find the trial court erred in applying the doctrine of collateral estoppel to bar plaintiff’s action. This court recently affirmed the Kane County judgment in Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 457 N.E.2d 66, and will take judicial notice of its opinion in the case. (May Department Stores Co. v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 355 N.E.2d 7; Filrep, S.A. v. Barry (1980), 88 Ill. App. 3d 935, 410 N.E.2d 1137.) In Koop, the issue litigated was whether Koop made false representations to KPK Corporation and Brumley with respect to the sale of KPK stock to Brumley. There was no question of the alleged negligence of Touche Ross presented to the court in that case, nor was Touche Ross a party to that litigation. In the present case, plaintiff’s allegations against Touche Ross consist solely of Touche Ross’ alleged negligence in the audit and preparation of the audit report of KPK Corporation. Accordingly, this issue has not been resolved by the prior litigation and plaintiff’s complaint is not barred by the doctrine of collateral estoppel.

Finally, plaintiff contends that the trial court erred in dismissing his complaint for his failure to join necessary parties, viz., KPK Corporation and Howard Koop. We agree. A necessary party is an individual or entity having a present, substantial interest in the matter being litigated, and in whose absence complete resolution of the subject matter in controversy cannot be achieved without affecting that interest. (Bovinett v. Rollberg (1979), 73 Ill. App. 3d 490, 392 N.E.2d 27.) A necessary party is one whose presence in a lawsuit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter which would be materially affected by a judgment entered in his absence; (2) to reach a decision which will protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406; Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 398 N.E.2d 278.

Under these criteria, neither KPK nor Howard Koop is a necessary party to this litigation. The issues presented by plaintiff’s complaint, as amended, consist of the alleged negligence of Touche Ross in preparation of the audit report, the plaintiff’s reliance on that report and the damages suffered by plaintiff as a result of that reliance. There is no interest of KPK or Koop which would be adversely affected by a resolution of those issues. In any event, the nonjoinder of parties is not grounds for the dismissal of a complaint unless a reasonable opportunity is provided to add them as parties. (Ill. Rev. Stat. 1981, ch. 110, par. 407; Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) However, we note that under the circumstances of this case plaintiff would be unable to join either KPK or Koop. The record reflects that one of the prior complaints filed by plaintiff in the case did contain additional counts addressed to KPK and Koop. Those counts were later dismissed in the amendment to the second amended complaint as a result of the res judicata effect of the Kane County judgment as to those parties and any attempt to add KPK or Koop as defendants in this case would be barred.

Accordingly, the judgment of the circuit court which dismissed the amended complaint for failure to state a cause of action is affirmed and its judgment is otherwise reversed. The cause will be remanded to give plaintiff an opportunity to offer amendments to his complaint.

Affirmed in part; reversed in part and remanded.

HOPE and VAN DEUSEN, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
      In re K.M.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. K.M.B., Respondent-Appellant).
    Fourth District
    No. 4 — 83—0611
    Opinion filed April 24, 1984.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

K.M.B., a 13-year-old female, appeals the circuit court’s order placing her in the Salem Children’s Home. She contends that she was denied her constitutional right to counsel during the dispositional hearing.

We disagree and affirm.

THE FACTS

On October 1, 1982, K.M.B. was found to be delinquent and adjudicated a ward of the court. She was placed on probation for 24 months. On April 18, 1983, Judge Witte found that K.M.B. had wilfully violated the conditions of her probation and revoked her probation. Elizabeth Robb, an assistant public defender, served as K.M.B.’s guardian ad litem throughout all of these proceedings.

At the dispositional hearing, Robb again appeared on behalf of K.M.B. Robb informed Judge Witte that K.M.B. had requested her to withdraw as counsel because — contrary to K.M.B.’s wishes — Robb wanted to recommend that K.M.B. be placed in a juvenile home. K.M.B. wished to remain in her mother’s home. K.M.B.’s mother also asked Judge Witte to replace Robb as K.M.B.’s counsel.

Judge Witte replied that Robb was employed by the county as an attorney to represent K.M.B. and also to use her professional judgment to protect K.M.B.’s best interest. Judge Witte stated:

“I have no reason to believe that Mrs. Robb would not help her client [K.M.B.] present all the information and all of her, and her position as to the best she may, and if she wants to make a different recommendation that’s certainly her professional responsibility and obligation.”

Judge Witte refused to replace Robb as K.M.B.’s counsel. He did, however, appoint counsel for K.M.B.’s mother and father and continued the dispositional proceeding for a later hearing.

At the second dispositional hearing, the State introduced into evidence a predispositional hearing report of juvenile court officer Diane McKimmey. In her report, McKimmey evaluated K.M.B.’s entire background including the condition of K.M.B.’s mother’s home. K.M.B.’s mother is single and unemployed. She lives with three of her children — including K.M.B. — in Bloomington, supports herself and the children with Aid to Dependent Children payments, and receives no child support from K.M.B.’s father.

McKimmey noted that DCFS had received numerous complaints concerning the mother’s residence. Those complaints included: loud parties into the early morning hours, underage drinkers, the uncleanliness of the home, and the number of residents in the home who are not members of the mother’s family. McKimmey expressed her concern that K.M.B.’s mother did not provide an adequate parental role for K.M.B. McKimmey recommended that K.M.B. be placed in the Salem Children’s Home.

At the end of the hearing, Robb told the court that K.M.B. desired to remain in her mother’s home. Robb then continued:

“I don’t think that there’s any question that placement is necessary at this time. I think that this situation has just deteriorated to such a degree that to keep the Minor in this *** type of living situation *** we are doing an extreme disservice to her ***. I certainly believe that *** the factors which have caused the situation *** are certainly as a result of many, many factors, unemployment of [K.M.B.’s mother], no support provided by [K.M.B.’s father], having to deal with a number of children on a very little income, trying to work, provide, be a single parent, and deal with someone, with a child who has obviously some serious problems which affect her ability to learn and her ability to interact with other individuals, *** I don’t think any person is to blame as much as the environment and economic situation are the cause and factor.
I just don’t see any other solution than placement *** in a very structured situation where there is a reinforcement of things taught in a school, in the living environment in order to try and address the deteriorating situation which is occurring in her home.”

Judge Witte then ordered Juvenile Court Services to assume guardianship of K.M.B. and to place her in the Salem Children’s Home.

THE LAW

On appeal, K.M.B. argues that she was denied her constitutional right to counsel because her attorney, Robb, recommended placement outside of the home even though she, K.M.B., desired to stay in her mother’s home. We cannot agree.

The seminal case on a minor’s right to counsel is In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. In Gault, the United States Supreme Court found that the due process clause of the fourteenth amendment to the United States Constitution requires that juveniles be represented by counsel during proceedings to determine delinquency.

The responsibility of the court-appointed juvenile counsel, however, is different than that of other court-appointed counsel. The juvenile counsel must not only protect the juvenile’s legal rights but he must also recognize and recommend a disposition in the juvenile’s best interest, even when the juvenile himself does not recognize those interests. As our supreme court stated in In re Beasley (1977), 66 Ill. 2d 385, 389, 362 N.E.2d 1024, 1026:

“Although such a proceeding [under the Juvenile Court Act] retains certain adversary characteristics, it is not in the usual sense an adversary proceeding, but it is one to be administered in a spirit of humane concern for and to promote the welfare of the minor as well as to serve the best interests of the community.”

The United States Supreme Court in Gault explicitly recognized the unique role of the juvenile’s counsel:

“Recognition of the right to counsel involves no necessary interference with the special purposes of juvenile court procedures; indeed, it seems that counsel can play an important role in the process of rehabilitation.” In re Gault (1967), 387 U.S. 1, 38 n.64, 18 L. Ed. 2d 527, 552 n.64, 87 S. Ct. 1428, 1449 n.64.

It is not always possible for a juvenile’s counsel to carry out his unique responsibility to protect the juvenile’s best interest without alienating the juvenile. A delinquent juvenile’s wishes are often not in his best interest. Although the juvenile’s counsel should consider the juvenile’s wishes and inform the court of those wishes, the counsel has an obligation to protect the juvenile’s best interest. If protecting a juvenile’s best interest requires that the counsel make a recommendation contrary to the juvenile’s wishes, then the counsel has, as Judge Witte stated, a “professional responsibility and obligation” to make that recommendation.

In the present case, Robb did exactly that. She considered K.M.B.’s wish to remain in her mother’s home and she informed the court of K.M.B.’s desire. Then after considering the juvenile court officer’s report, Robb stated that in her opinion it was in K.M.B.’s best interest to be placed in a structured home instead of remaining with her mother. Robb then recommended that K.M.B. be placed in the Salem Children’s Home.

Robb’s recommendation did not deprive K.M.B. of her right to counsel. Instead, the record reveals that Robb’s recommendation was based on her professional evaluation of K.M.B.’s best interest and indicates to us not only that K.M.B. received counsel but that she received very conscientious counsel.

Attorney Robb, in fact, is to be highly commended.

Affirmed.

TRAPP and MILLER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD PETTIGREW, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0743
    Opinion filed April 24, 1984.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Armed robbery.

A life sentence under the habitual offender act.

We affirm.

FACTS

The facts here are simple and the issue is singular. After a jury trial, Richard Pettigrew was found guilty of two counts of armed robbery. Prior to the sentencing hearing, the State’s Attorney filed a verified statement, stating that Pettigrew was eligible for a sentence of life imprisonment under section 33B — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1) (habitual offender act) because Pettigrew had previously been convicted twice for armed robbery — once in Wisconsin in 1970 and a second time in Illinois in 1976.

At the sentencing hearing, the trial judge found that with Pettigrew’s most recent conviction he now had three convictions for a Class X felony and therefore he was a habitual criminal within the meaning of the act. The trial judge then sentenced Pettigrew to life imprisonment.

On appeal, Pettigrew raises only one issue — whether his sentence for life imprisonment must be vacated because the act violates the separation of powers provisions of the Illinois Constitution. He argues that the act is unconstitutional. The State replies that it is not.

We find first, that Pettigrew waived this issue by failing to raise it in the trial court and, second, that the act does not violate the Illinois Constitution.

WAIVER

The law is well settled in Illinois that a nonjurisdictional issue, even one of a constitutional character, which has not been properly presented in the trial court and properly preserved for review, will not be considered on appeal. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) As our supreme court stated in People v. Brand (1953), 415 Ill. 329, 337, 114 N.E.2d 370, 374:

“It is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling.”

After reviewing the record, it is clear to us that Pettigrew failed to raise in the trial court below the issue of whether the act violated the separation of powers provisions of the Illinois Constitution. Consequently, he has waived his right to raise that issue here.

CONSTITUTIONALITY OF THE ACT

Even if Pettigrew had properly preserved the issue for appeal, he is incorrect in claiming that the act violates the separation of powers provisions of the Illinois Constitution. The pertinent parts of the act state:

“Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.
* * *
Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment.” (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1.)

And

“[ajfter a plea or verdict or finding of guilty and before sentence is imposed, the prosecutor may file with the court a verified written statement signed by the State’s Attorney concerning any former conviction of an offense set forth in Section 33B — 1 rendered against the defendant. The court shall then cause the defendant to be brought before it; shall inform him of the allegations of the statement so filed, and of his right to a hearing before the court on the issue of such former conviction and of his right to counsel at such hearing; and unless the defendant admits such conviction, the court shall hear and determine such issue, and shall make a written finding thereon.” Ill. Rev. Stat. 1981, ch. 38, par. 33B — 2.

Pettigrew maintains that section 33B — 2 of the act violates the separation of powers provisions of the Illinois Constitution because it vests in the State’s Attorney’s office — which is part of the executive branch of State government — the absolute power to invoke the provisions of the act. Pettigrew argues that such authority to invoke is actually a sentencing power and under the State constitution such power belongs exclusively to the judicial branch of State government. We disagree.

The power to petition the court to invoke the sanctions of the act is not the power to sentence. Under the act, the power to sentence remains with the trial judge. As our supreme court stated in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 536, 397 N.E.2d 809, 812:

“There are countless occasions in the trial of a criminal proceeding where a judicial ruling that is adverse to the defendant and may affect the ultimate outcome of the prosecution will not, and ordinarily cannot, be made unless a request for the ruling has been made by the prosecution.”

The power given the State’s Attorney under the act is simply another one of those occasions.

In addressing a similar separation of powers challenge to section 5 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 705— 12) (habitual juvenile offender act), our supreme court stated in People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 79-80, 413 N.E.2d 1269, 1275-76:

“It is indisputable that the legislature has the authority to define offenses against the People and to determine sentences ***. Such legislative action necessarily limits the inquiry and function of the judiciary in imposing sentences, but this alone does not render the legislation violative of the constitutional provisions upon which respondents rely. Any resulting diminution of the judiciary’s role is adequately remedied by the legislature’s clear and comprehensive treatment of the subject ***. We consider it to be entirely reasonable and constitutionally permissible for the legislature to so provide and to authorize the disposition specified in the legislative scheme it has developed.”

In conclusion, Pettigrew waived the one issue he raises on appeal, and even so, the habitual offender act is clearly constitutional. Accordingly, we affirm.

Affirmed.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE STOUDER

text:
    CANTON STATE BANK, Plaintiff-Appellee, v. ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellants.
    Third District
    No. 3 — 83—0457
    Opinion filed April 12, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Susan C. Weidel and Georgene M. Wilson, Assistant Attorneys General, of counsel), for appellants.
    Thomas G. Harvel and Homer W. Keller, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

In September and October, 1978, five female employees of the Canton State Bank filed charges with the Fair Employment Practice Commission (FEPC or Commission) against their employer claiming that the bank discriminated on the basis of sex by paying a higher salary to a male employee for performing the same duties. The Commission filed a complaint against the bank on March 5, 1979. The administrative law judge who presided over the hearing decided that the bank was engaging in sex discrimination. The bank appealed and the Commission upheld the decision of the administration law judge. On further review the circuit court of Fulton County reversed the Commission’s decision, finding among other things that the administrative law judge’s decision that the bank did not not have a management-training program was against the manifest weight of the evidence. We agree.

The complainants base their claim on the fact that a male employee, Thomas Wheeler, was paid more than themselves for performing substantially the same work. Thomas Wheeler, the alleged management trainee, began working for the bank in 1974 as a part-time employee. Before graduating from college after having second thoughts about pursuing his planned teaching career, Wheeler discussed permanent employment at the bank with Otto Stephenitch, the bank president, after graduating from college as an alternative to teaching. In March 1977 Wheeler began working at the bank. He started in the bookkeeping department, and in July 1977 he replaced the department supervisor for two weeks while she was on vacation. Shortly afterward in the same month Wheeler moved to the main floor and then to the drive-in-window to train as a teller. He replaced both the drive-in supervisor and the main floor supervisors when they went on vacation. Of the five complainants only one was a supervisor of Wheeler, and Wheeler was making more than any of them while he was working in the departments in which they worked.

Before discussing our reasons for deciding that the administrative law judge’s decision was against the manifest weight of the evidence, we will briefly discuss the bank’s claim that the administrative law judge improperly decided this case as an “equal pay” claim rather than as a sex-discrimination case. The bank reasons that the FEPC had no authority to decide a wage-discrimination claim because the sole remedy for such claims is the female employment act (Ill. Rev. Stat. 1979, ch. 48, par. 4(a)). The female employment act makes it a misdemeanor to discriminate against women in payment of wages and imposes a substantial fine. The bank’s argument would preclude a civil action based upon wage discrimination in Illinois. Although there is no case law deciding this issue, the “Guidelines on Discrimination in Employment” promulgated by the FEPC suggest that such a cause of action is within the scope of the FEPA. The Guidelines considered it a violation “for an employer *** to differentiate between men and women performing the same or substantially similar work in fixing the wages, benefits and compensation to be made to such employees.” See City of Chicago v. Illinois Fair Employment Practices Com. (1980), 87 Ill. App. 3d 597, 601, 410 N.E.2d 136.) We find that wages are a “term or condition of employment” and, therefore, one type of discrimination covered by the Act. The administrative law judge properly considered this a wage-discrimination case.

In so holding we do not find that we must reach a different decision than did the trial judge, because we also find that the administrative law judge’s decision was against the manifest weight of the evidence. We have considered the evidence in the record and find that, although no formal management training plan had been adopted by the bank and the departments in which Wheeler worked stated they were never informed that Wheeler was a management trainee, the evidence overwhelmingly supports the proposition that Wheeler was hired to perform a different job than the complainants. No other employee at the bank temporarily assumed a supervisory position in a department in which they had worked for only three months when other employees in that department knew far more about that area of the Bank. In Shultz v. First Victoria National Bank (5th Cir. 1969), 420 F.2d 648, the circuit court of appeals reviewed a bank’s alleged management training program to decide whether such plan qualified as an exception to the provision of the Equal Pay Act which requires that employees be paid equally for performing the same tasks. Although the court in Schultz found that the bank did not have a bona fide training program, it based its decision largely upon the fact that the “trainees” moved through departments of the bank just as any other employee would to work his/her way up through the ranks. The court described the rotation of the trainees as “unpredictable, sporadic, and unplanned” (420 F.2d 648, 655), and their rotation was largely based upon the bank’s personnel needs. In contrast to the situation described in Shultz, Wheeler was moved regularly from department to department. As of the time these charges were filed, only slightly more than a year after Wheeler had begun working full time at the bank, he had worked in three departments of the bank and had substituted for all three department supervisors when they were on vacation. None of the complainants had moved more than once to a different department, and all of the complainants had worked at the bank at least three years prior to this proceeding. Also, none of them had a college degree. We find no support in the record for the administrative law judge’s finding that the training program was an afterthought by the bank adopted to avoid this sex-discrimination charge. We, therefore, agree with the circuit court that the administrative law judge’s finding that a management-training program did not exist at the bank is contrary to the manifest weight of the evidence.

This finding is dispositive of the wage-discrimination claim, because without any male employees performing substantially the same work as the female claimants no discrimination based upon sex occurred. The decision of the circuit court of Fulton County is therefore affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.