author: PRESIDING JUSTICE MEJDA JUSTICE PINCHAM,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIJAH DANIELS, Defendant-Appellant.
    First District (5th Division)
    No. 83—0919
    Opinion filed December 28, 1984.
    PINCHAM, J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Robert E. McAuliffe, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Brian S. Crowley, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

After a bench trial, defendant, Elijah Daniels, was found guilty of attempted rape (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4) and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3). The trial court held that the charges merged and defendant was sentenced to five years’ imprisonment for attempted rape. Defendant raises a single issue for review: whether he was proved guilty beyond a reasonable doubt. We affirm.

The following facts were adduced at trial. The complaining witness, a 16-year-old girl, testified that around 10 p.m. on October 18, 1982, she was at Pete’s Store (Pete’s), a video game room located at 3836 West Chicago Avenue. After leaving Pete’s, she walked across the street to a store to buy some popcorn. Defendant, who was with a man known to the witness only as Anthony, spoke to her as she crossed the street. Defendant again spoke to her after she left the store but she did not know what he had said. As she crossed the street, defendant approached her. He was alone. He asked her to go with him, saying he would give her some money if she did so. Complainant replied that she would not go with him. Defendant again asked her to go with him and complainant again refused. At this point, defendant grabbed her right arm tightly, told her to walk with him and not to run, or he would kill her. He then forcibly walked the complainant to a nearby apartment building near the intersection of Chicago and Avers avenues. When defendant opened the door of the building, a woman later identified as defendant’s mother, Willie Mae Daniels, was standing inside. Complainant started to tell defendant’s mother that defendant had forced her there, but defendant pulled her down the stairs into the basement before she could finish.

Once they were in the basement, defendant took her into a small room which looked like a bedroom. He threw two $5 bills in her face. She let them fall to the floor. Defendant told her he would “get his money back and some pussy too.” He then ordered her to take her clothes off. When she refused, defendant again threatened to kill her. Defendant removed his belt, holding the buckle in his hands as if preparing to strike complainant with it. Once more he told her to take her clothes off and once more she refused. Defendant choked her, telling her, “Get in bed. You are going to give me some.” He then told her she could not leave until she gave him what he wanted. He choked her a second time and threw her on the bed. After throwing her on the bed, defendant touched her thighs and ripped her sweat shirt while trying to pull it up. Complainant screamed. A man later stipulated to be defendant’s brother, David Daniels, came downstairs and told the defendant to stop what he was doing, to which defendant replied that it was none of his business. The two men argued, and Daniels allowed complainant to leave. On her way out, she threatened to call the police. Defendant’s mother then attempted to pull her back into the apartment, but Daniels told her to let go of complainant and that defendant deserved it if the police were called. Complainant then ran to Pete’s and told the owner, Pete Nichols, that defendant had tried to rape her. She telephoned the police, who arrived a short time later.

Complainant further testified that one evening a few days later, defendant’s mother and an older man approached her two or three times offering her $15 or $20 to drop the charges against the defendant. Initially she refused. Defendant’s mother then asked her to write a note stating that she would not press charges. Because the two had been following her that evening frightening her, complainant agreed to write the note but did not accept the money that was offered.

During cross-examination, complainant testified that she did not know the defendant but had seen him in the area. In contrast to an earlier statement that defendant spoke to her before she entered the store to buy popcorn, complainant stated that defendant spoke with her after she left the store. She did not want to go with the defendant but did not scream or tell anyone that she was being forced off of the street. After defendant had taken her to the basement, she screamed when he choked her. She did not scream again after he stopped choking her because she was afraid he would hit her with the belt buckle he was holding. Defendant, however, did not strike her with the belt buckle. Later, she noticed that her neck was swollen.

Complainant further testified on cross-examination that defendant never tried to remove her pants or any undergarments. When questioned regarding an earlier statement given at a preliminary hearing that she was in the building from 10 p.m. until shortly after 11 p.m., complainant stated that she was unable to recall how long she had been in the apartment. The witness denied agreeing to have sex with the defendant for $10 and that defendant could not complete the act and wanted his money back. Complainant denied that she gave defendant $5 back, that he took the other $5, and that she became angry over this. She further denied that she told defendant’s mother that nothing had happened. Although she was not threatened into signing the note, complainant signed it because she was scared. Complainant had never had sexual relations with the defendant, and had never taken any money from him.

On redirect examination, complainant testified that she left Pete’s at 10 p.m. and that when the police arrived it was around 11:30 p.m. Defendant’s age was stipulated to be 27 years.

Pete Nichols, the owner of Pete’s Store, testified that at 11:30 p.m. on October 18, 1982, the complainant entered his store looking hysterical and as though she was about to cry. She asked him if she could use the phone. When he asked what had happened, she told him that defendant had tried to rape her. Nichols stated he had known complainant for three or four years and that her reputation in the community was good. His nephew is complainant’s boyfriend. On cross-examination, the witness stated that complainant frequents his game room at least four times a week. She stays until 10 p.m., when he requests that his younger patrons leave.

Ronald Smith, testifying on defendant’s behalf, stated that he owns Ron’s Liquors at 3846 West Chicago Avenue. He observed the complainant, defendant’s mother and brother, Roy Stevenson, together in his bar in October of 1982. Defendant’s mother asked him to change a $20 bill. After receiving her change, she gave complainant some money. Smith did not hear any conversation. The three then left the bar. Smith is not related to any of the three but has seen all of them in the area. Complainant often stops in to buy potato chips and pop.

On cross-examination, Smith testified that he has known defendant’s mother for 10 years and likes and respects her. Stevenson frequents his tavern almost daily. Last year, he barred the defendant from his tavern.

Anthony French, a good friend of the defendant, stated that he was with the defendant all day on October 18, 1982. He and the defendant saw the complainant before she went into the store to buy popcorn. She asked them to wait for her. Ten minutes later she came out of the store, and they all walked back to the apartment building where both defendant and French reside. French opened his apartment door on the second floor so that complainant could use the washroom. They then went to defendant’s apartment on the first floor. Defendant’s mother and brother were present in the apartment at the time. Complainant, defendant, and French then went into the basement. While the witness was drinking beer in one room of the basement, defendant and complainant were in another room. He mistakenly walked into this other room and saw defendant and complainant unclothed in bed together. He testified that the two were having sex for about one-half hour. At this point, defendant’s brother, David, came downstairs. Complainant then became angry and left because defendant took $5 back from her. On December 6, French saw complainant at Pete’s. She told him that she had torn her own sweat shirt. French stated on cross-examination that he knows the whole Daniels family and goes drinking with the defendant.

David Daniels, defendant’s brother, testified that around 10 or 10:30 p.m. he was in the basement of his family’s apartment. When complainant, defendant, and French arrived, he went upstairs. A short time later he returned to the basement and saw complainant and defendant unclothed in bed having sex. Daniels neither saw defendant choke or hit complainant nor heard her scream. He watched her dress and walked her upstairs to let her out of the building. On the way out she told the witness she was planning to call the police because defendant had taken his money back from her. Daniels testified that Pete’s Store was a “whorehouse” and that he had had sex with the complainant for money prior to October 18,1982.

Defendant’s mother, Willie Mae Daniels, testified that on the night in question she answered the door and found complainant, defendant, and Anthony French standing outside the door. As she entered the apartment, complainant in no way indicated that the defendant was forcing her into the basement. Defendant was not holding onto her arm or hand. Complainant went into the washroom first and then down to the basement. Her son David came upstairs when the three went into the basement. Later, the witness heard someone holler, went into the basement and observed the complainant yelling that she was going to call the police. The next evening the witness and her son Roy tried to locate the complainant to find out why she intended to contact the police. When they encountered the complainant at Pete’s, complainant told the witness that defendant owed her $15. The three walked to Ron Smith’s tavern, where complainant told the witness she did not want defendant arrested and voluntarily signed a note indicating that she would not press charges. Defendant’s mother then paid complainant the $15 defendant owed her.

Roy Stevenson, defendant’s oldest brother, testified that on October 19, 1982, he and his mother went to Pete’s to talk with the complainant. When they arrived at Pete’s, his mother asked him to go inside and tell complainant she wanted to speak with her. He did so and complainant asked him to wait for her outside. About five minutes later, complainant came out of Pete’s. When his mother asked about the incident of the previous evening, complainant replied that defendant owed her $15. They walked to Ron Smith’s tavern, where his mother changed a $20 bill. She asked complainant to sign a note, which complainant did. After his mother gave complainant $15, they left. After hearing all the evidence, the trial court found defendant guilty of attempted rape and unlawful restraint, sentencing defendant to five years in prison. Defendant appeals.

Opinion

The only issue presented is defendant’s contention that he was not proved guilty of attempted rape beyond a reasonable doubt because complainant’s testimony was not clear and convincing. In a bench trial, the credibility of the witnesses and the weight to be given their testimony is for the determination of the trial court. (People v. Novotny (1968), 41 Ill. 2d 401, 411-12, 244 N.E.2d 182.) A court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) Accordingly, the trial court’s finding will not be disturbed unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. People v. Catlett (1971), 48 Ill. 2d 56, 64, 268 N.E.2d 378; People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182.

Defendant argues that complainant’s testimony was not clear and convincing because she failed to cry out when defendant led her down the street, when she spoke with defendant’s mother at the front door, and when she was in the house with defendant and others, and because of inconsistencies in her testimony regarding the length of time she was in the apartment building. In a prosecution for rape, the testimony of the complaining witness must be clear and convincing or corroborated by some other facts or evidence. (People v. Robinson (1978), 67 Ill. App. 3d 539, 545, 384 N.E.2d 962; People v. Anderson (1974), 20 Ill. App. 3d 840, 848, 314 N.E.2d 651.) The significance of a victim’s failure to scream or cry out depends on the totality of facts and circumstances of the case. (People v. Pointer (1972), 6 Ill. App. 3d 113, 118, 285 N.E.2d 171.) For example, under circumstances where resistance would be futile and would endanger the victim’s life, a victim need not resist. (People v. Smith (1965), 32 Ill. 2d 88, 92, 203 N.E.2d 879.) Resistance is also unnecessary where the victim is overcome by the superior strength of the assailant or is paralyzed by fear. (People v. Smith (1965), 32 Ill. 2d 88, 92, 203 N.E.2d 879.) A child might be expected to put forth less resistance than an adult. People v. Pointer (1972), 6 Ill. App. 3d 113, 118, 285 N.E.2d 171.

We do not agree that complainant’s testimony was not clear and convincing because she failed to cry out. In fact, the evidence indicates that she did scream. The complainant testified that when the defendant approached her and grabbed her by the arm, he threatened to kill her. He then forcibly walked her to his nearby apartment building. It should be noted that by defense counsel’s own admission, the defendant, a 27-year-old male, was much larger than the 16-year-old complainant and was capable of doing almost anything to her. Once they arrived at the apartment building, the complainant started to cry out to the defendant’s mother but was unable to finish because the defendant immediately forced her into the basement. While they were in the basement, defendant again threatened to kill her and while choking her for a second time, complainant screamed. Apparently, she ceased screaming only because of her fear that defendant would hit her with the belt buckle he held over her. Defendant’s mother also heard complainant screaming and hollering from the basement that she was going to call the police.

A factual situation similar to the instant case was presented in People v. Sprouse (1981), 94 Ill. App. 3d 665, 418 N.E.2d 1070. The complainant, an 11-year-old girl, was sitting on the couch at a friend’s home watching television. Defendant was staying at the house. While she sat on the couch, defendant grabbed the victim’s feet and put her on his lap. As he carried her into the bedroom, she screamed and hollered. Defendant threatened to kill her, started to fondle her, and attempted to have intercourse with her. The defendant argued that the complainant’s testimony that she screamed during the attack was not credible because it was inconsistent with the testimony of other witnesses. This court, however, held that even assuming that the victim had not cried out, that fact did not raise a reasonable doubt of the defendant’s guilt under the' circumstances, particularly the defendant’s threat on the victim’s life and the size of the defendant in relation to the size of the complainant. 94 Ill. App. 3d 665, 672, 418 N.E.2d 1070.

Under the present circumstances, the trial court could reasonably have concluded that the complainant offered resistance and that further resistance was unnecessary in light of defendant’s threats to strike her and to kill her and his superior physical ability to carry out those threats.

We regard defendant’s argument that complainant’s testimony was not clear and convincing because of inconsistencies in her testimony relative to the length of time she was in the building as similarly unpersuasive. Clear and convincing evidence is not synonymous with uncontradicted or unimpeached testimony. (People v. Thompson (1978), 57 Ill. App. 3d 134, 140, 372 N.E.2d 1052.) Minor inconsistencies in a complainant’s testimony do not constitute grounds for reversal. (See People v. Wright (1972), 3 Ill. App. 3d 829, 833, 279 N.E.2d 398.) Any discrepancies in a complainant’s testimony only affect her credibility. (People v. Wright (1972), 3 Ill. App. 3d 829, 833, 279 N.E.2d 398.) In arriving at its decision, the trier of fact must weigh any discrepancies in light of all other testimony presented. (People v. Wright (1972), 3 Ill. App. 3d 829, 833, 279 N.E.2d 398.) Where the victim’s story is consistent and such discrepancies do not detract from its reasonableness, her testimony may be found clear and convincing. People v. Thomas (1960), 18 Ill. 2d 439, 442-43, 164 N.E.2d 36.

The record reveals that the trial court found complainant’s testimony very straightforward and credible. We do not think that this discrepancy rendered complainant’s version of the incident less reasonable. After having carefully reviewed the record, we agree that complainant’s testimony was clear and convincing and find that defendant was proved guilty of attempted rape beyond a reasonable doubt.

For the reasons stated, defendant’s conviction is affirmed.

Affirmed.

SULLIVAN, J., concurs.

JUSTICE PINCHAM,

dissenting:

There was no attempted rape in this case. There was no unlawful restraint in this case. I therefore dissent.

I do not question the legal principles on which the majority relies in affirming the instant convictions, i.e., “In a bench trial, the credibility of the witnesses and the weight to be given their testimony is for the determination of the trial court. [Citation.] A court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. [Citation.] Accordingly, the trial court’s finding will not be disturbed unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. [Citation.] ***. The significance of a victim’s failure to scream or cry out depends on the totality of facts and circumstances of the case. [Citation.] *** [U]nder circumstances where resistance would be futile and would endanger the victim’s life, a victim need not resist. [Citation.] Resistance is also unnecessary where the victim is overcome by the superior strength of the assailant or is paralyzed by fear. [Citation.] A child might be expected to put forth less resistance than an adult. [Citation.]” But these legal principles are designed to promote, not defeat, justice. These legal principles must not be hatches out of which an unjust judgment of conviction escapes reversal.

Certainly, in a bench trial, the credibility of the witnesses and the weight to be given their testimony is for the determination of the trial court, and certainly, a court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. But these principles do not indelibly chisel the findings of fact of a trial judge or jury in granite, never to be erased or reversed on appellate review. In fact, the law is to the contrary. In People v. Brown (1968), 99 Ill. App. 2d 281, 288, 241 N.E.2d 653, this court held:

“Because of the nature of the crime, reviewing courts are charged with an extraordinarily high standard of care in examining the evidence in a rape case. [Citations.] When the charge is denied and the conviction depends upon the testimony of the complaining witness, it must be corroborated by evidence of other facts and circumstances unless her testimony is clear and convincing. [Citations.] *** [Application of the principles set forth above requires that the evidence be subjected to close scru tiny. [Citation.]” (Emphasis added.)

Additionally, in People v. Taylor (1971), 48 Ill. 2d 91, 98, 268 N.E.2d 865, where the defendant was convicted of rape, our supreme court stated:

“As summarized in People v. Faulisi, 25 Ill. 2d 457, we have held that reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove aU reasonable doubt of the defendant’s guilt and to create an abiding conviction that he is guilty of the crime charged.” (Emphasis added.) 48 Ill. 2d 91, 98.

In Taylor, as in the case at bar, the complainant was 16 years of age. Also in Taylor, as in the case at bar, the defendant was considerably older than the complainant. In Taylor, the defendant was 30 years of age and in the case at bar the defendant is 27 years of age. In Taylor, as in the case at bar, the defense to the rape charge was consent. It is to be noted that consent was the defense to the allegations of rape in People v. Szybeko (1962), 24 Ill. 2d 335, 181 N.E.2d 176, People v. Symons (1961), 23 Ill. 2d 126, 177 N.E.2d 185, People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273, People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651, People v. Keeney (1973), 10 Ill. App. 3d 296, 293 N.E.2d 492, and People v. Bain (1972), 5 Ill. App. 3d 632, 283 N.E.2d 701. In each of these cases the reviewing court duteously executed its responsibility to carefully examine the evidence and thereupon reversed the rape convictions because the evidence failed to “remove all reasonable doubt and create an abiding conviction that the defendant [was] guilty of the crime alleged.”

In the case at bar, the defendant was charged with and convicted of attempted rape and unlawful restraint. On appeal, he urges for reversal that the evidence failed to establish beyond a reasonable doubt that the act of attempted sexual intercourse was by force and against the complainant’s will.

The defendant further contends that he not only attempted to have sexual intercourse with the complainant, but that he in fact did so, but with her consent. A mere cursory review of the brief, 136-page trial transcript of the testimony of the witnesses clearly reveals that the offenses were not established beyond a reasonable doubt and that the evidence miserably fails to create an abiding conviction that the defendant is guilty of the crimes charged. To the contrary, the evidence unquestionably establishes, indeed, beyond a reasonable doubt, that there was no attempted rape or unlawful restraint. In addition, the record in this case establishes beyond any reasonable doubt that the defendant’s conduct of which complaint is made arose out of the defendant’s reneging on a volunteered pecuniary sexual agreement between the complainant and the defendant.

This court’s review is not confined to just designated portions of the trial record. This court is charged with the duty to “carefully examine” the entire record, which, in this case, reveals that this 16-year-old complainant, on October 18, 1982, the date of the incident, lived at 4330 West Monroe in Chicago. At 10 p.m. that evening she was in Pete’s Store at 3836 West Chicago Avenue. Pete Nichols, the owner of this business, testified that the business was called Blue Diamond Heating, Fuel & Oil, that his “major occupation” was the heating business, installation and repair, and that in conjunction with the place where he had his heating business he also had a “game room, video games, Cen-terpedes, Jaws and two Miss Pacman’s.”

The record does not reveal the distance from the complainant’s home at 4330 West Monroe to Pete’s Store at 3836 West Chicago Avenue. However, this court is authorized to take judicial notice that this distance is at least 14 blocks. (See People v. Fain (1976), 41 Ill. App. 3d 872, 876, 355 N.E.2d 61, where the reviewing court stated that it could take judicial notice of the fact that all of the events referred to in the record took place within approximately 21k city blocks.) While no question is raised about this 16-year-old complainant’s right to be 14 blocks from home at 10 p.m., the testimony of the defense witnesses certainly presents a viable question about her purpose for being where she was.

Although the complainant testified that she was the girlfriend of Nichols’ nephew, there is no evidence in the record that she visited Pete’s Store to meet or be with his nephew, or that the nephew was, or had ever been, at Pete’s Store. More importantly, the complainant testified that she was alone at Pete’s Store at 10 p.m. It is to be noted that David Daniels, a defense witness, testified that he knew Nichols and that “he [Nichols] runs a whorehouse” and that “all the young ladies that hang out in his [Nichols’] places, men that want to obtain some sexual intercourse they go there.” Daniels also testified that he had engaged in sex with the complainant “for money.”

The complainant emphatically denied that she was a prostitute and denied further that her actions were prompted by a pecuniary sex agreement with the defendant. Nevertheless, her other testimonial admissions clearly impeach her denials.

The complainant testified that she left Pete’s Store at about 10 p.m., went across the street for popcorn, and that while en route she saw the defendant, “Elias,” whom she knew by name. She stated that the defendant “had a friend standing with him,” whom she knew as Anthony (Anthony French). As hereafter pointed out, it is quite significant that the complainant placed French at this scene, and that defense witness French corroborated this testimony. The complainant also testified that she did not understand what the defendant said in French’s presence to her as she was crossing the street to purchase the popcorn, but that after she made her purchase and left the store, the defendant came over to her. The complainant stated that the defendant was alone at that time because French had “gone the other way.” The complainant testified that the defendant then told her to “come and go with him, that he would give me some money,” and that she said no. Again, it is significant that the complainant testified that the defendant offered her money. A review of case law reveals that it is exceedingly uncommon for an offender bent on rape to offer his potential rape victim monetary compensation.

The complainant testified that when she twice rejected the defendant’s dual offers to “go with him for money,” the defendant grabbed her arm and told her “to walk with him, don’t try to ran” or he would kill her. She walked with the defendant around the corner to a two-apartment building. The evidence established that the defendant resided in one of the apartments with his mother, brothers, nephews and nieces. Remarkably, Anthony French lived there also!

The complainant further testified that the defendant, unarmed, with force and against her will, compelled her to walk down Chicago Avenue and then down Avers Avenue to his home. The complainant demonstrated to the trial court how.the defendant held her by her arm en route to his home, but the record does not reveal whether the defendant had an ursine grip while dragging her, as she protested, along these public thoroughfares.

Anthony French, whom the complainant placed at the scene where she was allegedly accosted by the defendant, testified that at the defendant’s request, after the complainant entered the popcorn store, he loaned the defendant $5. When the complainant left the store, French accompanied the complainant and the defendant to the defendant’s home at 820 North Avers. French said that he lived on the second floor, and that the defendant and his family lived on the first floor and basement. According to French, while en route the defendant did nothing to the complainant.

It is the testimony of this complainant that the defendant, whom she knew by name, after twice offering her money for sex, which she rejected, while unarmed, with force and against her will, compelled her to accompany him down public streets in Chicago to his home, where he resided with his mother, brothers, nephews and nieces, to rape her.

The reviewing court aptly stated in People v. Taylor (1971), 48 Ill. 2d 91, 98, 268 N.E.2d 865, that “[T]he degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case.” In People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651, the rape complainant testified that she was near the intersection of Wells and Goethe streets in Chicago when the defendant, whom she did not know, approached her from the rear, placed a hard object against her side, told her he had a gun and would shoot her, placed his hand over her mouth, choked her and forced her across the intersection and into an abandoned building where he raped her. Like the defendant in Anderson, the defendant in the case at bar readily admitted the act of intercourse but contended that it was with the complainant’s consent. In reversing the trial court’s guilty finding of rape, this court pointed out:

“In the case before us, complainant testified that after she was first accosted by defendant he forced her across the intersection of Wells and Goethe Streets while holding his hand over her mouth to keep her from crying out. On cross-examination she testified that she made no outcry at that time because she was afraid of his gun, and not because he held his hand over her mouth. It is doubtful that an attacker could brazenly accost a victim in broad daylight, then successfully spirit that victim across an admittedly busy street in a forcible manner without attracting the attention or intervention of anyone. It is also incongruous that complainant would refrain from making an outcry because of fear of defendant’s gun, but would not refrain from engaging in a veritable wrestling match such as she described as occurring between herself and defendant before they entered the apartment building. Further, she stated that during the time she was being forced across the intersection she saw that defendant no longer had anything in his hands but, inexplicably, she did not cry out for assistance.” (Emphasis added.) 20 Ill. App. 3d 840, 848-49.

In Anderson, the street encounter was between strangers. In the case at bar, the encounter was between acquaintances. In Anderson, the complainant testified that the initial encounter was stealthy and threatening. In the case at bar, the complainant testified that the initial encounter was the defendant’s overture of money for sex. In Anderson, the encounter was in daylight. In the case at bar it was at night. In Anderson, the evidence established that the encounter occurred on a “busy street.” In the case at bar, the evidence is silent on the volume of pedestrians or vehicular traffic. In Anderson, the complainant contended that the defendant proclaimed, and his conduct indicated, that he was armed with a gun. In the case at bar, the complainant did not suggest that the defendant was armed, or that he proclaimed or pretended to be or that she thought that he was. In Anderson, the victim contended that the defendant forcibly took her to an abandoned building for an act of sexual intercourse. In the case at bar, the victim contended that the defendant forcibly took her to the defendant’s home for an act of sexual intercourse. In Anderson, and in the case at bar, neither victim while en route made an outcry of protestation or a vociferation for assistance.

As stated in the case at bar, the complainant placed French at the scene of her initial encounter with the defendant. She testified that she did not thereafter see French. French testified, however, that he loaned the defendant $5 and accompanied the defendant and the complainant from their initial point of encounter in front of Pete’s Store at 3836 West Chicago Avenue to his home at 820 North Avers, where the defendant, his mother, siblings, nephews and nieces lived on the first floor and basement. Of course it was the trial court’s province to resolve this testimonial conflict.

There was no conflict, however, between the testimony of the complainant, French, and the defendant’s mother, Willie Mae Daniels, regarding the complainant’s arrival and entry at the defendant’s home. The complainant testified that upon their arrival the defendant opened the door. The evidence does not disclose how or whether the defendant held her or what resistance, if any, the complainant exerted as the defendant opened the door. The complainant, French, and the defendant’s mother testified that when the door opened, the defendant’s mother was standing inside. The complainant testified on direct-examination:

“Q. When you first got to the apartment on Avers, what happened?
A. Well, he opened up the door.
Q. Who opened the door?
A. Elias.
Q. When he opened the door, what happened?
A. There was a lady standing there. *** I guess it was his mother.
Q. And what happened to you when he opened the door?
A. I was still standing there.
* * *
Q. Then what happened?
A. Then I started to say to her that he was taking me some — trying to force me some way. He pulled me down the stairs in the basement.
Q. Did the lady say anything to you when you tried to tell her this?
A. No.”

This testimony is patently insidious. From this testimony, the case before us is one in which the defendant forcibly took an acquaintance down public streets to his home to rape her, literally in the presence of his mother, whom the complainant testified she knew by name. The complainant testified that the defendant took her downstairs to the basement before she could protest to the defendant’s mother. This is ludicrous. This absurd testimony is not enhanced by this court’s statement that “[t]he complainant started to cry out to the defendant’s mother but was unable to finish because the defendant immediately forced her into the basement.”

It is the complainant’s testimony that she did not utter one word either to the defendant’s mother or otherwise as she entered the apartment building and, ultimately, the basement of the building. More importantly, the State’s evidence completely fails to establish any plausible explanation for her failure to cry out to the defendant’s mother, except that she was there, freely and voluntarily, as the defendant contended, to ply her trade.

In People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651, the complainant testified that as the defendant forced her into the abandoned building, he conversed with a man who was standing at the entrance. The complainant in Anderson testified further that she observed another man in the abandoned building during the time when the defendant repeatedly raped her. She stated that she did not make an outcry to either man because they were black, as was the defendant, that they seemed to have known the defendant, and because she believed that neither man would help her. As fallacious as this explanation is, it is far more plausible than the complainant’s explanation in the instant case for her failure to make an outcry or protestation to the defendant’s mother, whom she knew.

In Anderson, this court resoundingly repudiated the complainant’s unorthodox explanation for not lamenting her predicament to the two men whom she saw. We stated in Anderson, “[The] complainant had sufficient control over her faculties and physical powers to request assistance from those individuals, yet did not do so. Justification for failing to make an outcry to a potential intervenor because that person was of the same race as the attacker was rejected in People v. Qualls (1961), 21 Ill. 2d 252, 171 N.E.2d 612.” 20 Ill. App. 3d 840, 849.

The complainant’s heretical reason in the case at bar for not crying out to the defendant’s mother should be just as emphatically rejected. As this court further stated in Anderson, “The failure to exercise an opportunity to escape or summon assistance was a significant factor in the reversal of [rape] judgments of guilty in both Taylor and Qualls ***.” (Emphasis added.) People v. Anderson (1974), 20 Ill. App. 3d 840, 849, 314 N.E.2d 651.

And as this court pointed out in People v. Rosario (1982), 110 Ill. App. 3d 1020, 1024, 443 N.E.2d 273 (citing People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865, where the Illinois Supreme Court reversed the rape conviction), “In both cases, the complainants never mentioned that they cried out or protested or made any efforts to attract attention of others to their alleged predicaments ***.” (Emphasis added.) This court’s reasoning in Rosario and Anderson should also be applied to the instant case.

Money for sex is the common thread throughout the complainant’s testimony — from the defendant’s initial street encounter to the basement of the defendant’s home. The complainant testified that upon entering a bedroom in the defendant’s basement, the defendant threw some money in her face, two $5 bills, that she let them fall to the floor, and that the defendant then said that he “would get his money back and some pussy too.” It is nothing less than preposterous that the defendant would force the complainant past his mother to a bedroom in his home, throw the complainant $10, which she refused, and then say to her that he would “get his money back and some pussy too.”

The complainant testified further that she refused the defendant’s demand to disrobe, that the defendant took off his belt “and had it with the buckle end like he was fixing to hit me with it,” that the defendant choked her, felt her thighs, tried to pull her blouse up and slightly ripped it, that the defendant did not attempt to pull off any of her garments, and that the defendant did not strike her at any time.

David Daniels, the defendant’s brother, testified that he was in the basement, lying in a bed, when the complainant, whom he knew by name, and the defendant arrived. Daniels got up and went upstairs. When he returned, he observed that the complainant had disrobed. He thereafter saw the complainant get dressed. Anthony French testified that he went into a room in the basement, and that later while looking for a match, he mistakenly entered the bedroom and saw that the complainant and the defendant were nude in bed and engaged in sexual intercourse.

The complainant testified that she resisted the defendant’s lupine sexual impulses. But the testimony of French and Daniels confirmed that she did not resist and that her sexual participation was consensual. It was the duty of the trial judge to resolve this evidentiary conflict. In so doing, however, he was obligated to exercise rational judgment and reasoning, and to consider other evidence in the case, such as Daniels’ testimony that after witnessing the complainant put her clothes back on, he “took her upstairs and let her out the door.” Daniels testified further:

“Q. Why did you take her upstairs?
A. Because they had finished doing what they wanted to do, and he had took — she had some money. He had some money that he had got back from her. So, after they finished, I personally walked upstairs and took her to the front door.
Q. Did she say anything to you?
A. She said that she was going to call the police.
Q. Did she say why?
A. Because he took his money back from her.” (Emphasis added.)

French testified that after mistakenly walking into the bedroom in which the complainant and defendant were nude in bed, engaged in sex, he left the room. He testified further:

“Q. How long were they having sex in that room?
A. Well, I know I was out of the room for awhile. So, I was— I would say about twenty or thirty minutes.
Q. All right, did anything happen?
A. The only thing I know, you know, his brother, David, had come downstairs.
* * *
Q. And then what happened?
A. So, she got mad. She left there, because he had took his money back, his five dollars back.
Q. Who had taken his money back?
A. Elijah.”

Willie Mae Daniels, defendant’s mother, testified that on the day of the incident, at about 10 or 10:30 p.m., French and the complainant came to her home at 820 North Avers, that the complainant, whom she knew by name, had been to her home several times previously, that at the complainant’s request she gave her permission to use the washroom, and that when the complainant came out of the washroom, the complainant, defendant and French went to the basement. Mrs. Daniels testified further:

“Q. How long were they down in the basement, if you know?
A. Well, I just can’t recall, ***. So, we went down there, and when I heard the noise, whoever hollered. And then I went down there. She was standing there with her clothes on, and Elijah had his clothes on, and Anthony French was standing up there too. She was hollering.
Q. She just hollered down there?
A. ‘I’m going to get the police.’ That’s all she was saying. She had her clothes on. The State’s Attorney called me that night on the phone and asked me did she have their clothes on or off. I said that they had their clothes on, which they did.”

The fact that the defendant’s brother, mother and French readily admitted that the complainant made vociferous protestations and threats to call the police as she departed enhances the credibility of their testimony. The complainant corroborates their testimony. She testified that because of her protestations to the defendant, the defendant’s brother, David Daniels, came downstairs and that as she departed, she said she was going to call the police. The complainant also stated that the defendant’s mother tried to pull her back, that David told Mrs. Daniels to let her go, and that if she called the police “he deserved it.”

Did the complainant depart to call the police because the defendant attempted to have sex with her by force and against her will, or did she depart to call the police out of her revenge instigated by the defendant’s reneging on his promise to compensate her for an act of sexual intercourse, as David Daniels and French testified? From the totality of the evidence, the complainant departed to make an invidious call to the police out of revenge and not because she was a criminal sex victim.

Mrs. Daniels and her eldest son, Roy Stevenson, testified that on the following day they sought and found the complainant at Pete’s Store and that in response to their inquiry as to why the complainant wanted to call the police, the complainant exclaimed that it was because the defendant owed her $15. Mrs. Daniels, Stevenson and the complainant then went from Pete’s Store to Ron Smith’s tavern, where the proprietor, Ronald A. Smith, changed a $20 bill for Mrs. Daniels. Mrs. Daniels gave the complainant the $15 the complainant claimed the defendant owed her. The complainant then signed a note that she “didn’t want to have anything to do with it anymore.”

Smith corroborated Mrs. Daniels’ and Stevenson’s testimony that Mrs. Daniels gave the complainant $15. Smith also testified that “*** Mrs. Daniels came up to the bar and asked me to change a twenty dollar bill for her. I changed the twenty dollar bill for her, and then she walked over to the phone where Roy [Stevenson] and [the complainant] were standing, and she handed [the complainant] the money. *** The three of them walked out the door.”

The complainant’s testimony persuasively corroborated Mrs. Daniels’, Stevenson’s and Smith’s testimony that the complainant was given $15. The complainant initially denied that she was ever in Ron Smith’s tavern with the defendant’s mother. She later admitted, however, that she was there. The offer of money permeated even this aspect of her testimony. The complainant testified that Mrs. Daniels offered her “$15 or $20 to drop the charges,” and that she told Mrs. Daniels no. Apparently, because this complainant knew that Mrs. Daniels had the note that the complainant had written, the complainant admitted that she wrote it, but said that she did so because she was afraid, even though no one threatened or even talked “nastily” to her.

First, if Mrs. Daniels offered the complainant $15 or $20 to drop the charges, this conduct constituted an attempt to bribe a witness, a criminal offense, on which the prosecuting authorities took absolutely no action. Ill. Rev. Stat. 1981, ch. 38, par. 32 — 4(b).

Second, a $15 or $20 offer to “drop” an attempted rape and unlawful restraint charge would appear to be quite meager. Surely the amount would have been substantially larger if offered to bribe her not to testify.

Third, the $15 or $20 amount that the complainant contends was offered her by the defendant’s mother is extraordinarily compatible with that amount the defendant contended was in controversy between him and the complainant.

Fourth, it would appear that there was no credible reason for Mrs. Daniels, Stevenson and Smith to testify that the complainant accepted the $15 and wrote the note if in fact the complainant rejected the money and wrote the note because she was afraid. Conversely, there is a viable motive for the complainant to deny accepting the $15 — an admission by her would have corroborated the witness’ testimony that her controversy with the defendant was over a debt for sex.

The complainant fulfilled her departing threat to the Daniels to call the police. She testified that she went to Pete’s and called the police, who “came quick.” Pete Nichols testified that at approximately 11:30 p.m. the complainant entered his store and asked to use his phone, that he asked the complainant what happened, and that she told him that the defendant had tried to rape her.

This 11:30 p.m. hour that Nichols and the complainant testified that the complainant called the police is extremely momentous. The complainant testified that at 10 p.m. the defendant accosted her on Chicago Avenue and walked her around the corner, to his home. Her version of the evening could not have consumed an hour and a half, to 11:30 p.m., when she called the police. She testified on redirect examination:

“Q. How long did this entire incident happen from the time that the defendant first grabbed your arm and had you go with him until you had run back to Pete’s Place? About what time did you say that occurred?
A. When I left out of Pete’s at exactly ten, and when I got back, it was when the police arrived. It was about 11:30.”

The hour and a half the complainant admitted spending with the defendant and the 11:30 p.m. hour she admitted calling the police are in greater accord with the defendant’s corroborated evidence of consensual sex than the complainant’s uncorroborated testimony of attempted forceful sex. The complainant’s testimony lacks verisimilitude. It is not persuasive and convincing. It is uncorroborated and fails to create an abiding conviction of the defendant’s guilt.

The complainant’s statement to Nichols and her telephone call to the police do not corroborate her testimony of attempted rape any more than they corroborate the defendant’s evidence of agreed sex for money and the complainant’s reprisal because of the defendant’s partial payment.

In People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651, the complainant testified that after the defendant raped her, she immediately departed from the abandoned building where the act occurred. The complainant said that she then saw two police officers, whom she promptly informed that she had been raped, and that she was taken to a hospital where she was'given a medical examination. This court was unpersuaded by this testimony and held, “We do not find in the record sufficient independent evidence in corroboration to afford a basis for sustaining the judgment of guilty on the charge of rape,” and that “[ajfter the careful scrutiny of the State’s evidence which is required of a reviewing court, we hold that evidence insufficient to remove all reasonable doubt and to create an abiding conviction that the alleged acts of intercourse engaged in by complainant and defendant were performed by force and against her will.” 20 Ill. App. 3d 840, 849-50.

In People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273, when the defendant took the 12-year-old complainant home she immediately protested to her brothers that the defendant had raped her. This court rejected the complainant’s prompt outcry as corroborative of rape, stating, “The immediate complaint may be accounted for by the complainant’s need to explain her late return.” (110 Ill. App. 3d 1020, 1025.) In the case at bar, the complainant’s immediate complaint is accounted for by her anger. It, too, should therefore be rejected as corroborative of attempted rape.

Our supreme court reversed the robbery and rape convictions in People v. Rossililli (1962), 24 Ill. 2d 341, 181 N.E.2d 114, in which the defense was consent. The language of the court in Rossililli is most applicable to the case at bar:

“Our duty in reviewing the record of judgment of conviction in a criminal case was stated in People v. Dougard, 16 Ill. 2d 603, where it was said, page 607. ‘We have consistently held in many cases over a long period of years that in criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, or if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed. It is the duty of this court to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt if that reasonably may be done, and where the entire record leaves us, as this one does, with grave and substantial doubt of the guilt of the defendant, we will not hesitate to reverse the judgment.’ ” 24 Ill. 2d 341, 345-46.

In the instant case, substantial doubt of the defendant’s guilt is further presented because the complainant’s “torn” sweat shirt did not corroborate her testimony. She testified that “it was torn a little bit already, and he pulled it and just ripped [it] some more.” The complainant exhibited the shirt to the trial judge “where it was that [she] said it got torn.” The complainant did not specify where the defendant allegedly tore her shirt. French testified, however, that he talked to the complainant after the incident and that the complainant told him that she was angry, that she went to Pete’s Store, called the police and that she tore her blouse off herself.

In People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273, the complainant’s slacks were admitted into evidence. The belt straps and the corner of the pockets were torn. There was testimony that the complainant’s face was red and swollen, her cuticle was scratched, and that there was a mark on her arm. This court held that this evidence did not elevate the act of sexual intercourse from one of consent to one of force. Similarly, the complainant’s previously ripped sweat shirt in the case at bar does not elevate the act of sexual intercourse from one of consent to one of force either.

Additionally, it is apparent that the trial judge in this case did not properly assess the credibility of the witnesses and that he was improperly influenced by his own impression of matters outside the record in finding the defendant guilty. When rendering his verdict, the trial judge stated:

“Well, what we have here is possibly the oldest defense in the world. There is a sixteen year old victim who is a prostitute. She was mad. She hollered. Well, in this case, attempt rape instead of rape.”

The age of the defendant’s defense or its use throughout the world should not have had any bearing on the trial court’s determination of the credibility of the witnesses or its assessment, acceptance or rejection of the defendant’s defense. For this reason alone, the defendant’s conviction should be reversed.

Next, this court’s reliance on “defense counsel’s admission” that “the defendant, a twenty-seven-year-old male, was much larger than the 16-year-old complainant and was capable of doing almost anything to her,” was also inappropriate. First, this statement was made by defense counsel in his argument to the court in support of his motion for a finding of not guilty at the close of the State’s case on the ground that the State’s evidence failed to establish beyond a reasonable doubt that the defendant had taken a substantial step towards the commission of an attempted rape. Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a).

Second, defense counsel’s argument on behalf of his client cannot be raised to the level of competent evidence to be relied on by the reviewing court to affirm defendant’s conviction on appeal.

Finally, this court’s reliance on People v. Sprouse (1981), 94 Ill. App. 3d 665, 418 N.E.2d 1070, is misplaced. In Sprouse, the defendant admitted pulling the 11-year-old complainant across the bed while she was kicking him. When asked if he attempted “to play with her vaginal area,” the defendant responded, “If it was tipped it was accidently.” Furthermore, in Sprouse the defense to attempted rape was not and could not have been consent because the complainant was only 11 years old and therefore legally incapable of consenting. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(aXl).) Sprouse is factually and legally inapposite to the case at bar.

For the reasons stated, the defendant’s conviction should be reversed.


source: Caselaw Access Project

author: JUSTICE BERLIN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS RYAN et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 83—0017, 83—0159 cons.
    Opinion filed December 28, 1984.
    Steven Clark and Cheryl Berdelle, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and John G. Murphy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BERLIN

delivered the opinion of the court:

Following a joint bench trial in the circuit court of Cook County, defendants, Thomas Ryan and Edward Joseph, were found guilty of delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 56V2, par. 1401) and sentenced to six-year terms of imprisonment. On appeal defendants contend that: (1) the testimony of the State’s crime lab chemist should have been stricken when the State allegedly “failed to refresh the witness’ recollection after she testified that she had no independent recollection” of the tests she performed on the controlled substances; and (2) the State’s alleged failure to establish a chain of custody raises a reasonable doubt that the substance tested was not the same substance obtained from the defendants.

Deputy Cook County Sheriff Thomas Braglia testified: On April 6, 1981, he was assigned to the Northeast Metropolitan Group and, through an informant, met defendant Ryan at the latter’s apartment. Braglia agreed to purchase “quaaludes” from Ryan. On April 10, 1981, Braglia gave Ryan $250 in prerecorded money in exchange for 100 quaaludes.

On April 17, 1981, Braglia called Ryan at his home and stated he wished to purchase some cocaine. On that same day, Braglia accompanied Ryan to the home of Ryan’s drug “source” and there purchased cocaine for $100 in prerecorded money. On May 5, 1981, Braglia again purchased cocaine from Ryan and Ryan’s “source” with $200 in prerecorded money. On May 29, 1981, Braglia purchased two ounces of cocaine from Ryan, defendant Joseph and a third person. Ryan and Joseph were arrested at that time.

Patricia Haloyda testified for the State: She is a forensic chemist and she received from Braglia various sealed packages containing alleged controlled substances with reference to this case. She conducted various tests on each package of substances. One bag contained 100 tablets of methaqualone; the others tested positive for the presence of cocaine. On cross-examination Haloyda testified that she prepared “worksheets” in connection with the tests she performed. These worksheets contained a description of the package, the exhibit number, the weight of the substances and the results of the tests administered. On cross-examination, she admitted that she had no independent recollection of the tests she performed on the substances in the instant case, and that her testimony was based on her “memorization” of the tests and test results from her review of her worksheets prior to trial. Defendants’ attorneys then moved to strike her testimony on the ground that it was based on the memorization of a document not introduced into evidence. The trial court denied the motion.

At the conclusion of the trial, the court found each defendant guilty of the offense charged. After denying their post-trial motions, the court sentenced each defendant to six years’ imprisonment. Ryan then pleaded guilty to three other unlawful delivery charges pending against him, and was sentenced on these charges to two concurrent terms of three years and one concurrent term of two years.

On appeal, defendants first contend that the trial court erred in denying their motion to strike Haloyda’s testimony “where the state failed to refresh the witness’ recollection after the witness stated that she had no independent recollection of her testimony.” They argue that a witness can only testify to “those facts or events within the witness’ recollection and knowledge” and that “refreshing recollection, not memorization, is the only recognized way in which counsel may revive the witness’ power to recall without introducing the memorandum itself into evidence.” The State responds that the court properly denied the defendants’ motion to strike the chemist’s testimony because “she had independent recollection of the laboratory tests” and because the witness testified that “her memory was refreshed after she reviewed the worksheets before trial.”

In our opinion, both parties have mischaracterized the issue presented here. We do not perceive it to involve the procedural question of the manner in which a witness’ memory may be refreshed, but rather one which relates to cross-examination and discovery. The record makes clear that Haloyda did not, while testifying, state that her memory was exhausted or that it required refreshing. Nor was any effort made to refresh her memory while she was on the witness stand. Instead, during cross-examination, she stated that she had reviewed her worksheets prior to trial, and that her testimony was based on the contents of those worksheets. The worksheets were not admitted into evidence.

In a similar case, the Illinois Supreme Court held that opposing counsel is entitled to examine those documents reviewed before trial by the witness:

“Had reference been made by the officer to the captain’s report [which report was reviewed by the witness prior to testifying] during his testimony for purposes of refreshing his recollection, we assume no question could be raised as to the necessity for its exhibition to defense counsel for his examination and use during cross-examination. We see no substantial or logical difference between that situation, and the one where the witness examines the refreshing document prior to stepping into the courtroom. The opportunity for mischief or error is equally present regardless of where or when the inspection of the documents occurs. As Wigmore states: ‘For though there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great.’ (3 Wigmore on Evidence, 3rd ed., sec. 762, p. 111.)” People v. Scott (1963), 29 Ill. 2d 97, 111, 193 N.E.2d 814.

The right of opposing counsel to review the documents relied upon by a witness relates to the defendant’s right to cross-examine adverse witnesses. (People v. Clemons (1979), 72 Ill. App. 3d 860, 391 N.E.2d 128.) Such documents are considered to be a part of the discovery materials to which a defendant is entitled (People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634), and must be produced when so requested by defense counsel. People v. Olson (1978), 59 Ill. App. 3d 643, 375 N.E.2d 533; People v. Hartgraves (1964), 31 Ill. 2d 375, 202 N.E.2d 33.

In the instant case the State did offer to provide to defense counsel for use in cross-examination copies of the worksheets Haloyda reviewed before she testified. Defense counsel did not accept this offer. Under these circumstances we conclude that no error occurred.

Defendants’ second, and final, contention is that the State’s alleged “failure to establish a chain of custody raises a reasonable doubt that the substance tested was not the same substance obtained from the defendants.” They assert that Braglia’s testimony regarding his handling of the two ounces of cocaine after obtaining it from defendants indicates that he “failed to observe sufficient protective measures to assure that the evidence admitted at trial was the same evidence seized from defendants.”

Defendants argue that Braglia’s testimony established that after he seized the evidence from defendants on the evening of May 29, he returned to his office, but that he was unsure whether he sealed the evidence in an envelope that evening or on the morning of the following day. They state that Braglia further testified “that he left his office after depositing the evidence there for an unknown period to talk with the defendants, although he denied this later in his testimony. Further, Braglia disclosed that during an undetermined period of time, in which the evidence remained unsealed and unidentified, approximately 45 people had access to his office.” Defendants conclude that this “careless handling of the evidence” casts doubt on the character of the State’s exhibits as tested by the chemist.

The State responds that the cocaine was properly admitted because Braglia’s testimony was that he “held the cocaine on his person” until turning it over to the crime lab for analysis. They deny that Braglia testified that at any time he left the cocaine in his office.

In our opinion, while Braglia’s testimony was at times confused, he did not state that he had left the evidence in his office; rather, he testified that upon returning to his office he kept the evidence on his person, sealing it either immediately upon his return, or a few hours thereafter. While Braglia stated that at some point he had left his office, he also said that he took the evidence with him.

Since the State has the burden of showing that the substance obtained from the defendants is the same substance which was tested by the chemist, the State is required only to demonstrate a reasonable probability that the exhibit has not been altered in any important aspect. (People v. Stevenson (1980), 90 Ill. App. 3d 903, 413 N.E.2d 1339.) The State must show that reasonably protective measures were taken to ensure that the substance taken from defendants was the same substance tested by the chemist. People v. Oswald (1979), 69 Ill. App. 3d 524, 387 N.E.2d 886.

In establishing the chain of custody, the State is not required to exclude all possibility of tampering but, rather, in the absence of any tangible suggestion of tampering, alteration or substitution, it is sufficient if the State proves a reasonable probability that the article has not been altered. People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688.

We believe the State met its burden in this case. Braglia’s testimony that the evidence was not out of his sight until it was inventoried, if believed, was sufficient foundation for admission of this evidence. The defendants’ speculation of alteration fails to destroy the admissibility of the evidence. People v. Martine (1984), 121 Ill. App. 3d 793, 460 N.E.2d 456.

For the reasons stated herein, defendants’ convictions are affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.

      These defendants were tried jointly with codefendants Andrew Polizzi and Marc Black. Black was found not guilty. Polizzi was found guilty, but his case is not now before us.

      The parties appear to confuse the doctrines of “refreshed recollection” and “past recollection recorded.” In the former situation a witness who testifies that his memory is exhausted is permitted to examine a document in order to refresh his recollection. The manner and means by which a witness’ memory is refreshed is within the discretion of the court. People v. Van Dyk (1976), 40 Ill. App. 3d 275, 352 N.E.2d 327.
      Past recollection recorded allows the introduction into evidence, as an exception to the hearsay rule, of a record prepared or adopted by the witness when the witness testifies that he lacks present independent recollection of the occurrence, and that the record reflected his knowledge of the occurrence at the time it was prepared. See People v. Olson (1978), 59 Ill. App. 3d 643, 375 N.E.2d 533.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL A. KELLEY, Defendant-Appellant.
    Third District
    No. 3-84-0121
    Opinion filed January 8, 1985.

      Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Russell A. Kelley, appeals from a decision of the circuit court of Tazewell County which revoked his probation for the offense of burglary.

The defendant’s conviction for the offense of burglary occurred pursuant to a negotiated plea agreement on August 24, 1983, in which the defendant was placed on 30 months’ probation in return for his guilty plea.

The State sought to revoke the defendant’s probation approximately two months later when it learned that the defendant’s real name was not Russell A. Kelley but Ronnie Louis Taylor and that the defendant had a prior criminal conviction in the State of Florida for burglary which they were not aware of when the negotiated plea and grant of probation occurred.

The basis for the revocation attempt was the alleged commission of the offense of forgery. The State contended the forgery occurred when the defendant acknowledged receipt of the conditions of probation and signed the certificate as Russell A. Kelley instead of Ronnie Louis Taylor. The State argues that the defendant’s use of the alias, Russell A. Kelley, in signing the certificate of probation constituted a violation of his probation on the day, indeed, at the moment, he was placed on probation. Furthermore, the State argues that the certificate of probation itself was a “document capable of defrauding another.” Ill. Rev. Stat. 1983, ch. 38, par. 17 — 3(a).

We believe this novel and somewhat ingenious argument must fail for several reasons.

First of all, the mere acknowledgment of the receipt of the certificate of probation signed by the defendant was not a document capable of defrauding another within the plain meaning of the Illinois forgery statute. An instrument without apparent legal efficacy or incapable of affecting the rights of another has been repeatedly held to fail as a requisite subject for the offense of forgery. (People v. Kent (1976), 40 Ill. App. 3d 256, 350 N.E.2d 890; Goodman v. People (1907), 228 Ill. 154, 81 N.E. 830; Waterman v. People (1873), 67 Ill. 91.) Since the Illinois forgery statute did not change but merely codified prior Illinois decisions with respect to this offense (Ill. Ann. Stat., ch. 38, par. 17 — 3, Committee Comments, at 281 (Smith-Hurd 1983)), we believe it is not only appropriate, but necessary, to refer to decisions prior to the enactment of the statute to interpret its scope and purpose.

To the extent that the certificate of the conditions of probation affected the rights of anyone, it affected only the rights of the defendant himself. By signing it, albeit' under an assumed name, the defendant acknowledged that he had received it, that he understood the conditions of probation and the consequences of his failure to comply with its terms. The document’s effectiveness was in no way dependent upon the name signed by the defendant. The State’s power and right to seek revocation of the defendant’s probation for a legitimate violation of its terms was and is in no way compromised by the defendant’s use of another name.

Secondly, since the State failed to prove that the defendant’s acknowledgment of the receipt of the certificate of the conditions of probation was made or altered by one person in such a manner that it purported to have been made by another, the requisite proof to establish the commission of the offense of forgery was insufficient. The mere delivery of a document which purports to have been made by the person who in fact made it, regardless of what name the person chose to sign the document, does not establish the crime of forgery. People v. Kollman (1975), 33 Ill. App. 3d 629, 342 N.E.2d 240.

It has often been held that an alias is another name by which a person is known and identified. People v. Grizzel (1943), 382 Ill. 11, 46 N.E.2d 78; John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105.

Where a document has therefore been signed by a person using his own alias, he has not made. a document which purports to have been made by another person. He has made, instead, a document which merely purports to have been made by himself, since he has used a name by which he is known and identified. See, e.g., State v. Mann (1967), 250 La. 1086, 1094, 202 So. 2d 259, 262, where it was held error to refuse a jury instruction which said, inter alia, “If a person commonly used an alias, it is considered as much his name as his real name, and he does not violate the law by using such alias.”

The gist of the issue is not whether the defendant used the name he was born with when he signed the document, but whether the document was made by one person and purported to be made by another. The State’s argument suggests that a person is entitled to be known by but a single name, in this case, by the defendant’s name given at birth. However, as one court has noted:

“A man’s name is simply the sound or sounds by which he is commonly designated by his fellows, and by which they distinguish him. It is a mere means of description. Sometimes a man is known by several different names ***.” State v. Howard (1904), 30 Mont. 518, 521, 77 P. 50, 51.

Here the defendant had been charged and convicted under the name of Russell Kelley. Our review of the record indicates that he was known by others as Ronnie Louis Taylor as well. There was no evidence that he used the name with the intent to defraud anyone.

Finally, we believe that even if the act of using an alias constituted a crime, which it doesn’t, there was no evidence which established that the specific offense of forgery occurred during the defendant’s period of probation. People v. Speight (1979), 72 N.E .2d. App. 3d 203, 389 N.E.2d 1342.

The order granting the defendant’s probation was not signed until after the defendant had signed the certificate acknowledging the conditions of probation to be imposed. If the defendant had refused to do so, the court would clearly have had a basis to deny probation on the ground that the defendant was unwilling to accept and abide by its proposed terms.

For the foregoing reasons, the judgment and sentence of the circuit court of Tazewell County is reversed.

Judgment reversed.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE STOUDER

text:
    CHARLES DEAN McCREIGHT, Plaintiff-Appellant, v. MARSHALL LANE McCREIGHT et al., Defendant-Appellees.
    Third District
    No. 3—83—0784
    Opinion filed January 9, 1985.
    Peter H. Lousberg and Mark A. Olberts, both of Lousberg, McClean, Snyder & Schwarz, of Rock Island, for appellant.

      Samuel S. McHard, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from a constructive trust imposed by the circuit court of Mercer County in favor of Lane McCreight against farm property the title of which was in Dean McCreight. The property which is the subject of this trust is a 236-acre tract which was originally owned by Ralph McCreight. Ralph died in 1953 and bequeathed the farm to his wife for life, then to his son Samuel (Beard) Mc-Creight for life, and upon the death of Beard to the issue of Beard living at the time of Beard’s death.

After Ralph died, Beard McCreight continued to operate the farm and employed his two sons Dean and Lane as laborers to whom he paid a salary. In 1960, Beard began to suffer serious financial difficulties. Beard consulted his attorney, and upon his advice Beard, Dean, Lane and Ralph’s wife applied for a loan from Monmouth Production Credit Association for $52,000. Due to the state of the title to the farm, Beard was unable to secure long-term financing. In 1962, Beard’s financial problems became acute, and Beard’s attorney advised the family that unless the contingent remainder interests were vested and the life tenancies terminated, there would be no way of obtaining the needed financing. The attorney devised a method for obtaining the needed financing by obtaining a decree from the circuit court of Mercer County pursuant to section 50 of “An Act to regulate *** chancery” (Ill. Rev. Stat. 1959, ch. 22, par. 50). The decree terminated the life estates (Florence was to be paid $22,500 for her life estate and Beard was to be paid $45,500), and $40,000 was to be paid to fund a trust for the benefit of Dean and Lane which was to be terminated upon the death of Beard. The entire project was to be financed by a mortgage loan from Northwestern Mutual Insurance Company in the amount of $70,000.

A trust was in fact established and funded with $40,000 from the Northwestern mortgage loan, and $30,000 was paid to Dean, who simply endorsed the check to Beard. The decree further provided that the trust was to sell the property to Dean, and a trust deed was in fact executed. A quit-claim deed released the life estates, and a quitclaim deed was executed by Dean and his wife to Beard and his wife, conveying the farm to Beard which was retained in the attorney’s file and never recorded. The mortgage application to Northwestern Mutual valued the farm at $138,000.

Beard continued to manage the farm throughout the period following the entry of the decree until his death in 1976. Beard and his wife lived in the main farmhouse on the property, Dean lived in a farmhouse on property which the family leased, and Lane moved to another farm owned by his wife and began farming there. Beard’s share of the net farm proceeds was two-thirds, while Dean received only one-third. The tax returns also disclose that Beard took all the depreciation from farm assets on his tax returns. In 1980, the trust established for the benefit of Lane and Dean distributed $38,700 to each of its beneficiaries, and Dean refused to convey one-half of the farm property to Lane.

In 1977, this proceeding was commenced by Lane to establish a constructive trust and for an accounting. Lane maintained that he had understood at the time the decree was entered in 1962 that the court proceeding was merely a means of obtaining needed financing and that he was not foregoing his share of the farm. In fact, Lane understood that either he or Dean could have been “at the top of the paper,” meaning the complaint. In fact, Dean claimed that it was not his signature on the complaint. The trial court agreed that a constructive trust should be granted and that Lane was entitled to one-half interest in the McCreight farm despite the decree. This action for constructive trust was styled as a continuation of the previous proceeding to change title.

Dean now argues that the proceeding commenced to establish a constructive trust was an attack on a prior judgment and that collateral attacks can be maintained only upon a showing of fraud or for lack of jurisdiction. A lack of jurisdiction was never alleged.

Dean further argues that fraud was neither alleged nor proved by Lane. In discussing this issue, Dean relies upon Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 374 N.E.2d 670, aff'd in part, rev’d in part (1980), 78 Ill. 2d 555, 402 N.E.2d 181, appeal after remand (1982), 107 Ill. App. 3d 222, 437 N.E.2d 783 (Kenroy III). However, this case better supports Lane’s position. Kenroy III deals with this precise issue, but rather than finding a constructive trust to be a collateral attack on a prior judgment the appellate court in Kenroy III found it to be a new proceeding. In this case, Lane is not seeking to vacate the previous judgment or to have the judgment declared a nullity. Rather, he is seeking to enforce an agreement with his brother to reconvey one-half of the farm to him after the death of their father. Because the Statute of Frauds bars an action at law, the equitable doctrine of unjust enrichment provides an action in equity. Therefore, we find that a constructive trust is not a collateral attack on the 1962 judgment but a means of enforcing an understanding between Lane and his family that the 1962 court proceeding would not change the devise of his grandfather.

The next issue raised by Dean is whether the trial court properly imposed a constructive trust on the farm property. In this case, the trial court found that no fiduciary relationship existed between the brothers. We disagree. Although a sibling relationship alone is not enough to establish a fiduciary duty, when one sibling reposes trust and confidence in another a fiduciary duty arises. In Bremer v. Bremer (1952), 411 Ill. 454, 104 N.E.2d 299, the supreme court imposed a constructive trust in a situation very similar to this case. In Bremer, two brothers who had formed a farm partnership needed to borrow money in order to continue to operate the farm. Louis, who sought the loan, represented to his brother Fred that the partnership could not obtain the needed loan and that the entire property interest must be transferred to Louis. After the loan was repaid and Fred had died, his widow sought to have Fred’s share of the farm reconveyed to her. The court imposed a constructive trust after finding that a fiduciary relationship existed.

Among the facts considered important by the court in Bremer in finding that a fiduciary relationship existed between the brothers was the fact that there was no consideration for the transfer. Although Dean argues that his purchase of the farm was a bona fide arms-length transaction, the record does not support his argument. The $40,000 which was used to establish the trust for Lane and Dean which issued the deed to the farm to Dean was a fund from the Northwestern Mutual mortgage loan, the security for which was the farm itself. In fact, Dean did not use any of his own money, and the facts clearly establish that he had no money to use. The court in Bremer found that a fiduciary relationship arises in situations where a person reposes trust and confidence in another and as a result he gains influence and superiority over the other. (Bremer v. Bremer (1952), 411 Ill. 454, 465, 104 N.E.2d 299, 305.) It is clear from Lane’s testimony that he was placed in a position by the 1962 decree where only Dean could restore his portion of the farm to him. Dean was, therefore, in a position of superiority and had considerable influence over Lane. Furthermore, it is clear that Lane never intended to relinquish his interest in the farm, and for the above reasons we find that a fiduciary relationship existed between the brothers.

A constructive trust will be properly imposed in a situation where a party with a fiduciary duty to another is unjustly enriched. Clearly, in this case Dean would be unjustly enriched if he was allowed to take title to the entire farm.

Dean also argues that laches and the statute of limitations bars this action. However, we reject these arguments as the supreme court did in Bremer and Malunney v. Meade (1977), 45 Ill. App. 3d 473, 359 N.E.2d 1091. In both cases, the date assigned by the court which commenced the running of the statute was when the loan had matured and, according to the understanding of the parties, the property was to be re-conveyed. In this case, the event which triggered the running of the statute was Beard’s death, when the trust organized to terminate the contingent future interests of (the issue of Beard) terminated .and became distributable. This action was clearly commenced within the period of the statute of limitations. Nor do we say that laches is a bar, as there is no showing that Lane sat on his rights.

We, therefore, affirm the decision of the circuit court of Mercer County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE McGLOON

text:
    ROBERT C. CHRISTENSON, Plaintiff-Appellee, v. BROADWAY BANK AND TRUST COMPANY, Defendant-Appellee (Federal Deposit Insurance Corporation, Receiver of Penn Square Bank, N.A., Proposed Intervening Defendant-Appellant).
    First District (1st Division)
    No. 83—2386
    Opinion filed December 24, 1984.

      Michael E O’Brien, of Paddock, McGreevy & Johnson, of Rockford, for appellant.
    Mairen C. Kelly and Edward J. Egan, both of Chicago, for appellee Robert C. Christenson.
    Kanter & Mattenson, Ltd., of Chicago, for appellee Broadway Bank and Trust Company.
   JUSTICE McGLOON

delivered the opinion of the court:

The Federal Deposit Insurance Corporation (FDIC) appeals the denial of its petition to intervene in a suit for injunctive relief brought by plaintiff, Robert C. Christenson, against Broadway Bank and Trust Company. On appeal, FDIC argues it is entitled to intervene as a matter of right because it is the successor beneficiary of a letter of credit which is the subject of the suit for injunctive relief.

We affirm.

On November 20, 1980, plaintiff subscribed as a limited partner in the Eagle Petroleum Program-1980. Pursuant to that subscription, plaintiff authorized Broadway Bank to issue an irrevocable commercial letter of credit whereby Penn Square Bank, N.A., was extended credit of $62,500. The instrument specified that all drafts drawn on the letter must be accompanied by evidence of plaintiff’s obligation “arising out of his subscription to the Partnership.” The letter also specified that any drafts drawn on the letter must be presented to Broadway Bank on or before February 28, 1983. On July 5, 1982, Penn Square was declared insolvent by the Comptroller of the Currency, and FDIC was appointed receiver.

By letter dated July 9, 1982, Broadway Bank was informed that plaintiff was investigating malfeasance in the conduct of Penn Square and Eagle, and that plaintiff believed he no longer had any obligation under his subscription to the partnership. On September 21, 1982, FDIC attempted to draw the full amount of the letter of credit. Broadway Bank dishonored the demand because the demand was not accompanied by evidence of plaintiffs obligation to the partnership. The bank returned the FDIC draft and all documentation presented by the FDIC.

On November 19, 1982, plaintiff filed suit to enjoin Broadway Bank from honoring drafts drawn on the letter of credit. According to plaintiff’s complaint, the solicitation of subscribers for the partnership violated both Federal and Illinois securities law, and plaintiff was induced to subscribe through fraud and misrepresentation. The complaint also alleged the general partner of Eagle informed plaintiff that FDIC had agreed not to collect on letters of credit until at least February 1, 1983, and that FDIC would attempt to resolve claims of creditors without drawing on the letters of credit at any time. Furthermore, plaintiff alleged that although Penn Square and FDIC “were aware of the voidability of the underlying securities transaction,” FDIC tried to collect on plaintiff’s letter of credit.

The circuit court entered a temporary restraining order enjoining Broadway Bank from honoring drafts drawn on the letter on November 19, 1982. On November 29, 1982, the order was converted into a preliminary injunction to remain in effect until further order of the court.

The record includes a letter dated December 2, 1982, from attorneys from Broadway Bank informing the FDIC in Oklahoma City of the issuance of the injunction. The letter indicated counsel advised Broadway Bank not to honor any drafts drawn on the letter of credit.

On May 13, 1983, FDIC filed a petition to intervene in the suit for injunctive relief, a motion to remove the case to Federal court, and a motion to dissolve the injunction. The trial court denied FDIC’s petition to intervene.

The Code of Civil Procedure allows intervention as a matter of right only when the party can show an interest in the subject of the action. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408.) “The interest must be direct and substantial and it must also be a specific, enforceable and recognizable right ***.” (People v. Roush (1982), 111 Ill. App. 3d 618, 621, 444 N.E.2d 625.) “The terms and conditions of the letter of credit determine and govern the bank’s obligation to pay. *** The documents which are presented by the beneficiary of a credit must comply with those stipulated in its terms.” (Pastor v. National Republic Bank (1979), 76 Ill. 2d 139, 151-52, 390 N.E.2d 894.) “[Wjhere a date is fixed in a letter of credit for its expiration, such provision becomes an important condition, and there must be strict compliance with it before there can be liability ***.” Liberty National Bank & Trust Co. v. Bank of America National Trust & Savings Association (10th Cir. 1955), 218 F.2d 831, 840-41.

In the case at bar, the letter of credit provides specifically that all drafts and supporting documentation must be presented to Broadway Bank on or before February 28, 1983. FDIC filed its petition to intervene on May 13, 1983, 21/2 months after the expiration of the letter of credit. According to the explicit terms of the letter of credit, Broadway Bank had no further obligation under the letter at the time of FDIC’s petition to intervene. Therefore, FDIC no longer had an enforceable interest in the subject matter of plaintiff’s suit and was not entitled to intervene as a matter of right.

We reject FDIC’s argument that plaintiff’s suit and the subsequent injunction acted to toll the expiration date of the letter of credit. FDIC relies on Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 357 N.E.2d 1307, and Hruby v. Steinman (1939), 302 Ill. App. 480, 24 N.E.2d 175, aff’d (1940), 374 Ill. 465, 30 N.E.2d 7, which we find distinguishable from the case at bar.

In Edgewater, the injunction imposed by the trial court specifically ordered the bank to extend the letters of credit during the pendency of the litigation. (44 Ill. App. 3d 220, 221.) Furthermore, the beneficiary had demanded payment prior to the suit for injunction, and that demand was pending while the litigation commenced. In contrast, in the case at bar, there was no pending demand on the letter at the time of either the suit for injunction or the petition to intervene. Although FDIC had previously made a demand on the letter, Broadway Bank explicitly and unequivocally dishonored that request, two months before plaintiff initiated the instant suit and approximately 6x/2 months before FDIC filed its petition to intervene.

In Hruby, the court noted:

“The injunction should not be permitted to stand because of the inequitable position taken by the plaintiffs. While this suit was pending, although they obtained an injunction for the purpose of preserving a status, the plaintiffs demanded and obtained from the master in chancery a deed of sale, although the running of the time for the issuance of the bill of sale was caused by the issuance of the injunction which was supposed to stop all proceedings.” (Hruby v. Steinman (1939), 302 Ill. App. 480, 501.)

We reject FDIC’s contention, based largely on Hruby, that because plaintiff obtained the injunction without notice, allowing the letter to expire without allowing FDIC to intervene would be inequitable. First, FDIC was informed of the injunction by letter dated December 2, 1982. Therefore, FDIC had almost three months to petition to intervene during the natural life of the letter, and we see no exigent circumstances which would explain its tardiness. Second, there is no evidence to indicate FDIC was actually prejudiced by the injunction. FDIC never presented a second draft on the letter, and there is no indication that FDIC was dissuaded from drawing on the letter because of the injunction. Furthermore, unlike the plaintiff in Hruby, plaintiff here did not use the injunction as a shield to take positive action to alter the respective positions of the parties.

The instant injunction did not alter the explicit terms of the letter of credit. FDIC, either through a conscious decision or through inaction, allowed the letter of credit to expire. We do not believe that FDIC should have been given another chance to collect on the expired letter of credit through its petition to intervene.

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

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEAN CHRISTOPHER RYAN, Defendant-Appellant.
    Third District
    No. 3-84-0058
    Opinion filed January 4, 1985.

      William G. Schick, of Rock Island, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner-appellant, Dean Ryan, responded to a telephone call on November 2, 1982, to go to the Moline police department and was placed under arrest as a fugitive from Pima County, Arizona. He was then photographed and fingerprinted. On the same day, a complaint was signed charging petitioner with being a fugitive from justice from the State of Arizona in violation of section 13 of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1981, ch. 60, par. 30). The following day, petitioner appeared in court and posted bond. On November 5, 1982, petitioner advised the court of his intention to resist extradition and subsequently filed a petition for writ of habeas corpus. After considerable delay, the hearing on this petition was held November 29,1983.

At this hearing, petitioner’s request for judgment by default for failure of the State to file a responsive pleading was denied. The trial court then allowed into evidence People’s exhibit No. 1, which includes a Governor’s warrant from the State of Arizona to the State of Illinois on Dean Ryan, and the photographs and fingerprint card for petitioner taken at the Moline police department. The Governor’s warrant stated petitioner committed the crimes of (1) unlawful offer to sell narcotic drugs valued at more than $250; and (2) conspiracy. Petitioner produced three witnesses, including himself, who testified that he had never been in the State of Arizona and specifically was not in Arizona during the time of the alleged violations. The State offered no rebuttal evidence. The trial court then denied the petition for writ of habeas corpus. It is from this denial that the petitioner appeals.

The principal issue we need consider on appeal is whether the trial court erred in denying petitioner habeas corpus relief. Petitioner contends, inter alia, there are no supporting documents or evidence showing he was present in the State of Arizona at the time of the commission of the crime; the demand does not comply with Federal/ State law because it does not include a certified copy of the indictment from Arizona; and he presented unrebutted testimony that he was not in Arizona at the time of the alleged crime.

An extradition warrant issued by the Governor of Illinois is properly admitted in evidence. (People v. Lynch (1959), 16 Ill. 2d 380, 158 N.E.2d 60.) Such a warrant, reciting the essential facts, affords a prima facie case that an accused is a fugitive from justice, thereby imposing upon him the burden of proving that his detention is illegal. (People ex rel. Borelli v. Sain (1959), 16 Ill. 2d 321, 157 N.E.2d 417.) To sustain a claim of illegal detention, this burden of proof is upon the accused to show that he is not substantially charged with an offense under the laws of the demanding State, that he is not the person charged with the offense in the demanding State, or that he is not a fugitive from justice. (People ex rel. Douglas v. Woods (1968), 39 Ill. 2d 381, 235 N.E.2d 601.) An accused person detained under a fugitive warrant may be judicially discharged only when it is so conclusively proved that no question can be made that the person was not in the demanding State when the crime is said to have been committed. People ex rel. Garner v. Clutts (1960), 20 Ill. 2d 447, 170 N.E.2d 538.

The petitioner testified that he had never been in the State of Arizona. Two other witnesses also testified to the same fact. The State’s cross-examination of the two witnesses, other than the petitioner, only brought- out the fact that they could not specifically remember being with petitioner on the 22nd or 23rd of September, 1982. The State presented no rebuttal evidence that petitioner was ever in the State of Arizona.

When the State introduces no evidence other than the extradition warrant and does not dispute the credibility of the petitioner’s evidence that he was not in the demanding State at the time of the commission of the alleged crime, the extradition warrant itself is not sufficient to create contradictory factual issues. (Nelson v. People (1973), 11 Ill. App. 3d 1092, 297 N.E.2d 172.) In Nelson, we stated that if an extradition warrant was sufficient to create contradictory factual issues, “the effect would be to give the warrant a conclusive presumption since in all cases the evidence would be merely contradictory.” (11 Ill. App. 3d 1092, 1094, 297 N.E.2d 172, 173.) As did the relator in Nelson, the petitioner in the present case sustained his burden of proof, and the evidence shows he was not a fugitive from justice from the demanding State.

The State argues, however, that even if section 13 of the Act (Ill. Rev. Stat. 1981, ch. 60, par. 30) is inapplicable, we should affirm the trial court’s decision based instead on section 6 (Ill. Rev. Stat. 1981, ch. 60, par. 23). Pursuant to this provision, Illinois may extradite an individual without proof the individual was in the demanding State at the time the alleged offenses occurred, provided, however, the accused is charged in the demanding State with committing an act in Illinois or in a third State, intentionally resulting in a crime in the demanding State. The State cites People v. Williams (1979), 68 Ill. App. 3d 351, 386 N.E.2d 145, as authority for the application of section 6. Williams is, however, not persuasive. In Williams, the extradition demand contained inaccurate statements in the printed form declaring that the crime was committed in Alabama and the accused had fled from justice. The court held this was not a substantial defect mandating discharge and applied section 6. Williams is distinguishable from the case sub judiee, because, in Williams, the application for extradition and all supporting documents stated that the basis of the demand was the relator’s violation of parole caused by her conviction in Illinois of certain crimes. The only basis for the instant trial court’s decision is the word “conspiracy” on the face of the Governor’s warrant.

The same argument was made by the State and sustained by the court in Papas v. Brown (1980), 88 Ill. App. 3d 471, 410 N.E.2d 568. There, the accused presented evidence, through the testimony of witnesses, that he was not present in the demanding State during the time period covered by the information. The court found section 6 applicable because both the requisition warrant issued by the Governor of Indiana and the rendition warrant issued by the Governor of Illinois recited that the accused committed acts in Illinois which resulted in a crime in Indiana. Papas is, therefore, distinguishable from the present case for the same reason Williams is distinguishable. We hold the mere mention of the term “conspiracy,” standing alone, is insufficient to bring the proceeding within the scope of section 6.

Petitioner has also assigned as error the failure of the State to file a responsible pleading to his petition and prejudice occurring from the more than one-year delay in holding the hearing on his petition. While we do not approve of the procedural deficiencies or delay, we nevertheless find they do not constitute reversible error. See Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 437 N.E.2d 712.

Accordingly, the order of the circuit court of Rock Island County denying the petition for writ of habeas corpus is reversed and remanded with directions that the petitioner be discharged from custody.

Reversed and remanded.

HEIPLE and BARRY, JJ., concur.