author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OLAF E. OLSON, JR., Defendant-Appellant.
    Second District
    No. 2—82—0482
    Opinion filed October 30, 1984.
    G. Joseph Weller, David S. Morris, and Robert Hirschhorn, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerald Grubb, State’s Attorney, of Belvidere (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

This is the second time this case is before this court. (See People v. Olson (1981), 96 Ill. App. 3d 193, 420 N.E.2d 1161.) In June of 1979 defendant, Olaf Olson, Jr., was charged in a six-count information with attempt (murder), armed violence, reckless driving, fleeing or attempting to elude a police officer, and two other traffic violations. Following a jury trial in the circuit court of Boone County, defendant was convicted on all counts and was sentenced, in relevant part, to concurrent terms of 27 years on the attempt (murder) count (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8 — 4(cXl)), and 10 years on the armed-violence count (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3(a)). Defendant appealed to this court, claiming, among other things, that judgment and sentence should not have been entered on the offense of attempt (murder) since it was a lesser included offense of armed violence predicated upon attempt (murder). This court declined to consider defendant’s contention and instead ordered a new trial on other grounds.

Upon remand, defendant was charged with the same six offenses. Following a second jury trial, guilty verdicts were again returned on all six counts. Defendant’s post-trial motions for a new trial and in arrest of judgment were denied. Defendant then moved to vacate the attempt (murder) conviction on the ground that it was a lesser included offense of armed violence and that these two convictions were based on the same physical act. The State responded that while attempt (murder) was considered a lesser included offense of armed violence predicated upon attempt (murder) (see People v. Myers (1980), 83 Ill. App. 3d 1073, 1077, 404 N.E.2d 1082, modified (1981), 85 Ill. 2d 281, 286-87, 426 N.E.2d 535), it wished to exercise its prosecutorial discretion to proceed only on the attempt (murder) conviction. The court denied defendant’s motion to vacate the attempt (murder) conviction, and granted the State’s motion to nol-pros the armed-violence count. Defendant was sentenced to 27 years’ imprisonment on the attempt (murder) charge. He appeals, claiming that this procedure: (1) violated the rule set forth in People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, that where there are multiple convictions carved out of the same physical act, judgment and sentence should be entered only on the more serious offense; and (2) permitted the State to proceed only on the lesser included offense solely for the improper purpose of obtaining a greater sentence against the defendant, a result which defendant claims allowed the State to accomplish indirectly what it could not accomplish directly. The State apparently concedes that the two offenses involved here arose from the same physical act (cf. People v. Myers (1980), 83 Ill. App. 3d 1073, 1077, 404 N.E.2d 1082), and that attempt (murder) is a “lesser included offense” of armed violence. (See People v. Julian (1980), 89 Ill. App. 3d 60, 65, 411 N.E.2d 337; People v. Myers (1980), 83 Ill. App. 3d 1073, 1077, 404 N.E.2d 1082, modified (1981), 85 Ill. 2d 281, 286-87, 426 N.E.2d 535; People v. Howard (1979), 78 Ill. App. 3d 858, 862-63, 397 N.E.2d 877.) It argues, however, that its motion to nol-pros the armed-violence count was a proper exercise of prosecutorial discretion. Alternatively, the State argues that the armed-violence conviction was properly vacated as being the more general offense. We do not reach the question whether armed violence is a “more serious offense” than attempt (murder) since, in our opinion, the holding in Donaldson does not remove the State’s discretion to proceed on a lesser included offense if it so desires.

The State’s power to nol-pros a charge extends to all stages of the trial proceedings up until the time that sentence is imposed. (People v. Baes (1981), 94 Ill. App. 3d 741, 746, 419 N.E.2d 47.) Thus, the declaration may be filed even after the verdict is rendered. (94 Ill. App. 3d 741, 746, 419 N.E.2d 47.) Consent and approval of the court is necessary before the State may enter a nolle prosequi, but the standard of the discretion vested in the court to review the State’s request is governed by the determination of whether the State’s Attorney’s action is “capriciously or vexatiously repetitious” (People v. Verstat (1983), 112 Ill. App. 3d 90, 104, 444 N.E.2d 1374), or whether it will cause substantial prejudice to the defendant (People v. Rudi (1984), 103 Ill. 2d 216, 222-23). Further, several recent cases have permitted the exercise of prosecutorial discretion to nol-pros a charge even upon appeal of the cause under circumstances where the charges in question were equally serious in nature and were not lesser included offenses of the others. (See People v. Rayford (1982), 104 Ill. App. 3d 124, 126, 432 N.E.2d 1041; People v. Schultz (1979), 73 Ill. App. 3d 379, 382, 392 N.E.2d 322.) In People v. Martin (1984), 121 Ill. App. 3d 196, 214, 459 N.E.2d 279, this court permitted the State to proceed on a less specific and less serious offense where both parties agreed to this result.

In the instant case, defendant contends that the prosecutor’s motion to nol-pros the armed-violence count was “vexatious” and therefore improperly granted because there was no reasonable excuse for filing the declaration. Defendant’s position would require the State to give a reason for its decision to nol-pros, and such a result is contrary to case law stating that “[t]he decision to nolle pros lies within the nearly unfettered discretion of the State’s Attorney ***.” (People v. Sanders (1980), 86 Ill. App. 3d 457, 467, 407 N.E.2d 951; People v. Verstat (1983), 112 Ill. App. 3d 90, 102-04, 444 N.E.2d 1374.) Further, defendant cites no authority to support such a proposition. We therefore conclude that a State’s Attorney need not give a reason for his decision not to pursue a matter or, in this case, a conviction, and that the critical inquiry in determining whether there is an abuse of his power to nol-pros is whether the action results in undue or inexcusable repetition of a criminal trial or substantial prejudice to the defendant. See People v. Rudi (1984), 103 Ill. 2d 216, 222-23.

Defendant argues that he was prejudiced by the State’s decision to nol-pros since it resulted in the imposition of an allegedly lengthier term of incarceration than would have been allowed on the armed-violence count. It is clear that had the State proceeded only on the armed-violence conviction, it could only have imposed a sentence of 10 years, since that was the original sentence for that charge and because principles of prosecutorial vindictiveness would have prevented a lengthier term of incarceration on that charge upon re-sentencing. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) However, defendant’s claim that the procedure here allowed the State “to accomplish indirectly what it could not accomplish directly” presumes that the State could not have exercised its prosecutorial discretion to nol-pros the armed-violence conviction on appeal from the first trial. There is no authority for this proposition and, to the contrary, case law heretofore cited indicates that such prosecutorial discretion has been allowed by several courts on appeal. (See People v. Rayford (1982), 104 Ill. App. 3d 124, 126, 432 N.E.2d 1041; People v. Schultz (1979), 73 Ill. App. 3d 379, 382, 392 N.E.2d 322.) Further, we find unpersuasive defendant’s claim that he was prejudiced by the procedure because its effect was to instruct the jury on an offense the State never intended to charge. It is true that prejudice is the natural result of erroneously instructing the jury on an uncharged offense, since it cannot be shown whether the jury followed the correct or the erroneous instruction. (People v. Payne (1983), 98 Ill. 2d 45, 56, 456 N.E.2d 44; People v. Stanko (1949), 402 Ill. 558, 561, 84 N.E.2d 839.) However, that danger does not exist where, as here, the jury was instructed only as to charged offenses and returned verdicts of guilty on each charge.

The rule set forth in People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, was designed to prevent a defendant from receiving multiple sentences when he committed only one physical act. (See People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838.) At the same time, we think it is evident that the court’s statement to the effect that the “more serious” offense should stand was designed to inure to the benefit of the State, and not to the defendant. We therefore interpret the Donaldson holding as permitting the State in such circumstances to obtain the highest sentence possible on that one physical act, regardless of whether that sentence was imposed for the greater or the lesser offense. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477.) In this regard, the court in People v. Gamboa (1975), 30 Ill. App. 3d 242, 253, 332 N.E.2d 543, decided prior to Donaldson, allowed a sentence for aggravated battery rather than attempt (murder) to stand, even though it noted that this was “contrary to the usual practice of sentencing a defendant for the more serious offense.” We also note that if we were required to vacate the judgment and sentence for attempt (murder) pursuant to Donaldson, it would appear that defendant may escape punishment altogether, since there is no judgment remaining on the armed-violence count in the trial court upon which this court could remand. (People v. Felton (1982), 108 Ill. App. 3d 763, 769, 439 N.E.2d 1107; see People v. Gamboa (1975), 30 Ill. App. 3d 242, 253, 332 N.E.2d 543.) We do not believe the holding in Donaldson was intended to achieve this result.

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

Affirmed.

SCHNAKE and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME SOSKINS, Defendant-Appellant.
    Second District
    No. 2—84—0040
    Opinion filed November 1, 1984.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Jerome Soskins, was found guilty by a jury of theft in excess of $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(a)), and was subsequently sentenced to a 30-month term of probation, which included a six-month period of imprisonment in the Lake County jail.

On appeal defendant raises three issues for our review: (1) whether the State failed to prove that he obtained unauthorized control of the subject automobile in Lake County; (2) whether the State failed to prove beyond a reasonable doubt the requisite intent to permanently deprive; and (3) whether the State was improperly allowed to impeach two of its own witnesses through the use of their prior felony convictions.

The count of the information on which the State proceeded to trial alleged that on August 2, 1983, in Lake County, defendant committed the offense of theft in violation of section 16 — 1(a) in that he “knowingly obtained unauthorized control” over an automobile having a value in excess of $300 of the estate of Elizabeth Strawn, intending to deprive it permanently of the benefit of said property. The testimony adduced at the jury trial established the following relevant evidence.

On July 20, 1983, the body of Elizabeth Strawn was found in her apartment in Chicago. She had died of natural causes. Defendant, a Chicago police officer, was one of several police officers who came to the apartment, and he and his partner removed her body. The deceased’s daughter, Billie Cowell, who was living in Maryland, was immediately informed by telephone of her mother’s death. She telephoned her mother’s apartment and talked briefly with the defendant about the funeral home to which the body would be taken and her intention to come to Chicago the next day. On July 22, Billie Cowell went to the apartment. She was aware that her mother owned a 1981 Ford Escort. She was not able to find the title or locate the automobile itself. On July 23 she reported the vehicle as stolen.

Chicago police officer Henry Dombrowski was one of two officers receiving the stolen vehicle report from Cowell. While looking for the vehicle in the area of the apartment on July 23, the officer saw the police vehicle defendant was assigned to, and stopped to inquire whether defendant had any knowledge of the missing vehicle. At first defendant said he did not, but then he recalled that at the time defendant was removing the body from the apartment, a black male had inquired about how he could be paid for repairs to the vehicle. Defendant said he had seen the man before and he thought he worked in a body shop. Defendant said he would look for the car.

Defendant called Billie Cowell later in the day on July 23. Cowell testified defendant said that he thought he knew where the automobile was, that a black man had done repairs to it and had the vehicle in a shop, and that he was owed money for it. Defendant said he would try to locate the car. On July 24, defendant called again and said the man who had the automobile was named Williams, and her mother apparently had a prior accident, but had not filed an accident report. Defendant said Williams was owed money. He said Williams and her mother knew each other from “A.A.” Defendant said he had not yet talked to Williams, but heard this information on the street. Cowell told him that any questions of money owed for the repairs would be handled by her lawyer, Henry Golden, but she was not convinced an accident occurred.

Attorney Henry Golden received a telephone call from defendant on July 26. Defendant said he was investigating the missing car. Defendant again repeated the story about the repairman and also stated a boyfriend of the deceased may have taken the vehicle. Golden was contacted again by defendant on July 28. Defendant told Golden that he thought a repairman named Williams had done the repair work, that Williams didn’t have a shop but had done it on the side for $1,100 and had been paid $500 and was looking to receive another $600, and that he would try to locate Williams and get the car. Golden told defendant that the individual should file a claim with the estate. Golden told him that Mr. Strawn, the deceased’s former husband, was authorized to pick up the automobile if it was found. Defendant telephoned later the same day and said he located the vehicle, that Williams had it, that Williams had the title, too, but wouldn’t turn over the car unless he got $600. Defendant suggested he might be able to find a buyer for the car, and pay off the $600 and remit the balance to Billie Cowell. Golden told him that was not the way to proceed but would consult Cowell. On July 29, defendant called Golden again and was told that Cowell was angry, that she wanted the car back, and that defendant should forget about acting as an intermediary. Golden said Cowell would sign a complaint against Williams if necessary. Defendant said he would still try to find Williams. In a final telephone conversation with defendant on July 30, Golden told him Cowell had complained to defendant’s commanding officer, and it was important to get the car back now. Defendant said he would try, but he was going out of town.

William Strawn talked by telephone with defendant on July 28. Defendant said he had found the car in a repair garage and $600 was still owing. Strawn said he had no authorization to pay $600, but just was to pick up the car. Defendant said he was going on vacation and the whole matter would be in abeyance for that period of time.

Police officer Theodore Raab of the internal affairs division of the Chicago police department was assigned to investigate defendant. On August 1, he went to Great Lakes Auto Sales in North Chicago in an undercover capacity. Pretending to be a customer, he met a salesman, Ben Hopkins. After that, Raab and his partner covered other used car lots in the area and eventually located Elizabeth Strawn’s automobile at Bill Archer Motors, a used car lot in Waukegan. The office was closed at the time, and a surveillance of the lot was established. The next morning, Raab and another female officer posing as his wife went to Great Lakes Auto Sales and spoke with Hopkins again. After a conversation with Hopkins and Allen Krause, Hopkins was given a set of keys by Krause, and Hopkins, Raab and the other officer left to go to the Archer Motors’ lot. Upon arriving there, Hopkins gave Raab the set of keys which unlocked the door to Elizabeth Strawn’s vehicle. Raab and the other officer took it for a test drive and found Elizabeth Strawn’s owner’s registration card inside the glove compartment. Upon returning to the Archer Motors’ lot, Raab saw defendant in the office after Hopkins handed defendant the keys. Raab told defendant he would pay $3,500 for the vehicle. Defendant said he already had a $50 deposit on the car and wouldn’t know until Friday whether it would go through because of the other person’s credit. At that point other officers of the internal affairs division arrived. Officers of this division testified that when they arrived defendant told them the car was in probate and all he was trying to do was make a couple of bucks off the car.

Elizabeth Strawn’s automobile was later inspected for body and fender damage. There was no indication of damage.

Allen Krause, owner of Great Lakes Auto Sales along with Michael Golden, defendant’s brother-in-law, testified that defendant brought the vehicle in question to his lot in late July. Defendant asked him to appraise it and said the car might become available for sale. Defendant took the vehicle to the Archer Motors’ lot and left it there. At that time, Krause and defendant were considering going into business together to rent the Archer Motors’ lot. Krause told Ben Hopkins, a salesman of his at Great Lakes, that the automobile could become available for sale. While Raab was present on August 2, Krause called defendant, who said the car was not available at the time, but Krause sent Raab over to Archer Motors with Hopkins and the keys.

Ben Hopkins also testified to certain events already discussed above.

William Archer testified that defendant was present on the Archer Motors’ lot on August 2 to discuss purchase of the lot. He heard defendant tell Raab that he could not sell the car at that time. Defendant also told Archer the car was going through probate and he would know in several days if it could be sold. Defendant along with A1 Krause had originally left the car on his lot and defendant said then it was going through probate.

No witnesses testified for the defense.

Defendant’s first contention on appeal is that he was charged and convicted of “obtaining” unauthorized control over the automobile in question in Lake County as opposed to an allegation that he “exerted” unauthorized control over the vehicle in Lake County. He argues that the proofs do not show he “obtained” unauthorized control of the automobile in Lake County, even assuming arguendo that they show he “exerted” unauthorized control in Lake County, but instead the evidence suggests that the initial taking of the vehicle occurred in Cook County. Defendant maintains that the Illinois theft statute proscribing the criminal offense of theft uses the disjunctive “or” in describing the offense. He argues that “obtains or exerts” unauthorized control over property describes different theories of prosecution, i.e., the term “obtains” referring to theft by the initial taking of the property, and the term “exerts” not necessarily limited to the initial taking. Defendant posits that as the proof of venue depends upon which form of theft is charged, the charge here alleging he “obtained unauthorized control” in Lake County was not proved and his conviction should be reversed.

The State essentially contends that the terms “obtains” and “exerts” as used in section 16 — 1(a) of the theft statute are interchangeable, and our recent decision in People v. Poliak (1984), 124 Ill. App. 3d 550, 464 N.E.2d 304, so held and is controlling in this case.

The offense of theft as defined in section 16 — 1 of the Criminal Code of 1961 applicable at the time of this offense is, in pertinent part, as follows:

“A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the owner; or

(b) Obtains by deception control over property of the owner; or

(c) Obtains by threat control over property of the owner; or

(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and

(1) Intends to deprive the owner permanently of the use or benefit of the property; or

(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or

(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.” Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1.

Defendant was charged specifically with violating subsection (a) of section 16 — 1 in that he “knowingly obtained unauthorized control” over the automobile intending to deprive the owner permanently of the property.

While we agree with the defendant that the proofs appear to be that unauthorized control over the automobile was initially obtained in Cook County and that the evidence does not establish that defendant initially obtained his unauthorized control in Lake County, we do not find these conclusions dispositive of the issue presented.

In People v. Poliak (1984), 124 Ill. App. 3d 550, 556-57, 464 N.E.2d 304, the court rejected the contention (paradoxically made therein by the State) that the phrase “obtains or exerts” unauthorized control over property of another, as set forth in section 16 — 1(a), denotes different theories of prosecution. We held that the gravamen of the offense of theft described in section 16(a) is the unauthorized control of the property of another and that the statutory terms “obtains” and “exerts” describe the same offense and are indistinguishable means of accomplishing the proscribed conduct of unauthorized control. People v. Poliak (1984), 124 Ill. App. 3d 550, 556-57, 464 N.E.2d 304; see also People v. Dziak (1975), 30 Ill. App. 3d 859, 333 N.E.2d 582 (abstract).

In the definitional article of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 15 — 1 et seq.), the phrase “obtains or exerts control” over property, as used in the theft statute, is defined as in-eluding, but not limited to, “the taking, carrying away, *** or possession of property.” (Ill. Rev. Stat. 1983, ch. 38, par. 15 — 8.) From this definition, it is also apparent that the wording of section 16 — 1(a), “obtains or exerts control,” is descriptive of the same offense, and the individual terms “obtains” and “exerts” are indistinguishable means of accomplishing the proscribed conduct of unauthorized control. The legislature clearly intended to create one substantive offense of unauthorized control by either means. On the other hand, where the statute specifically proscribes the conduct which is the basis of the particular type of theft offense using solely the term “obtains” (see, e.g., Ill. Rev. Stat. 1983, ch. 38, pars. 16 — 1(b), (c)), rather than “obtains or exerts,” a separate definition is provided which defines “obtains,” in this context, as meaning “to bring about a transfer of interest or possession.” (Ill. Rev. Stat. 1983, ch. 38, par. 15 — 7(a).) As the defendant was charged and convicted here under section 16 — 1(a), which provides the means of accomplishing the proscribed conduct in terms of “obtains or exerts,” the use of either word is descriptive of the same conduct.

The information charging the defendant specified Lake County as the locus of the crime and specified the date of the offense as August 2, 1983, which is the date defendant was arrested at the lot in Lake County where the automobile in question was then located. It is clear the State’s theory of prosecution was directed toward proof of unauthorized control of the automobile in Lake County on August 2, 1983, and not the date of its initial taking in Cook County, apparently on July 20, 1983. Defendant does not maintain his defense at trial was dependent upon the wording of the information in terms of “obtains” only, or that it induced him to withhold any evidence. We find no defect regarding proof of venue in this case. (See People v. Alexander (1982), 93 Ill. 2d 73, 78-81, 442 N.E.2d 887.) Our reference in People v. Poliak, that the terms “ ‘exert’ and ‘obtain’ are relevant in determining the locus of the proscribed conduct” (People v. Poliak (1984), 124 Ill. App. 3d 550, 558, 464 N.E.2d 304), was not intended to make venue dependent upon which of those terms was used, but instead indicated that venue for theft under 16 — 1(a) could in some cases lie in more than one county and the locus of the particular crime is determined by the offense as alleged in the charging instrument and by the proofs at trial.

Defendant’s next contention is that the State failed to prove that he had the requisite intent to permanently deprive. More specifically, defendant maintains that the evidence of his statements that the car was not yet available for sale, his reluctance to sell the vehicle to Raab, and his conversations with the Strawn family, all indicate a lack of intent to permanently deprive the owner of the benefit of the vehicle. He argues that it is much more reasonable to assume defendant would have ultimately turned over the car to Cowell if she would not authorize its sale. Additionally, defendant contends that, if anything, he was only guilty of attempted theft by deception of $600 concerning the story about Williams, but that charge was not filed against him.

An essential element of the offense of theft is that the accused possessed an intent to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(a)(1); People v. Gordon (1976), 64 111. 2d 166, 170, 355 N.E.2d 3.) Generally, the intent to permanently deprive the owner of the use or benefit of the property is proved by' circumstantial evidence. People v. Smith (1984), 124 Ill. App. 3d 914, 922, 464 N.E.2d 1206.

In the instant case, the evidence established that defendant possessed the automobile on August 2, 1983, and deprived the estate of Elizabeth Strawn permanently of the use or benefit of it when he retained possession of the vehicle, knowing it belonged to the estate and that Billie Cowell refused to pay for any alleged repair to it. His story, recited to Billie Cowell and Attorney Golden, that a black man named Williams had the vehicle and was keeping it until a repair bill balance was paid, was never supported by any evidence at trial. It was shown that he possessed the automobile at a used car lot, allowed it to be shown to a potential buyer, and revealed it could be sold if another prospective purchaser’s credit was not approved. When confronted by investigating officers, he made the statement that all he was trying to do was make a couple of bucks off the car.

Under all these circumstances and the entire evidence in this record, it has been proved that defendant’s intent was to deprive the owner permanently of the use or benefit of the automobile. Even though defendant made some statements to others that the vehicle could not be sold because it was in probate, it is clear that defendant had no authority from Attorney Golden or Billie Cowell to possess the vehicle himself for any reason, other than to return it, while the deceased’s legal affairs were being administered. We find no reasonable doubt of the defendant’s intent to deprive the owner permanently of the automobile has been shown.

Defendant’s final contention is that he is entitled to a new trial because the trial court allowed the State to impeach two of its own witnesses, Allen Krause and Benjamin Hopkins, by admitting evidence of their prior felony convictions. He argues on appeal that this was not “an appropriate case for such impeachment since neither Krause nor Hopkins were hostile witnesses and since neither side asserted that any portion of their testimony was untruthful.” Defendant further argues the evidence of their prior convictions was, therefore, not relevant to any valid issue before the jury, and even relevant evidence should be excluded if its probative value is outweighed by its prejudicial effect upon the defendant. As both these witnesses were used car salesmen at a used car lot where defendant had originally taken the automobile, and as Krause was shown to have known defendant for a long period of time and was planning to be a partner with defendant in the used car lot where the automobile in question was located, defendant maintains the State was “trying to tar the defendant with the records of his associates.”

At trial, defendant’s repeated, specific objections to the State’s proposed evidence of these witnesses’ prior felony convictions were that as defendant did not intend to impeach the State’s witnesses with their prior felony convictions, the State could not impeach its own witnesses. However, the State may prove up the prior criminal record of its own witness on direct examination as an anticipatory disclosure designed to reduce the prejudicial effect of such evidence on the witness’ credibility (People v. DeHoyos (1976), 64 Ill. 2d 128, 131-32, 355 N.E.2d 19; People v. Peebles (1983), 114 Ill. App. 3d 684, 694, 449 N.E.2d 230), and Supreme Court Rule 238(a) (87 111. 2d R. 238(a)) also provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” (See People v. Garcia (1983), 97 Ill. 2d 58, 79, 454 N.E.2d 274; People v. Gonzalez (1983), 120 Ill. App. 3d 1029, 1039, 458 N.E.2d 1047.) Thus, the specific objection which the defendant relied upon at trial was properly denied by the trial court. Although the defendant on appeal argues that the evidence of the prior criminal convictions was not relevant because he was not going to introduce that evidence to challenge the credibility of those witnesses and that relevant evidence still can be excluded if its prejudicial effect to defendant outweighs its probative value, these contentions did not form the basis of the objection to this evidence in the court below. It is axiomatic that a specific objection to evidence operates as a waiver of all grounds not specified in the objection. People v. Rink (1983), 97 Ill. 2d 533, 543, 455 N.E.2d 64; People v. Baker (1983), 114 Ill. App. 3d 803, 807, 448 N.E.2d 631.

Even were we to assume that defense counsel’s comment made during argument on his specific objection that the State was only trying to tar defendant with the record of someone else could be construed as a relevancy objection or an objection going to the prejudicial effect of otherwise relevant evidence, we would not find defendant suffered any prejudice. The State did not comment in final argument on the prior convictions of these witnesses or attempt to infer guilt by defendant’s association with these witnesses.

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

Affirmed.

SCHNAKE and LINDBERG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARILYN MILLER, Defendant-Appellant.
    Second District
    No. 83—1083
    Opinion filed November 1, 1984.

      Mary L. Mikva and Patrick A. Tuite, both of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Fred L. Foreman, State’s Attorney, of Waukegan (David E. Bindi and Mark L. Rotert, Assistant Attorneys General, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant Marilyn Miller appeals from her conviction of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1), claiming that: (1) she was not proved guilty of syndicated gambling beyond a reasonable doubt; and (2) the trial court improperly admitted a hearsay declaration of the defendant’s father which implicated defendant in the charged offense.

On October 14, 1982, defendant and her father, Robert Dugan, were indicted for the offense of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38 par. 28 — 1.1), for events which transpired between July 13 and September 10, 1982. The charges against Robert Dugan were nol-prossed. Testifying for the State, Jon Sandusky, a special agent with the Illinois Department of Law Enforcement, stated that he was conducting an undercover investigation of gambling activities in Lake County during the months charged in the indictment. On July 9, 1982, Agent Sandusky was in the basement of the Green Mill Restaurant, where he had a conversation with Robert Dugan regarding placing bets on a horse race. After asking Dugan whether he had any phone numbers where Sandusky could call in the bets, Dugan wrote down two phone numbers along with the names “Marilyn” or “Deb.” Dugan asked what name the agent wanted to use to call in the bets, and Sandusky responded with the name Jon Sanders.

On July 13, 1982, Agent Sandusky called one of the phone numbers given to him by Dugan. A female voice answered the phone, and Sandusky requested to speak with Marilyn or Deb. The woman asked who was calling, and Sandusky replied with the name Jon Sanders and stated that “Bob Dugan said it was okay to call this number.” The woman then said, “This is Marilyn, what can I do for you?” Agent Sandusky asked for the betting line on the All Star game, which the woman was unable to get until later that day. San-dusky then requested the figures on a horse race that he had bet on with Dugan on July 8, and the woman responded that “her books showed [Dugan] a $95 winner.” Later that afternoon, Sandusky called the same number and asked for Marilyn. The woman who answered identified herself as Marilyn; Agent Sandusky recognized her voice as being the same voice he had talked to earlier. He again asked for the betting line on the All Star game, and the woman provided that information and explained the odds. After hanging up the phone, Agent Sandusky called back several minutes later, again asked for Marilyn and, when she got on the phone, placed several bets totaling $175 on the All Star game. The woman read back the bets and stated something to the effect, “I’ll assure one-seventy five.” San-dusky also stated he would pick up his $95 from Dugan later. San-dusky testified that he recognized the woman’s voice as being that of the woman who had previously identified herself as Marilyn.

Agent Sandusky called the numbers given to him by Dugan three more times in July, placing bets on horse races totaling $550. Each time he called, he spoke to a woman who identified herself as Marilyn.

On August 5, 1982, Agent Sandusky called again and placed bets totaling $170 with the woman identifying herself as Marilyn. Shortly before midnight on August 5, 1982, Agent Sandusky saw Robert Dugan and defendant in the basement of the Green Mill Restaurant. Special Agent Eugenie Dresel was also present. They were all seated at the same table along with defendant’s husband, Don Miller. Over defendant’s objection, Agent Sandusky testified that Dugan introduced him to defendant by saying, “This is my daughter, Marilyn, the one you call your bets into ***.” After the introduction, San-dusky had a conversation with defendant regarding calling in the bets; Sandusky recognized defendant’s voice as being the same voice he had talked to on the telephone.

During the month of August, Agent Sandusky made three more phone calls to bet on horse races, each time speaking to the woman who identified herself as Marilyn. The bets during this month totaled $730. Sandusky testified that the voice of the woman on the phone was the same voice that he had spoken to on previous occasions and was the voice of the woman he had met at the Green Mill Restaurant.

In September, Agent Sandusky made three more phone calls to bet on horses and/or football games, each time placing his bets with the same woman whose voice he recognized as being defendant’s, and who identified herself as “Marilyn.” The bets during September totaled $750. Sandusky conceded on cross-examination that the person to. whom he looked for his winnings or to whom he expected to make his payments was Robert Dugan and not defendant. Sandusky never promised to pay defendant any money.

The record indicates that during the period covered by the indictment, Agent Sandusky placed at least 11 bets totaling $2,375 with the woman he identified as being defendant. In addition to accepting these bets, on at least five occasions defendant advised Sandusky of the dollar amount which he owed to Dugan or which Dugan owed to him.

During a subsequent search of Dugan’s home various items were recovered, including two telephones, an adding machine, five ledger sheets containing writing, schedules of sporting events, and a number of sports journals. The parties stipulated that the phone numbers called by Agent Sandusky were registered to the residence of Robert Dugan. Defendant did not testify.

Following the denial of defendant’s motion for a directed finding at the close of the State’s case, she was found guilty by the jury of syndicated gambling. Defendant’s post-trial motion was denied and she was sentenced to a term of two years’ probation.

Defendant first argues that she was not proved guilty of syndicated gambling beyond a reasonable doubt because there was no evidence that money was paid or promised to be paid to her. She contends that proof of this fact is essential to sustain a conviction for the offense of bookmaking, as that offense is defined' in section 28— 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(d)). The State responds that the gist of the offense of bookmaking is the receipt or acceptance of more than five bets totaling more than $2,000, and that the State need not prove that a defendant actually profited or expected to profit from the operation.

The question presented is. one of first impression in this State. Section 28 — 1.1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(d)) defines the offense of bookmaking as follows:

“(d) A person engages in bookmaking when he receives or accepts more than five bets or wagers upon the result of any trials or contests of skill, speed or power of endurance or upon any lot, chance, casualty, unknown or contingent event whatsoever, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid to such bookmaker on account thereof shall exceed $2,000. Bookmaking is the receiving or accepting of such bets or wagers regardless of the form or manner in which the bookmaker records them.” (Emphasis added.)

In construing a statute, the courts are to ascertain and give effect to the true intent and meaning of the legislature. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174.) The specific words of a statute are the best indicators of the legislative intent behind the statute. (Mack v. Seaman (1983), 113 Ill. App. 3d 151, 155, 446 N.E.2d 1217.) Where the language of a statute is plain, there is no need for interpretation; however, where interpretation is required, the appellate court will select the construction which leads to a logical result, and will consider the object to be obtained and the result of various interpretations of the act. (Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 929, 446 N.E.2d 256.) Criminal or penal statutes are to be strictly construed in favor of an accused, and nothing is to be taken by intendment or implication against him beyond the literal or obvious meaning of the statute. (People v. Scribner (1982), 108 Ill. App. 3d 1138, 1144, 440 N.E.2d 160.) However, such statutes are not to be construed so strictly as to defeat the obvious intent of the legislature. People v. Scribner (1982), 108 Ill. App. 3d 1138, 1144, 440 N.E.2d 160.

Turning to the language of the syndicated gambling statute, the legislature has expressly declared that its purpose in enacting the statute was “to restrain persons from engaging in the business of gambling for profit in this State.” (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(a).) The statute further states that it “shall be liberally construed and administered with a view to carrying out this policy.” (Ill. Rev. Stat. 1981, eh. 38, par. 28 — 1.1(a).) Section 28 — 1.1(d) states that a person “engages in bookmaking when he receives or accepts more than five bets or wagers ***, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid to such bookmaker on account thereof shall exceed $2,000.” This sentence clearly sets forth the requirement that the defendant accept or receive five or more bets totaling more than $2,000 before he may be convicted of the offense of syndicated gambling based upon bookmaking. See People v. Dugan (1984), 125 Ill. App. 3d 820, 828, 466 N.E.2d 687; People v. Finn (1978), 68 Ill. App. 3d 126, 132, 385 N.E.2d 103; People v. Stavros (1974), 18 Ill. App. 3d 1071, 1073, 311 N.E.2d 220.

The words “to such bookmaker” qualify the phrase “money paid or promised to be paid” and, in our opinion, are meant to clarify that phrase rather than to create the additional element that money must actually be paid or promised to be paid to the defendant himself. (See City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 375, 385 N.E.2d 687.) This view is bolstered by the last sentence in the bookmaking statute which expressly states that “[bjookmaking is the receiving or accepting of such bets or wagers regardless of the form or manner in which the bookmaker records them.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 28— 1.1(d).) This language makes it clear that the offense is complete when the defendant “receives or accepts” the requisite number and amount of bets, and not when he actually receives or has an expectation of receiving the money wagered. The provisions of a statute should be read as a whole, and where the literal language found in the statute would defeat the legislature’s clearly expressed objective or purpose the courts may modify, alter, supply or delete words to obviate the inconsistencies with the legislative intent. (In re Application of People ex rel. Walgenbach (1983), 117 Ill. App. 3d 14, 17, 452 N.E.2d 760, rev’d on other grounds (1984), _ Ill. 2d _; Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, 980, 427 N.E.2d 399.) The interpretation urged by the defendant here would have the effect of shifting the emphasis of the bookmaking statute from the receipt or acceptance of wagers to the receipt or expectation of receipt of money. Had the legislature intended this result, it could have incorporated this element into the last sentence of the bookmaking provision which defines the essence of the offense.

It is also clear that the defendant’s interpretation of the statute would contravene the expressed intention of the legislature that the syndicated gambling statute be liberally construed with a view to restraining persons from engaging in the business of gambling for profit. (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(a).) The addition of the element urged by defendant would in some circumstances allow those engaged in organized gambling activities to escape prosecution under this section through the division of labor or duties. In order to obtain a conviction, the State would have to gather evidence as to both middlemen and heads of the organizations and prove not only the elements of the bookmaking statute, but also the elements of either a conspiracy or accountability. Such a result would not promote the purpose of the statute. We also reject the notion, argued by defendant, that the legislature intended the middleman in a gambling operation to be prosecuted under the misdemeanor gambling statute, and not under the syndicated gambling statute. (See Ill. Rev. Stat. 1981, ch. 38, par. 28 — l(a)(10).) In People v. Dugan (1984), 125 Ill. App. 3d 820, 827, 466 N.E.2d 687, this court expressly found that the gambling offenses set forth in section 28 — 1 are incorporated into the syndicated gambling statute. Thus, it is the extent of the gambling activity involved that distinguishes the syndicated gambling statute from the gambling statute, and not the role of the participants. Further, the evidence in the instant case showed not only that defendant transmitted information as to wagers, a misdemeanor under the gambling statute (see Ill. Rev. Stat. 1981, ch. 38, par. 28— l(a)(10)), but also accepted or received wagers by telephone, conduct which is clearly proscribed by the bookmaking provision of the syndicated gambling statute.

The case of People v. Eagle Food Centers, Inc. (1964), 31 Ill. 2d 535, 202 N.E.2d 473, relied upon by defendant as support for her argument, is distinguishable from the instant case and therefore is of little guidance here. In Eagle Food Centers, Inc., the issue was whether defendants had “paid or promised” consideration in exchange for a chance to win a prize at the defendant food stores. Here, there is no question that money was paid or promised to be paid as consideration in exchange for a chance to win a bet. Rather, the question here is whether that money must be paid or promised to the defendant himself, and this question was not addressed by the court in Eagle Food Centers, Inc.

Defendant next argues that Agent Sandusky was improperly permitted to testify as to Dugan’s introduction of his daughter as, “This is my daughter, Marilyn, the one you call your bets into ***.” Defendant argues that this statement constituted impermissible hearsay and was neither an implied admission of defendant nor a declaration of a co-conspirator made in furtherance of the conspiracy. These were the two grounds relied upon by the prosecutor for the statement’s admission at trial.

It is well established that when a statement, incriminating in character, is made in the presence and hearing of the accused, and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of defendant’s failure to deny it are admissible as evidence of his acquiescence in its truth. (People v. Morgan (1976), 44 Ill. App. 3d 459, 462, 358 N.E.2d 280.) In order to qualify as an implied admission or an admission by silence, it is necessary that the circumstances be such “ ‘that the accused has heard the statement implicating him and has voluntarily refused to challenge the statement.’ ” (People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784, quoting People v. Nitti (1924), 312 Ill. 73, 91, 143 N.E. 448; see also People v. Simpson (1976), 39 Ill. App. 3d 318, 321-22, 349 N.E.2d 441.) Because the principle permitting admission is that the natural reaction of an innocent person would be to deny the accusation, and that silence is an admission of guilt, proof of a defendant’s silence is essential to the admission of the declaration. People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784; People v. Simpson (1976), 39 Ill. App. 3d 318, 321, 349 N.E.2d 441.

Defendant argues that her father’s statement of introduction does not qualify as an implied admission because the State failed to prove: (1) that defendant heard the statement; (2) that defendant reacted to the statement, even by her silence; and, (3) that defendant would naturally be expected to deny the statement. With respect to the first and' third arguments, it has been held that whether an accusation was heard and whether the circumstances were such that a response would normally be made, are questions for the trial court or, as here, the trier of fact, to determine. (People v. Bush (1963), 29 Ill. 2d 367, 372, 194 N.E.2d 308, cert. denied (1964), 376 U.S. 966, 11 L. Ed. 2d 983, 84 S. Ct. 1129; People v. Homer (1956), 8 Ill. 2d 268, 273, 133 N.E.2d 284.) There was evidence in the present case from which the jury could reasonably conclude that defendant heard the statement and would naturally have denied it had it been false. The fact that the statement was an introduction of Agent Sandusky to defendant, that Dugan was in close proximity to defendant at the time he made the statement, and that the noise level in the restaurant was not such that the statement could not be heard, are all circumstances from which the jury could reasonably conclude that defendant heard her father’s statement of introduction. (See People v. Homer (1956), 8 Ill. 2d 268, 273, 133 N.E.2d 284.) Similarly, we think that the statement, if heard, was of the type that would normally be denied or objected to by one who was innocent of any wrongdoing. Dugan’s description of defendant, in her presence, as being “the one you call your bets into” on its face identifies defendant as playing an active and ongoing role in an established gambling operation. (See People v. Smith (1962), 25 Ill. 2d 219, 224, 184 N.E.2d 841.) While the statement apparently was not made in an accusatory tone, it nonetheless should have been evident that defendant was being painted or portrayed as a participant in illegal and prohibited activity. Under these circumstances, one innocent of such activity would normally and naturally deny or correct such an impression.

Although it affirmatively appears that defendant must have heard the statement and would normally be expected to deny it, there is nothing in the record here to indicate whether defendant remained silent or denied the accusation. (See People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784; People v. Simpson (1976), 39 Ill. App. 3d 318, 321, 349 N.E.2d 441.) In order for such a statement to be admissible under the implied-admission exception to the hearsay rule, the State must establish the defendant’s failure to deny the accusation. (People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784.) It is not the defendant’s responsibility to prove he denied the accusation; thus, the absence of such proof by the State renders the admission of the statement erroneous. (People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784; People v. Simpson (1976), 39 Ill. App. 3d 318, 321, 349 N.E.2d 441.) We do not believe, as the State suggests, that Sandusky’s subsequent conversation with defendant at the Green Mill Restaurant about “calling in the bets” constituted evidence of defendant’s acquiescence in her father’s statement of introduction. While such evidence may be independently relevant to establish defendant’s guilt, it does not constitute direct proof of the defendant’s reaction to the challenged statement. Accordingly, we conclude that Dugan’s statement was inadmissible under the implied-admission exception to the hearsay rule.

Defendant also contends that Dugan’s statement is inadmissible under the co-conspirator’s declaration exception to the hearsay rule. Under this exception, the acts and declarations of a co-conspirator made in furtherance of the conspiracy are admissible against a defendant even when they are made out of the defendant’s presence. (People v. Columbo (1983), 118 Ill. App. 3d 882, 945, 455 N.E.2d 733.) In order to avail itself of the co-conspirator exception, it is not necessary for the State to charge the crime of conspiracy; the State is merely required to establish a prima facie case by independent evidence that two or more persons were engaged in a common plan to accomplish a criminal goal or to reach another end by criminal means. (People v. Columbo (1983), 118 Ill. App. 3d 882, 945, 455 N.E.2d 733; People v. Olmos (1979), 77 Ill. App. 3d 287, 291, 395 N.E.2d 968.) The existence of the agreement, which is the essence of a conspiracy, need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the accused. (People v. Columbo (1983) 118 Ill. App 3d 882, 945, 455 N.E.2d 733; People v. Olmos (1979), 77 Ill. App. 3d 287, 291, 395 N.E.2d 968.) Finally, statements made in furtherance of a conspiracy are those which had the effect of advising, encouraging, aiding or abetting its perpetration. (People v. Columbo (1983), 118 Ill. App. 3d 882, 948, 455 N.E.2d 733; People v. Olmos (1979), 77 Ill. App. 3d 287, 292, 395 N.E.2d 968.) Thus, a statement which is merely a narrative of past occurrences will not satisfy this requirement since it does not further any objective of the conspiracy. (People v. Columbo (1983), 118 Ill. App. 3d 882, 948, 455 N.E.2d 733; People v. Meagher (1979), 70 Ill. App. 3d 597, 603-04, 388 N.E.2d 801.) In the present case defendant argues, first, that there was no prima facie showing of a conspiracy between Dugan and defendant, and, second, that even if a conspiracy existed, Dugan’s statement of introduction was not made “in furtherance” of any such conspiracy.

With respect to defendant’s first argument, the record contains sufficient evidence to establish a prima facie case of a conspiracy between Dugan and defendant. Dugan initially' informed Agent Sandusky that he could place bets on horse races with either “Marilyn or Deb,” whom Sandusky could reach at one of two phone numbers registered to Dugan’s home. When Sandusky first called one of these numbers, he told the woman answering that “Bob Dugan said it was okay to call this number.” The woman then responded, “This is Marilyn, what can I do for you?” Subsequently, Sandusky spoke with this same woman on numerous occasions, each time placing his bets with her and receiving betting odds and information as to winnings and losses from her. On several occasions the woman, who identified herself as “Marilyn,” referred to “her books” and informed Sandusky that he could either collect from or pay Dugan. Finally, Agent Sandusky had a conversation with defendant in person at the Green Mill Restaurant about “calling in bets” and about defendant’s sister, Debbie, “who worked with her.” Dugan was also present. Sandusky recognized the defendant’s voice as being the same voice he spoke with on the telephone. From all this evidence, the trial court could reasonably conclude that defendant and her father, Robert Dugan, were engaged in a common plan to accept or receive bets on various sporting events.

We also are of the opinion that the statement was made “in furtherance” of the conspiracy. Dugan’s use of the present tense verb “call,” rather than the past tense verb “called,” makes it clear that he was not simply describing an event or events which had already occurred. (Cf. People v. Simpson (1976), 39 Ill. App. 3d 318, 320-21, 349 N.E.2d 441.) Rather, the phrase, “the one you call your bets into,” was clearly referring to an ongoing and present relationship between Agent Sandusky and defendant, of which Dugan was obviously aware. It has been held that statements of one co-conspirator accompanying or explaining the common design are admissible against all co-conspirators. (People v. Hoover (1976), 35 Ill. App. 3d 799, 805, 342 N.E.2d 795; People v. Daniels (1968), 92 Ill. App. 2d 207, 213, 235 N.E.2d 305.) While this proposition has been questioned when the statement is merely explanatory of past occurrences (People v. Meagher (1979), 70 Ill. App. 3d 597, 602, 388 N.E.2d 801), we believe it is applicable where the statement in question is explanatory of present events. The statement in the present case was explanatory of ongoing events, as evidenced by Dugan’s use of the present tense word “call,” by the fact that the statement was made in the middle of the time period charged in the indictment (see People v. Meagher (1979), 70 Ill. App. 3d 597, 601, 388 N.E.2d 801), and by the fact that it was made to an individual whom Dugan believed was a participant in the ongoing gambling operation. (See People v. Columbo (1983), 118 Ill. App. 3d 882, 946-47, 455 N.E.2d 733.) Under all these circumstances, we conclude that the statement was properly admitted under the co-conspirator’s declaration exception to the hearsay rule.

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

Affirmed.

SCHNAKE and REINHARD, JJ., concur.


author: JUSTICE LINDBERG

text:
    REX H. LIGHT et al., Trustees, Plaintiffs and Counterdefendants-Appellants, v. CARL E. STEWARD et al., Defendants and Counterplaintiffs-Appellees.
    Second District
    No. 2—83—0831
    Opinion filed October 30, 1984.

      Kenneth W. Traum, of Kostantacos, Traum, Reuterfors & McWilliams, and Milton A. Fischer, both of Rockford, for appellants.
    John L. Olson, of Schleuter, Ecklund, Olson, Barrett & Moore, of Rockford, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiffs brought this action in the circuit court of Winnebago County to enjoin defendants’ use of plaintiffs’ property. Defendants counterclaimed for an easement to use plaintiffs’ property. The trial court found for defendants and declared an easement. We affirm.

Defendants, Carl and June Steward, own a tract of land in Winnebago County which is surrounded on three sides by the Pecatonica River. The only land access to their property is through the tract of land owned by plaintiffs, Rex and Sarah Light, which lies to the north of the Stewards’ tract. On September 24, 1981, the Lights filed their complaint in the present action seeking to enjoin the Stewards from entering the Lights’ land. The Stewards answered the complaint and filed a counterclaim seeking a declaration of an easement across the Lights’ land and injunction against the Lights’ interference with the Stewards’ right of access, and money damages.

The bench trial was held on March 1, 1982. The evidence showed that the Lights acquired the northern tract in 1952. The Stewards acquired the southern tract in 1978 from the widow of Don Adams, who died in 1977. Adams acquired the southern tract in 1948. A public road, Cleveland Road, ends at the northern boundary of the Lights’ land. Don Adams and his guests frequently crossed the Lights’ land in order to enter and exit the southern tract. The “way” or “lane” they used crossed over the Lights’ driveway, through a gate, and over an unpaved path to the northern boundary of the southern tract. Adams and his guests used his land for recreational purposes, and a cottage was built on the property in 1961. The Lights have a residence on their land about 550 feet south of the terminus of Cleveland Road. The Lights raised livestock on their property.

The Stewards also used the lane to reach the southern tract, both as guests of Don Adams and later as owners of that tract. After the Stewards acquired their property, however, a dispute erupted between the parties over the Stewards’ use of the lane, which resulted in the Lights’ attempt to block access to the lane and their filing of this action. Further evidence regarding the use of the lane will be discussed in relation to the legal issues raised.

The trial court rendered an oral decision on March 5, 1982, declaring an easement in favor of the Stewards. A written order was filed on March 19, 1982, which left open the question of reasonable restrictions. An appeal to this court was dismissed for want of jurisdiction because the order was not final as to all issues. Eventually, on September 9, 1983, a final and appealable order was filed which incorporated by reference the court’s order of March 19, 1982, and set forth certain restrictions for the easement declared.

Excluded Testimony

The Lights contend that the trial court erred in excluding the testimony of Chester Lynn and Warren Duclon relating to an oral agreement between Don Adams and Rex Light. Upon objection by the Stewards, the trial court permitted Lynn’s testimony subject to a reserved ruling on its admissibility. The court sustained the Stewards’ objection to Duclon’s testimony but permitted examination as an offer of proof. Following that offer of proof, the court also excluded Lynn’s testimony regarding the agreement.

The substance of the challenged evidence tended to show that Rex Light had agreed to permit Don Adams’ use of the lane through Light’s property in exchange for Adams’ permitting Light to graze cattle on his land. Chester Lynn testified that he heard the conversation in the spring of 1952 between Light and Adams in which the agreement was created. Warren Duclon testified that in 1953 or 1954, on an occasion when Duclon went with Adams to Adams’ property by way of the lane on the Lights’ property, Adams told Duclon that he had a verbal agreement permitting his use of the lane in exchange for permitting Light to graze his cattle on Adams’ property.

The Stewards’ objected to the testimony of both Lynn and Duclon on the bases of hearsay and the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 51, par. 2). The Lights’ response at trial was that the conversations constituted admissions against interest, an exception to the hearsay rule, and that the Dead Man’s Act was applicable only to cases involving the executor or other representative of a deceased person. In striking Lynn’s testimony, the trial court gave the following reasons:

“ — on the grounds that it’s hearsay and not — not that it’s just hearsay. It’s not — it really makes no difference what agreement those two parties had. It’s what was expressed, I think, and what was the agreement between — what was made known to the present defendants in this case — what was their understanding.”

With regard to Duclon’s testimony, the trial court simply sustained the Stewards’ objection and denied the contention of the counsel for the Lights that the proffered evidence constituted an admission against interest.

On appeal, the Lights argue that the evidence is relevant to show that use of the lane had not been adverse. Further, the Lights argue that the testimony is not excludable because the Dead Man’s Act does not apply, because the testimony is not hearsay as the out-of-court statements were not offered for their truth, and because three specific hearsay objections would be applicable in any event. The Stewards maintain that those of the arguments for admissibility not presented to the trial court cannot be urged for the first time on appeal.

The general rule for preserving for review a contention that testimony has been wrongfully excluded is that an offer of proof must be made. (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 444 N.E.2d 220.) Here, an offer of proof was made for both witnesses. However, the Stewards contend that more is necessary: the party offering the excluded testimony must urge on appeal the same bases of admissibility that were presented to the trial court. At least two of the cases cited by the Stewards appear to support this rule of law (Crimp v. First Union Trust & Savings Bank (1933), 352 Ill. 93, 98; Dirksmeyer v. Barnes (1954), 2 Ill. App. 2d 496, 508-09, 119 N.E.2d 813, 818), although in the latter case an offer of proof was also missing. Dirksmeyer relies upon the general proposition that a point not raised in the trial court cannot be urged on appeal. (Dirksmeyer v. Barnes (1954), 2 Ill. App. 2d 496, 509, 119 N.E.2d 813, 818; see Board of Education v. Kusper (1982), 92 Ill. 2d 333, 343.) Thus, although the authority is scant, the offeror of excluded testimony is generally limited on appeal to those grounds for admissibility raised in the trial court. See 5 Am. Jur. 2d Appeal and Error sec. 604 (1962).

The trial court’s remarks in striking Lynn’s testimony seem to indicate that that court did not deem the proffered testimony relevant. In order to acquire an easement by prescription, a claimant must show that the use of the land was, among other things, adverse. (Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647.) To meet the requirements of adverse use, the use must be with the knowledge and acquiescence of the owner but without his permission. (Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647.) If it can be shown that the use has been made pursuant to the permission of the owner of the servient estate, it cannot be classified as being adverse. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424.) Such permission may be established by a written or oral license or may be inferred from the surrounding circumstances. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424.) Where there is proof of a parol agreement to use a way, the use has been by license rather than adversely or by claim of right and a prescriptive right has not been established. See Mueller v. Keller (1960), 18 Ill. 2d 334.

Here, evidence of an oral agreement between Rex Light and Don Adams for the use of the lane was relevant to disprove adversity in Adams’ use of the lane. Since the Stewards have owned their land just since 1978, it was necessary for them to show adversity not only of their use, but also of their predecessor in title to the dominant estate, Don Adams. Thus, the proffered testimony was relevant to whether use of the lane had been adverse for 20 years.

The Stewards argued at trial and again on appeal that they have established an easement by prescription in their own right for 20 years as well as by tacking Adams’ ownership years to their own. An acceptance of this argument might explain the trial court’s remarks to the effect that only what the Stewards knew was relevant. However, this argument cannot succeed. The Stewards’ pleadings asserted prescriptive use only by means of tacking their period of use to Adams’. Moreover, an easement of the nature of the one claimed here, where it is exercised in connection with occupancy of other land and where one terminus of the claimed easement is on the land of the party claiming it, is considered as appurtenant rather than one in gross. (Taylor v. Lanahan (1979), 73 Ill. App. 3d 829, 392 N.E.2d 425.) Prior to 1978, the Stewards had no land to which the easement right may have been appurtenant. The Stewards’ use of the lane prior to their 1978 acquisition of the neighboring land was as guests of the Adamses. As such, that use could not satisfy the exclusivity element of a prescriptive easement. Exclusivity means that the claimant’s rights do not depend upon the rights of others, such as the Adamses. (Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647.) Since prescriptive use for 20 years could not be shown in the Stewards alone, evidence relating to the nature of Don Adams’ use was necessarily relevant to the question of whether a prescriptive easement had been established.

The issue of the inapplicability of the Dead Man’s Act has not been waived by the Lights because it was raised at trial. The Dead Man’s Act is very limited and is inapplicable to the testimony of Chester Lynn and Warren Duclon for several reasons. The reason raised at trial is sufficient to dispose of the issue here: the statute applies only to a “civil action in which any party sues or defends as the representative of a deceased or incompetent person.” (Ill. Rev. Stat. 1981, ch. 51, par. 2.) Don Adams is the deceased person whose conversations are at issue and no party here either sues or defends as his representative.

With regard to hearsay, the Lights now urge for the first time that the testimony of Lynn and Duclon does not constitute hearsay evidence. Pursuant to the previous discussion, this argument was waived as not having been offered at the trial. Further, the other two hearsay exceptions now urged by the Lights to justify use of Lynn’s and Duclon’s testimony, declarations as to private boundaries and declarations by persons in possession of property, were clearly not raised in the trial court and therefore were waived. The trial court’s exclusion orders are affirmed because the Lights failed to preserve the correct grounds for admissibility.

Easement Of Necessity

The Lights contend that the trial court’s order cannot be sustained on the basis of a finding of an easement by necessity. The Stewards’ original counterclaim sought declaration of an easement on two grounds: easement of necessity by implication and easement by prescription. Their amended counterclaim, upon which the case was tried, relied solely upon the prescription theory. In its oral ruling of March 5, 1982, the trial court relied on both theories in finding an easement, as is manifested by the following excerpt:

“I — I do feel that this has gone on — it went on for a long enough period of time that they meet the requirements — that the defendants have met the requirements by tacking to gain an interest by prescription — at least by prescription over the plaintiffs’ property. His — the plaintiffs’ Complaint for Injunction is denied. The defendants’ Counterclaim, Easement of Necessity — although it’s not really set forth that way in the — in the Counterclaim itself — it doesn’t really say it’s of necessity, but it is obvious from the evidence that it is of necessity — is granted subject to reasonable restrictions.”

The trial court’s written orders of March 19, 1982, and September 9, 1983, make no reference to the theory relied upon. They do, however, declare an easement by way of entering judgment for the Stewards on count I of the amended counterclaim, a count which relies solely upon the prescription theory.

Actually, there is no “easement by necessity.” An easement must be founded on a deed or other writing, or on prescription, which presumes a previous grant. (The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc. (1954), 4 Ill. App. 2d 454, 124 N.E.2d 649.) Necessity is one element of an “easement of necessity by implication,” a doctrine based upon implying the intent of the parties to a conveyance by which one parcel is separated from another to grant or reserve an easement. (See Frantz v. Collins (1961), 21 Ill. 2d 446.) Essential elements which must exist to establish an easement by implication are: (1) there must be unity of ownership and separation of the title; (2) before separation occurs, the use which would give rise to an easement must have been so long continued, obvious or manifest to that degree which will show the use was meant to be permanent; and (3) it is necessary that the use of the claimed easement be essential to the beneficial enjoyment of the land granted or retained. O’Hara v. Chicago Title & Trust Co. (1983), 115 Ill. App. 3d 309, 450 N.E.2d 1183.

Here, at least one essential element for this type of easement was neither pleaded nor proved: unity of ownership and separation of title. Proof as to the existence of a common grantor is generally considered necessary to establish this element. (Zacny v. Sasyk (1975), 30 Ill. App. 3d 93, 332 N.E.2d 568.) No such evidence was introduced. Thus, whether or not the use of the lane was necessary for the Stewards’ enjoyment of their land, they did not establish an easement of necessity by implication.

Easement By Prescription

The Lights further contend that defendants have failed to establish an easement by prescription. In order to acquire an easement by prescription, a claimant must show that the use of the land was adverse, exclusive, continuous and uninterrupted, and under claim of right for a period of at least 20 years. (Petersen v. Corrubia (1961), 21 Ill. 2d 525; Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647.) Where there has been privity between the users of the property, periods of use may be tacked together in order to satisfy the required prescription period. (Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424.) At issue here were the elements of adversity and exclusivity and whether the Stewards needed to and did successfully tack the period of use by Don Adams to their own.

With regard to the necessity to the Stewards’ case of tacking Don Adams’ period of use to their own, this question has already been discussed in relation to the relevance of the proffered testimony of Chester Lynn and Warren Duclon. Since the Stewards could not establish prescriptive use for 20 years solely by themselves, they must rely upon Adams’ use of the lane during his period of owning the southern tract.

In order to rely on Adams’ period of use, defendants Stewards must have shown privity between themselves and Adams. The requisite of privity exists when the latter user has succeeded to the interest of the earlier user by inter vivos conveyance, by descent, by devise, or by involuntary conveyance. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424.) Privity was established here by the Lights’ stipulation that Don Adams’ property passed to his wife, Lillian Adams, upon the former’s death in 1977 and by defendants’ exhibit No. 12, a copy of the deed by which Lillian Adams conveyed the property to the Stewards.

With regard to the exclusivity factor, the Lights point out that many others besides Don Adams and the Stewards used the lane over the last few decades. However, as has been pointed out in relation to the Stewards’ use during the period of Don Adams’ ownership, the use of the lane by the others was as guests of the owners of the southern tract. To establish exclusivity, it is not necessary to show that only the claimant has made use of the way, because exclusive use means that the claimant’s right to use the lane does not depend upon a like right in others. (Leesch v. Krause (1946), 393 Ill. 124; Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647.) The Stewards’ use of the lane from 1978 and the Adamses’ use prior to that were in their own right, independent from any other.

The most difficult question here relates to whether adversity was established. Whether there was adverse use of a way or the use of the way was only permissive is a question of fact for the trial court which will not be disturbed unless manifestly against the weight of the evidence. (Petersen v. Corrubia (1961), 21 Ill. 2d 525; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424.) To meet the requirements of adverse use, the use must be with the knowledge and acquiescence of the owner but without his permission. (Healy v. Roberts (1982), 109 Ill. App. 3d 577, 440 N.E.2d 647.) Where the evidence shows that a use is merely permissive from the owner, the use is not adverse and furnishes no basis upon which a right of way by prescription can rest. Mueller v. Keller (1960), 18 Ill. 2d 334; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424; Rita Sales Corp. v. Bartlett (1970), 129 Ill. App. 2d 45, 263 N.E.2d 356.

Here, the Lights maintained that Don Adams’, and subsequently the Stewards’, use was permissive because of an oral agreement under which Adams could use the lane for access in return for allowing the Lights to graze cattle. The Lights’ attempt to prove the existence of this agreement through the testimony of Chester Lynn and Warren Duclon was disallowed by the trial court, and we have affirmed that exclusion. However, Rex Light also mentioned the agreement in his testimony. During his direct examination, Light was asked about a conversation with Carl Steward. Light testified that he had told Steward about his agreement with Don Adams under which Adams could use the lane in exchange for permitting Light’s cattle to graze on Adams’ land. Light had received the impression that Steward agreed to the same arrangement.

The Lights now attempt to characterize this testimony as a direct assertion by the witness of the existence of the agreement mentioned. However, a close reading of the record reveals that Light merely testified to what he told Steward. Nowhere does it appear that Light testified directly about his oral agreement with Don Adams.

Carl Steward, on the other hand, testified that Rex Light never told him about the previous agreement, that he himself had no agreement with Light about use of the lane, that he had never asked for permission to use the lane, that he was aware of no agreement, and that he was not aware of anyone ever asking permission. June Steward made similar denials. Francis Linder, Howard Black, and Polly Knous, three people who frequently used the lane as guests of Don Adams, each testified for the Stewards that he or she knew of no agreement or request for permission to use the lane by anyone.

It can be seen, then, that the evidence is conflicting on whether Rex Light and Carl Steward came to an agreement. The testimony of each party is positive and directly contradictory of the other. In light of this, the trial court could have justifiably believed Steward and found that the Stewards’ use was adverse.

With regard to Adams’ use, the witnesses for the Stewards could not deny the existence of an agreement for permissive use, but could only deny awareness of such an agreement. Because of this, their testimony should be characterized as negative and would not be entitled to the same weight as positive testimony of the agreement’s existence. (West Chicago Street R.R. Co. v. Mueller (1897), 165 Ill. 499; see Bontz v. Stear (1918), 285 Ill. 599, 602, where testimony of a witness to the oral grant of permission to use a road claimed as an easement was “not refuted except in the negative manner by witnesses who stated that they did not hear conversations between these parties concerning this road.”) However, the Lights failed to produce positive testimony of the agreement’s existence. The testimony of Lynn and Duclon was excluded and Rex Light did not directly assert that he gave Don Adams permission to use the lane.

While the burden of proof is on the party claiming the prescriptive right (Castle v. Yenerich (1981), 95 Ill. App. 3d 39, 419 N.E.2d 677), the law recognizes rebuttable presumptions with regard to the establishment of adversity. Where a way has been used openly, uninterruptedly, continuously and exclusively for more than 20 years and the origin of such way is not shown, there is a rebuttable presumption of adversity. (Petersen v. Corrubia (1961), 21 Ill. 2d 525; Mueller v. Keller (1960), 18 Ill. 2d 334.) However, the use of vacant and unenclosed land is presumed to be permissive and not adverse. (Poulos v. F.H. Hill Co. (1948), 401 Ill. 204; Monroe v. Shrake (1941), 376 Ill. 253.) Thus, the presumption of adversity is not applicable to vacant and unenclosed land. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424; Rita Sales Corp. v. Bartlett (1970), 129 Ill. App. 2d 45, 263 N.E.2d 356.) Nor can the presumption of adversity be employed where there is evidence showing the origin of the alleged easement. Rita Sales Corp. v. Bartlett (1970), 129 Ill. App. 2d 45, 263 N.E.2d 356.

The parties make much of whether the lane was enclosed. The evidence is clear that the Lights have maintained a gate at the north end of their property for well over 20 years, although it was not locked until the present controversy erupted. Moreover, the land was not vacant, as evidenced by the fact that the way ran by the Lights’ residence on the northern tract. Therefore, the use cannot be presumed permissive.

The only possible evidence showing the origin of the alleged easement or rebutting the presumption of adversity related to the alleged agreement between Rex Light and Don Adams. Because the trial court’s exclusion of the testimony of Chester Lynn and Warren Duclon must be sustained and this court agrees that Rex Light did not directly assert the existence of the agreement, the presumption of adversity applies and the trial court must be affirmed.

The circuit court of Winnebago County’s finding of an easement cannot be sustained on the easement of necessity by implication theory because the element of unity of title was neither pleaded nor proved. The finding of easement by prescription is affirmed, however, because of the failure of plaintiffs’ evidence on permissive use. The proper bases for admitting the testimony regarding an agreement showing the use to be permissive were not presented to the trial court and therefore were waived for purposes of consideration of the alleged error on appeal.

Affirmed.

UNVERZAGT and SCHNAKE, JJ., concur.


author: JUSTICE PERLIN

text:
    ANNA LANDO, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (2nd Division)
    No. 84—548
    Opinion filed October 30, 1984.

      Jacob N. Gross, Ltd., of Chicago (Terence J. Tyksinski, of counsel), for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen K. Ivory, Assistant Corporation Counsel), of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Anna Lando (plaintiff) appeals from an order entered on January 31, 1984, by the circuit court of Cook County which dismissed with prejudice her cause of action seeking damages for personal injury from the defendant, city of Chicago (city). The trial court found that plaintiff’s notice to the city failed to comply with the notice provisions of the Local Government and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102). On appeal, plaintiff contends: (1) that her notice of injury “substantially complied” with the requirements of the Act; (2) assuming arguendo that her notice did not constitute substantial compliance, the information conveyed in subsequent letters served to “amend” her initial notice and cured any defects in the notice; and (3) the report of the city of Chicago paramedics constituted “actual notice” sufficient to cure any defects in her written notice.

On March 26, 1982, plaintiff tripped and fell on a “sidewalk •ramp” at the southeast corner of Washington Street and Wabash Avenue in Chicago. She was transported by the Chicago fire department mobile intensive care unit (paramedics) to Northwestern Memorial Hospital.

On May 14, 1982, plaintiff sent by registered mail a “Notice of Claim for Personal Injuries” (notice) to the city clerk and to the corporation counsel, pursuant to section 8 — 102 of the Act, which provides:

“Within 1 year from the date that the injury or cause of action, referred to in Sections 8 — 101, 8 — 102 and 8 — 103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, ***, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom *** the action is contemplated, a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102.)

In addition, section 8 — 103 of the Act states:

“If the notice under Section 8 — 102 is not served as provided therein, any such civil action commenced against a local public entity, ***, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.” (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 103.)

The notice sent by plaintiff, however, failed to include two elements of information required by the Act: the general nature of the accident, and the name and address of the treating hospital.

On August 17, 1982, plaintiff sent by regular mail letters, identical in content, to the city clerk and the corporation counsel detailing her medical expenses resulting from the accident, including $9,508.90 to Northwestern Memorial Hospital. Each letter also contained the following paragraph:

“Mrs. Lando incurred comminuted four part fracture of her left proximal humerus requiring a left shoulder prosthesis and rotator cuff repair. ***.”

On September 27, 1983, approximately 18 months after the accident, plaintiff filed a personal injury action against the city. On November 7, 1983, the city filed a motion to strike plaintiff’s complaint and dismiss plaintiff’s action, contending that she had failed to comply with the Act in that she had not included in her notice the general nature of her accident. In her first amended response to the city’s motion, plaintiff asserted that when the letters sent to the clerk and the corporation counsel were read in conjunction with her original notice she had “substantially complied” with the requirements of the Act. In her second amended response, plaintiff alleged that the city had “actual notice” of the general nature of her accident based on the reports of the paramedics who transported her to Northwestern Memorial Hospital and that this was sufficient to cure any defects in her written notice.

Following a hearing on the city’s motion, on January 31, 1984, the trial court entered an order striking plaintiff’s complaint and dismissing with prejudice plaintiff’s action against the city for failure to comply with the Act. Plaintiff appeals.

The first issue before this court is whether plaintiff “substantially complied” with the requirements of section 8 — 102 of the Act. The purpose of the notice statute is not to give the local public entity notice that an injury has occurred, but that a person is about to commence a civil action for damages on account of such injury. (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89.) “Substantial compliance” sufficient to satisfy the purposes of the Act has been found in certain cases where there has been “some attempt” to comply with the requirements of the statute. (Minnis v. Friend (1935), 360 Ill. 328, 196 N.E. 191.) More recently, “substantial compliance” with the requirements of section 8 — 102 has been defined by this court as follows:

“ ‘The statute is strictly construed to require that the written notice must contain each of the essential elements therein set forth. A notice which completely omits one or more of the essential elements is insufficient. On the other hand, the statute is to be liberally construed with respect to the sufficiency of the elements as set forth in the written notice. Where the particular element as set forth is reasonably sufficient to fulfill the requirements of the statute and where the public entity has not been misled or prejudiced thereby, the notice itself is sufficient.’ ” Smith v. City of Chicago (1980), 92 Ill. App. 3d 247, 250, 416 N.E.2d 20, 22, quoting Bickel v. City of Chicago (1975), 25 Ill. App. 3d 684, 692, 323 N.E.2d 832, 837.

It appears that two things are necessary in order to “substantially comply” with the requirements of section 8 — 102 of the Act: first, each element of information required by the Act must be included in the written notice; second, each element must be set forth with sufficient clarity and accuracy so as not to mislead or prejudice the public entity. In the instant case, plaintiff admits that the nature of her accident as well as the name and address of the treating hospital were omitted from her original notice. She asks this court to find “substantial compliance” on the basis of her later letters which allegedly supplied the omitted information, thus protecting the city from any prejudice due to her original omission. However, in order to do so we would have to find that the letters sent by regular mail on August 17, 1982, were sufficient to “amend” plaintiff’s original notice. This we cannot do, since even assuming that the letters supplied the missing elements of information, they were not delivered, as is required by the statute, by personal service, or registered or certified mail. Thus, plaintiff has failed to meet the initial requirement of “substantial compliance.” Where, as here, an element has been completely omitted from the formal notice required by section 8 — 102 of the Act, a plaintiff will not be found to have substantially complied with the Act.

Next, plaintiff contends that any defects in her written notice were cured by actual notice imputed to the city from the report of the paramedics who conveyed her from the scene of the accident to Northwestern Memorial Hospital. A decision of the fourth district of this court, Mounce v. City of Lincoln (1978), 64 Ill. App. 3d 461, 381 N.E.2d 421, appeal denied (1979), 72 Ill. 2d 582, involved similar facts. After being injured in a public parking lot, Mounce served the city with notice pursuant to section 8 — 102 of the Act. As in the present case, Mounce did not include the general nature of her accident or the name and address of the treating hospital. However, it was established that within one week of the accident Mounce had telephoned two aldermen and the mayor, informing them of the details of her accident and the name of the treating hospital. The court affirmed the circuit court’s dismissal of Mounce’s action for failure to comply with the Act, quoting the supreme court in Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 361, 282 N.E.2d 437:

“ ‘Section 8 — 102 is unambiguous and clearly expresses the legislative intent that a local public entity be given certain information, in writing, within the time provided, and we hold that the allegation of actual notice does not satisfy the statutory requirement of written notice.’ [Citation.]” Mounce v. City of Lincoln (1978), 64 Ill. App. 3d 461, 464.

The court in Mounce noted that the supreme court had reached a similar decision in Zavala v. City of Chicago (1977), 66 Ill. 2d 573, 363 N.E.2d 848, where the plaintiff had failed to include the names and addresses of the treating hospitals in her notice pursuant to section 8 — 102 of the Act. Despite the existence of a Chicago police department report which contained the name and address of at least one of the hospitals, the court held that plaintiff had failed to comply with the requirements of the Act and affirmed the dismissal, with prejudice, of her cause of action.

Applying the holdings of Mounce and Zavala to the instant case, it is clear that actual notice is not sufficient to satisfy the requirements of the Act. Thus, the circuit court did not err in dismissing plaintiff’s cause of action with prejudice for failure to comply with the notice provisions of section 8 — 102 of the Act.

Finally, plaintiff contends that because the city did not raise in the trial court the fact that the name and address of the treating hospital had been omitted from her notice, they are precluded from raising it on appeal. However, since our decision in the present case would be the same if only the general nature of her accident had been omitted, we need not address this contention.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

STAMOS and DOWNING, JJ., concur.

      The report filed by the paramedics stated that plaintiff fell on her arm.

      We believe the instant situation is readily distinguishable from that in Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89, and Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 348 N.E.2d 176, where the actual filing of a complaint within the statutory period was found to satisfy the requirements of the notice statute. In those cases the court stated that the statutory purpose of timely notice of injury had been accomplished because of the discovery available to the defendant.