author: JUSTICE LINN

text:
      In re MARRIAGE OF BARBARA REIB, Petitioner-Appellant, and WILLIAM N. REIB, Respondent-Appellee.
    First District (4th Division)
    No. 81—2491
    Opinion filed May 19, 1983.
    Feiwell, Galper & Lasky, Ltd., of Chicago (Bernard L. Rivkin, of counsel), for appellant.
    Kaufman and Litwin, Ltd., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, Barbara Reib, appeals from those portions of the judgment for dissolution of marriage pertaining to the award to her of marital property and maintenance. Petitioner contends that (1) the trial court failed to value the parties’ assets properly, and (2) the award of maintenance set by the trial court was inadequate.

We reverse and remand.

Barbara and William Reib were married on March 28, 1954. Two children were born of the marriage, both of whom are now adults, and two children were adopted, both presently minors. In November 1979, Barbara filed her petition for dissolution of marriage. In December 1980, after a hearing, the court entered an order finding grounds to dissolve the marriage and reserving the remaining issues for future determination. Thereafter, a contested custody hearing was held, after which the trial court awarded custody of the two minor children to William.

At the subsequent trial relating to division of property and the award of maintenance, the following relevant evidence was adduced:

William Reib testified that, at the time of his marriage, he individually owned various savings accounts and securities, and with his father he owned a partnership enterprise. However, he could not place a value on any of these assets.

In 1959, William and his father formed an insurance agency, Reib and Reib, Inc. At that time, William’s father owned a percentage of the shares. William subsequently purchased all of his father’s shares and now owns 100% of the business. The corporation does not have any employees, since individuals who work for the agency perform services only for specific clients. The clients pay salaries directly, and the salary payments are deducted from the commissions and fees that the corporation earns.

The corporation’s 1979 income tax returns revealed that it had total assets of $1,965,924 and retained earnings of $299,914, an increase of approximately $44,000 from the prior year. For 1979, the corporation declared total receipts of $231,762. From this, deductions of $186,700 were claimed, including $98,041 in commissions, sales promotions of $10,473, and $8,752 for leasing a Mercedes-Benz driven by William. Thus, the agency had a net taxable income of $45,062 in 1979.

The parties’ 1979 joint income tax return declared total taxable income of $107,944 and income taxes due on that income in the amount of $17,065. The Schedule C income of $137,941 was derived from commissions and management fees. From this, William deducted $49,358, for a net profit of $88,583. William deducted $26,889 in expenses for travel, entertainment, meetings, lunches, dinners, and telephone. William also earned a one-time fee of $36,000 from Main Insurance Company, a subsidiary of Mainway Financial Corporation, which is wholly owned by William through Reib and Reib. In 1979, William “borrowed” $9,000 from Reib and Reib, which was not declared as income. At the end of that year William owed the agency a total of $119,242.

In 1972, William obtained two loans from the North Bank in the amount of $500,000 in order to purchase the stock of Mainway Financial Corporation. These loans have a current outstanding balance of $191,927. Various securities are pledged for the loans, including 8,333 shares of Main way stock, 7,002 shares of Executive Life Insurance of New York, 332 shares of Weyerhauser Company, and 824 shares of Mid-America National Bank of Chicago. A third loan at the North Bank, obtained by Reib and Reib, Inc., and personally guaranteed by William, has a current balance of $168,034 and is secured by 19,678 shares of Mainway stock.

In addition to the stocks pledged to the North Bank, William also owns three shares of IBM stock, $5,000 in other stock that had been held jointly with his mother and father, and a 4.5% interest in Peter Morton’s Father’s Place, Inc., valued at $27,000.

William holds $60,000 in United States government bonds, which have been pledged as collateral for a letter of credit with Lloyd’s of London. The letter of credit is in connection with his participation in an insurance underwriting syndicate for Lloyd’s of London. The interest that he receives from the government bonds is credited to an account maintained for him. Through the Banker’s Trust Company, he has a percentage interest in a special Lloyd’s of London reserve fund held in the Cayman Islands. In 1979, William earned $5,600 in interest income from the bonds, and $15,430 from Lloyd’s of London.

In 1968, the marital residence, located in Wilmette, Illinois, was purchased: The appraised value of the home at the time of trial was $300,000, with an outstanding indebtedness of $118,854. Of this indebtedness, $48,000 had been borrowed in 1976, but only $8,000 of this amount was used for remodeling the residence. Most of the funds were used for personal expenses and the purchase of $24,000 in government bearer bonds. William testified that the bonds were a gift to the four children, but were kept by him in a safe deposit box at a bank.

William established a Keogh retirement account, which has a current balance in excess of $37,600 and which matures in 1983. Since William is over 59V2 years of age, there are no income tax penalties for withdrawal of these funds.

In 1981, William executed an installment note, payable to DeNovo Enterprises, in the amount of $24,278. In addition, he is currently in litigation with Exchange National Bank over a note personally signed by him for the sum of $42,500.

In 1978, William’s mother had purchased a one-bedroom condominium at 100 East Walton in Chicago for $54,000. This property had been placed in trust, with Williams having a one-fifth interest and holding the remaining four-fifths as trustee for the four children. The apartment was occupied by William’s mother until her death in 1980, and is presently vacant.

William is the executor of his mother’s estate and the sole trustee of 26 trusts. The value of his mother’s estate was $143,000, of which William is the lifetime income beneficiary with the right to invade principal.

William has traveled extensively. In April 1979, he went to Disney World for a week with the children. In December 1979, he took another 10-day trip to Florida. In April 1980, he went to Hawaii with his daughters for a week. In June 1980, William traveled to Florida and the Cayman Islands. In June 1981, William again went to the Cayman Islands and Disney World with all of the children.

William testified that his monthly expenses for the two minor children totaled $2,322. He arrived at these figures by allocating one-half of the mortgage, real estate taxes and other home expenses to the children. Additionally, he allocated $430 per month for a housekeeper in addition to the expenditure for a cleaning lady. Miscellaneous expenses claimed for the children were $250 per month.

Mayo C. Walcott, president of the North Bank, testified that all of the bank’s loans to William and to Reib and Reib, Inc., are delinquent. However, he expected that the loans will not result in any losses to the bank.

Walcott testified that there is no stated market value for Executive Life Insurance stock, but it was valued by the bank at $14 per share. Similarly, Mid-America Bank stock was valued at $36 per share. The listed market value of Weyerhauser stock was $33.58 per share.

Walcott further testified that he understood that Mainway Financial Corporation was a holding company whose principal asset was Main Insurance Company. Main Insurance is in rehabilitation with the State insurance commissioner, which means that the insurance commissioner has taken control of the insurance company to determine whether it has sufficient assets to cover liabilities. As a result, the bank considered Mainway valueless.

Barbara Reib testified that after she married William in 1954 she worked for William’s father, performing minor office work. She became pregnant after six months of marriage and did not work thereafter for 22 years. She was exclusively a homemaker during this time, raising her children. It wasn’t until 1976, when she obtained a real estate license, that she resumed employment with a realty company. In 1976, she received commissions of $55. She received no commissions in 1977, and commissions of $6,300 in 1978. For the past two years, she has been employed full time at the National College of Education in Evanston as a secretary and receptionist. Barbara receives a gross salary of $826.66 per month, and a net income of $620 per month. As a benefit of her employment, her son Michael is allowed to attend school tuition-free.

During the marriage, Barbara had total control over the management of the house and the care of the four children. She was also responsible for caring for William’s mother. Barbara frequently entertained William’s business associates. By mutual agreement, she had live-in help at all times, and occasionally employed two housekeepers. Her recent employment did not affect her domestic responsibilities.

During the marriage, Barbara enjoyed the use of numerous credit cards and accumulated an extensive wardrobe. William imposed no limitation upon her expenditures, and Barbara spent approximately $40,000 a year for her own support.

Barbara further testified that her current monthly living expenses totaled $3,275 per month. These expenses included her apartment rent of $820 per month and her estimate of expenses for medical care. Barbara had cancer which required a mastectomy operation in 1978, and has subsequently undergone two more surgeries. She sees her surgeon every three months and her physician every six months. Barbara stated that her estimate of expenses is based on a standard of living lower than she had enjoyed during the marriage. At the time of trial, Barbara had outstanding bills in excess of $2,000.

Barbara has often vacationed in Europe, and the parties have traveled extensively together on business. In the past two years, she has taken numerous vacations in Michigan and Wisconsin.

At the close of the evidence, the trial court found that the parties’ marital debts and obligations far exceeded the value of their marital assets and entered a judgment for dissolution of marriage that incorporated that finding. The trial court awarded William all of the parties’ assets, except that Barbara was awarded the 1978 Buick station wagon that she drove, the bank account in her name, which had a balance of $2,000, and $32,500 that was to be paid to her upon the sale of the marital residence. William was to be responsible for all of the marital debts and all corporate and personal obligations. In addition, William was ordered to pay maintenance of $800 per month to Barbara.

I

Barbara argues that the trial court erred in its award of property because the evidence failed to establish the value of the parties’ assets. Specifically, she contends that the trial court was not presented with evidence of the value of Mainway Financial Corporation, Reib and Reib, Inc., and William’s participation in the Lloyd’s of London insurance syndicate, as well as the current value of William’s interest in the Walton Street condominium and various stocks. Barbara asserts that as a result of the failure to value the parties’ assets properly, there was an insufficient basis upon which to find that “the marital debts and obligations of the parties hereto far exceed the value of the marital assets of the parties.” It is therefore urged by Barbara that the cause be remanded for further hearings in order to determine the value of various property.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503) requires that the trial court divide the marital property between the spouses in “just proportions” without regard to fault. In order to apportion marital assets under section 503, the proper value of such assets must be established. (In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.) Where evidence in the record as to proper valuation is lacking, there is no basis upon which a reviewing court can determine the propriety of the trial court’s award of marital property. (In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96; In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006.) In addition, the failure to offer evidence of the value of such assets does not waive the right to appeal on this issue. (In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777.) Thus, absent sufficient evidence of the present value of the assets, an award by the trial court which apportions the disposition of property is inappropriate under section 503 of the Act. In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 432, 426 N.E.2d 1087; In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777.

In the present case, the only apparent basis for the trial court’s finding that the parties’ marital debts exceeded their marital assets was the evidence pertaining to the rehabilitation of Main Insurance. William argues that a claimed stipulation entered before the trial court that the insurance company is worthless is conclusive and binding upon the parties. The stipulation, orally entered into at trial, provided:

“Mr. Litwin: Okay. Let me give you the stipulation. I think we have it. Mr. Abramson would testify to the matters set forth in the written stipulation, which I have signed and which counsel has signed, and which we will tender to the Court, the essence of which is that a certain Main Insurance Company, which is an asset listed on the balance sheet — actually, the stipulation, it’s Main way Financial Corporation, of which Main Insurance is a subsidiary.
Mr. McNulty: Yes, I understand that.
Mr. Litwin: So the stipulation should be modified in that regard. But the gist of the stipulation is — Now, the gist of the stipulation is that Main is in rehabilitation, and Mr. Abramson would testify that the value of that particular asset is zero, that the debts exceed its value. That is an asset which is listed on the Reib and Reib balance sheet, which is part of the corporate return of Reib and Reib, and which was listed some time ago at some six hundred and fifty odd thousand dollars, if I’m not mistaken.”

Even if, in fact, Main Insurance was considered valueless at the time of trial, there was an absence of any evidence to indicate the value of the other subsidiaries, which Mayo Walcott testified are part of Mainway Financial Corporation. Thus, while the value of Main Insurance properly could have been discounted entirely, the trial court still lacked a proper foundation on which to base a determination that there was no value to the holding company. Without consideration of the remaining values to the parent company, it was inappropriate to ascribe no value to it in determining the apportionment of marital property. We note, further, that even assuming the quoted language is in the nature of a stipulation, at best the stipulation related to what the witness would testify — not that the testimony was true or accurate.

Similarly, and partly as a result of the failure to value Main-way Financial, the evidence at trial did not establish the value of Reib and Reib, Inc. While the income and assets of that business were presented through the introduction of its 1979 corporate income tax returns, there was no other evidence presented regarding its value as a business entity.

Stock in a corporation is usually valued at its market value: that price which a willing purchaser will pay to a willing seller in a voluntary transaction. (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488; In re Estate of Voss (1973), 55 Ill. 2d 313, 303 N.E.2d 9.) Also, the value of a closely held corporation, such as Main-way Financial or Reib and Reib, is not necessarily the book value of its assets, although book value may be of importance in ascertaining market value. It is desirable that valuation based upon market value be determined as accurately as is professionally possible using such business and accounting expertise as may be available:

“In a close corporation the corporation’s shares are not listed on a stock exchange or actively dealt in by brokers and, therefore, there is no established market for the corporation’s stock. (See generally, 1 F. Hodge O’Neal, Close Corporations sec. 1.07 (1971).) The shareholders of a close corporation, however, like those of any corporation, do realize a value from stock ownership in that they have certain rights of control or future profits. Furthermore, courts have recognized an ascertainable value for shares of stock in closely held corporations. Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 371 N.E.2d 1228; Stewart v. D. J. Stewart & Co. (1976), 37 Ill. App. 3d 848, 346 N.E.2d 475; Flynn v. Zimmerman (1960), 23 Ill. App. 2d 467, 163 N.E.2d 568.” In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 635, 397 N.E.2d 488, 494.

We also note that at trial there was presented a financial statement William had prepared that included the value of Reib and Reib as of December 31, 1978, at $150,000, and set out William’s net worth as being $423,000. This financial statement attributed no value to the shares owned in Mainway Financial. As indicated, there was a lack of evidence presented to suggest the current value of Reib and Reib, and there was no evidence presented which could allow the conclusion that additional debts had accumulated. Thus, the trial court was not presented with evidence which would justify the determination that the parties’ debts exceeded their marital assets. Necessarily, the cause must be remanded for a further evidentiary hearing in the respects noted.

Further, the evidence presented at trial was insufficient to establish the value of William’s participation in the Lloyd’s of London insurance syndicate. It was uncontroverted that government bonds in the amount of $60,000 were deposited by William to secure a letter of credit and thus allow William to participate in the Lloyd’s of London insurance syndicate. William argues that his participation in that syndicate is not transferrable and is only a vehicle for future earnings, and therefore cannot be described as an asset constituting value except for the $60,000 in bonds. However, this argument overlooks the fact that participation in the syndicate is similar to any other business investment that may have value well in excess of the initial amount invested. It is the very uncertainty of the value of this apparently substantial property interest that consequently requires, in the interest of establishing value of marital property, that additional evidence be taken. Further support for this view is found in the fact that interest earned on the bonds is paid to William in addition to the income derived from the insurance underwriting activities. There was a complete absence in the record of evidence to indicate the value of this asset, and we therefore necessarily conclude that the cause must be remanded for purposes of ascertaining the value of this interest.

With respect to Barbara’s contention that the evidence did not establish the value of William’s interest in the Walton Street condominium, we note that the trial court was apprised of its purchase price in 1978 and of William’s 20% interest in the property. It has been held that real estate, unlike stock, has a fairly stable value, and past valuation can give the trial court a sufficient idea of its worth. (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488.) This court cannot hold that the condominium appreciated in value since its purchase. However, the trial court should, upon remand, hear evidence as to its current valuation.

Insofar as valuation of the IBM stock is concerned, the failure to value three shares would hardly constitute a basis for reversal and remand. However, since the cause must be remanded in any event, evidence as to the market value of this asset may be considered as well.

Although this cause must be remanded for further hearings to determine the value of the various assets, we are constrained to comment upon the numerous similar cases which previously have been presented to this court for review. All too often, the parties’ failure to present evidence of the value of property has resulted in reversal of the trial court’s judgment. The consequence of such omissions is unnecessary and protracted litigation, which serves neither the parties nor the court. A second hearing is required to determine that which should have been determined during the initial proceedings.

In In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54-55, Justice Rizzi aptly stated:

“We here opine that this case presents a situation which this court sees all too often in dissolution cases. Despite the fact that numerous hearings regarding the division of property were held and that only a limited amount of property was involved, neither party presented the trial court with solid evidence of the properties’ value so that the court could make the fairest possible division of the parties’ assets. We again emphasize that it is the parties’ obligation to present the court with sufficient evidence of the value of the property. Reviewing courts cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 209; see In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 341, 417 N.E.2d 220, 223.) Remanding cases such as the one before us would only protract the litigation and clog the trial courts with issues which should have been disposed of at the initial hearing. As the trial court here said after numerous hearings in this case, at some point we must ‘ring the curtain down.’ ”

In Smith, there was some credible evidence presented to suggest the value of the parties’ assets, and therefore the judgment was affirmed. In the instant case, while the trial court did conduct hearings and made findings that should have been conclusive, the absence of sufficient credible evidence to establish the valuation of several major assets mandates reversal of this cause. Without such evidence, there is no support for the court’s finding that the parties’ debts and obligations far exceed their assets. We believe that it would be a harsh, inequitable, and legally inappropriate result to affirm this finding and the consequent apportionment of property embodied in the judgment for dissolution without an adequate basis in the record to support that determination. Necessarily, we find that the trial court’s conclusion as to the financial status of the parties was contrary to the manifest weight of the evidence.

II

Barbara also contends that the award of maintenance to her was inadequate. In In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006, which also coincidentally involved the value of an insurance business, the court remanded the cause with specific instructions to take evidence establishing valuation in order to determine a just award of maintenance. It was held that, under the statutory scheme of the Act, issues of maintenance and child support relate directly to the final property disposition, which must be reached first. See also Ill. Rev. Stat. 1981, ch. 40, pars. 503, 504.

In the present case, the award of maintenance must be reversed and the cause remanded to determine a proper amount that Barbara is to receive for maintenance. Such award is to be granted subsequent to evidence being presented as to the value of the parties’ various assets and after a division of marital property. Upon remand, the trial court should be guided by the standards enunciated in section 504 of the Act and what we have stated in In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1087, 412 N.E.2d 1336, 1343-44:

“We believe that except where the financial situation of the paying spouse, the duration of the marriage, or the health of the parties otherwise indicates, section 504(b) requires that the amount of maintenance be sufficient to provide the spouse seeking maintenance with the standard of living established during the marriage. The amount of maintenance is reduced by the amount the party seeking maintenance has available to provide herself with this standard of living. The ‘needs’ referred to in section 504(b) should be construed in light of the standard of living established during the marriage.”

Ill

Last, we address William’s contention that Barbara waived her right to prosecute this appeal by accepting the benefits under the judgment for dissolution. This argument is predicated upon Barbara’s accepting the $32,500 awarded to her from the sale of the marital residence and the maintenance award of $800 per month.

It has been held that a litigant cannot attack a decree after enjoying its benefits if to do so would place the opposing party at a disadvantage upon reversal of the decision. (Lemon v. Lemon (1958), 14 Ill. 2d 15, 150 N.E.2d 608; Adams v. Adams (1976), 44 Ill. App. 3d 656, 358 N.E.2d 734.) In the present case, we can hardly conclude that William was prejudiced in any material manner by reason of the payment of a portion of the proceeds from the sale of the home or the payment of maintenance.

For the reasons expressed in this opinion, the judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

ROMITI, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    CLARENCE WILLIAMS, Plaintiff-Appellee, v. JOLIET MASS TRANSIT SYSTEM et al., Defendants-Appellants.
    Third District
    No. 82—673
    Opinion filed May 31, 1983.
    Stephen M. Masters, of Masters, Brumund, Belom, Jacobs & Stukel, of Joliet, for appellants.
    Robert A. Shipley, of Gerald M. Sachs & Associates, Ltd., of Chicago, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiff, Clarence Williams, filed suit against the defendants, Joliet Mass Transit System, Fernando Jones and the city of Joliet, alleging personal injuries as a result of an automobile accident which occurred on or about December 1, 1978. The plaintiff’s complaint, which sought judgment in the amount of $14,500, was filed on November 28, 1979. On December 27, 1979, the defendant, city of Joliet, filed a motion to dismiss the plaintiff’s complaint, claiming that said complaint was insufficient at law. On January 2, 1980, the defendants, Joliet Mass Transit and Fernando Jones, filed a motion for an order to dismiss the plaintiffs complaint due to the plaintiff’s failure to separate causes of action. On January 21, 1980, the defendants’ motion to dismiss was granted. The plaintiff was given 28 days to file an amended complaint, which he failed to do.

On June 8, 1982, the defendants filed a motion requesting that the plaintiffs cause of action be dismissed with prejudice. On June 11, 1982, the plaintiff filed a motion for voluntary dismissal with leave to refile within one year, which was granted on July 6, 1982, pursuant to the provisions of the Illinois Civil Practice Act. The defendants filed a motion for rehearing of their motion to dismiss with prejudice. On September 20, 1982, an order was entered in the circuit court of Will County granting the plaintiffs motion for voluntary nonsuit and denying the defendants’ motion to reconsider. The defendants appeal from the denial of the defendants’ motion to dismiss the plaintiffs cause of action.

The defendants apparently base their argument that the motion for involuntary dismissal was wrongfully denied on the fact that the plaintiffs motion for voluntary dismissal was improperly granted. Consequently, the focus of their argument on appeal is the propriety of the granting of the plaintiff’s motion for voluntary dismissal. In this regard the defendants raise several issues. The defendants assert that the granting of the motion was within the court’s discretion and that the court abused that discretion in allowing a voluntary dismissal. The defendants also contend that the plaintiff had no right to a voluntary dismissal because he did not pay costs to the defendants.

Voluntary dismissals are granted pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52), now codified as section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009), which provides in relevant part:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.”

Under the statute, a plaintiff has an absolute right, upon proper notice and payment of costs, to dismiss his action before a trial or hearing has begun. Galowich v. Beech Aircraft Corp. (1981), 93 Ill. App. 3d 690, 417 N.E.2d 673.

The defendants argue that the granting of the plaintiff’s motion was within the court’s discretion because a hearing had begun on the defendants’ motion for involuntary dismissal. However, there is no support in the record for the assertion that a hearing had been held. The plaintiff, therefore, had an absolute right, subject to payment of costs, to dismiss his action. The granting of the plaintiff’s motion was not within the court’s discretion.

As noted above, the right to a voluntary dismissal is contingent upon payment of costs. (Juen v. Juen (1973), 12 Ill. App. 3d 284, 297 N.E.2d 633.) The defendants contend that the plaintiff’s motion was improperly granted because costs were not paid. However, the defendants have not included a report of proceedings or agreed statement of facts. It is the responsibility of the appellant to see that the record on appeal is complete. (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 365 N.E.2d 115.) Absent an adequate record on appeal, it is presumed that the court’s order conformed to the law and was based upon a sufficient factual basis. Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 407 N.E.2d 964.

The instant case is distinguishable from Juen. The record in Juen was silent as to whether the plaintiff either paid or tendered payment of the costs. (See also In re Marriage of Hanlon (1980), 83 Ill. App. 3d 629, 404 N.E.2d 873.) In the case at bar, there is no record from which we may discern whether costs were paid or tendered. We must presume therefore that the trial court’s order granting the voluntary dismissal conformed to the requirements of section 52 and had a sufficient factual basis.

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

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY SMITH, Defendant-Appellant.
    First District (4th Division)
    No. 81—2263
    Opinion filed May 19, 1983.

      James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Joseph L. Ponsetto, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Leroy Smith, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), two counts of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11), and four counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4). Defendant was sentenced to concurrent terms of imprisonment of 20 years for home invasion, armed violence, and armed robbery, and seven years for each count of aggravated battery.

Defendant appeals his convictions, arguing that (1) he was convicted improperly of armed robbery and home invasion because the complainant did not tell the police of these offenses on the day of the incident; (2) the trial court erred in permitting the State to introduce in rebuttal an oral statement made by defendant that had not been revealed to defendant pursuant to his pretrial discovery request; (3) the record does not reveal a knowing and intelligent jury waiver; (4) the convictions for four counts of aggravated battery must be vacated because (a) the trial court imposed sentence for only one count of aggravated battery and (b) the same physical act was the basis for the aggravated battery and armed violence convictions; and (5) defendant’s sentence for armed violence is improper.

The State concedes that defendant’s armed violence conviction should be vacated on the authority of People v. Harori'(1981), 85 Ill. 2d 261, 422 N.E.2d 627. We affirm defendant’s convictions for aggravated battery, home invasion, and armed robbery and vacate his conviction for armed violence.

Facts

Defendant was tried on July 20, 1981. At the commencement of the proceedings, defense counsel informed the court that “Mr. Smith is requesting a trial by Court rather than a jury; he will sign a jury waiver.” The jury waiver form signed by defendant appears in the record.

Minnie Robertson was the first witness called by the State. She testified that on December 22, 1980, she lived in an apartment in Chicago with Roman Allen. She was at home alone at 8:15 p.m. when defendant, whom she called “Lamont,” came to her door. Robertson testified that she was acquainted with defendant, having met him several times at a lounge she went to with her boyfriend. Defendant had never been in her apartment before.

When Robertson opened the door defendant grabbed her by the throat and pushed her back into the apartment. Defendant “snatched” the telephone out of the wall, told her to put her hands up, and asked if she had any money. When Robertson said no, defendant struck her on the head several times with a “bullworker” exercise instrument and an iron pipe. Defendant then struck Robertson in the face, breaking her jaw and displacing nine teeth. Her left hand was broken in several places and the little finger severed. When she fell to the floor defendant continued to strike her with the iron pipe and kicked her several times, leaving his footprint on her back. Robertson testified that defendant threatened to shoot her; she did not see a gun. He told her to answer him but she could not because of her facial injuries. She testified that she saw defendant take her television and stereo and leave.

A Chicago police officer testified that he went to Robertson’s apartment on December 22 pursuant to a radio call. He found Robertson in the hall covered with blood. She was taken to the hospital where she was treated for two broken arms, two broken hands, a broken jaw, and a bruised back. More than 100 stitches were needed to close her head wounds, a finger was amputated, and plastic surgery-on her left eye was necessary.

Robertson was interviewed by two policemen on the night she was injured. She identified defendant to them as her attacker and said defendant had told her that “he was going to get my mother, my family if I told anyone, and he said he had a gun.” Robertson said she did not see the gun. She did not mention to the policemen that any property had been taken.

Defendant testified that on December 22, 1980, he was at home recuperating from a kidney operation. At 5 p.m. his mother answered a telephone call for defendant from Minnie Robertson, whom he had dated previously. He went to Robertson’s apartment at 5:30 and talked with her until 6:30. They both drank wine and became intoxicated. Defendant testified that he began to feel sick and that he did not want Robertson’s boyfriend to find him in her apartment, so he tried to leave. Defendant and Robertson began to fight over defendant’s jacket and slapped each other. Defendant stated that Robertson tried to grab him, he pushed her, and she lost her balance and fell through a glass table. She got up and grabbed the door to prevent him from leaving. He shut the door forcefully, catching her fingers. When he pushed the door off her fingers it hit her in the face. Robertson refused defendant’s help and defendant left.

Defendant denied hitting Robertson with any object and denied taking anything from her apartment. Defendant’s mother and brother corroborated defendant’s testimony that Robertson had called him. They both testified that defendant was not carrying any goods when he came home. Defendant was arrested at his home on December 28, 1980.

After the defense rested, the State called Chicago police officer Robert Smitka as a rebuttal witness. Defendant’s objection to the officer’s being called was overruled; the witness was directed by the court to “confine your testimony solely to rebuttal.” Officer Smitka testified that defendant told police on the day he was arrested, “I don’t know what you are talking about. I wasn’t there.” Officer Smitka said during cross-examination by defense counsel that he had included this statement in his police report of the incident, but two or three pages of the report had been lost. The following exchange then took place:

“[Defense counsel]: We are at a disadvantage here. Apparently there are other pages of the report and we haven’t got it.
The Court: Were you aware there were some pages lost?
[The State]: We don’t have them.
The Court: Were you aware?
[The State]: Not until today.
[Defense counsel]: We were taken by surprise by his testimony.
The Court: Can you cross-examine any more?
[Defense counsel]: No.
The Court: I will allow latitude to explore.”

Cross- and redirect examination of the witness were then completed.

A certified record of defendant’s earlier conviction for armed robbery was admitted into evidence. The court found defendant guilty beyond a reasonable doubt of all the charges, regardless of whether there had been any relationship between defendant and Robertson, because he found defendant’s explanation that Robertson had hurt herself accidentally to be unworthy of belief. Defendant was sentenced as outlined above.

Opinion

I

Defendant’s first argument on appeal is that his convictions for home invasion and armed robbery must be reversed because Robertson did not tell the police on the day she was injured that defendant was an intruder or that he had robbed her, and this court should therefore infer that Robertson’s testimony “was concocted by her to prevent domestic difficulties with her new boyfriend.” Defendant cites People v. Carter (1974), 19 Ill. App. 3d 21, 311 N.E.2d 213, in support of this claim. In Carter, the defendant’s murder conviction was reversed because the two eyewitnesses had given testimony that differed from their trial testimony, not only to the police when they reported the murder, but also at a coroner’s inquest and again before a grand jury. Furthermore, Carter’s codefendant was found not guilty on the same evidence. Finally, the trial testimony in question was not merely, as here, more detailed and inclusive than the witnesses’ first account of the crime to the police; at trial the witnesses in Carter directly contradicted the story they had told not once, but three times, before the trial. Under these circumstances the reviewing court found that “[t]he entire testimony of the [witnesses] was so replete with contradictions and inconsistencies that a conviction based upon such testimony cannot stand.” 19 Ill. App. 3d 21, 23, 311 N.E.2d 213, 215.

A decision based on a situation so entirely different from the facts in the case at bar cannot be read to require a reversal of defendant’s convictions for home invasion and armed robbery. Robertson gave a more detailed account of the attack at trial than she gave to the policemen who interviewed her at the hospital after she received treatment for the severe injuries described above. It certainly does not strain credulity to assume, as the trial judge evidently did, that Robertson was suffering too much stress to give a completely detailed description of the attack at that time. We also find it significant in this regard that Robertson testified defendant had told her “he was going to get my mother, my family if I told anyone, and he said he had a gun.” We agree with the State’s observation that “[l]ack of concern over a material possession or how an attacker gained entrance after a savage beating is *** understandable.”

“A reviewing court may not substitute its judgment for that of the trier of fact ‘on questions involving the weight of the evidence or the credibility of the witnesses [citations], and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt.’ ” (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513, quoting People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631, 634.) “Conflicts or discrepancies in testimony go only to the weight to be given to the testimony [citation], and the trier of fact may believe as much or as little as it pleases of a witness’s testimony [citation].” (People v. Beasley (1977), 54 Ill. App. 3d 109, 114, 369 N.E.2d 260, 264.) “In a bench trial it is the function of the trial judge to determine the credibility of the witnesses and the weight to be afforded their testimony and to resolve any conflicts in testimony, and a reviewing court should not reverse merely because the evidence is conflicting.” (People v. Glaze (1977), 48 Ill. App. 3d 523, 533, 362 N.E.2d 1287, 1296.) As we have said, the evidence in this case is more accurately described as more or less detailed or complete than as conflicting. Even if the evidence were actually conflicting, this court would not be justified in reversing the trial judge’s determination that Robertson’s testimony was worthy of belief and that defendant was proved guilty beyond a reasonable doubt. Established legal principles require us to defer to the trial judge’s findings; defendant’s claim that we should not do so is unpersuasive.

II

Defendant’s second argument for reversal is that the trial judge erred in permitting the State to use in rebuttal an oral statement made by defendant that had not been revealed to defendant pursuant to his pretrial discovery request. We disagree.

In response to defendant’s discovery motion the State answered that defendant had made an oral statement to police on December 22, 1980. Since defendant was arrested on December 28, it appears the date was mistakenly reported, but the record indicates that the State did inform defendant of the existence of the statement, and informed him that its substance was contained in a police report. A copy of the police report was furnished to defendant. The relevant portion of the trial transcript, which is quoted above, indicates that neither the State nor defense counsel was aware until the statement was introduced as rebuttal evidence that the relevant section of the police report had been lost before defendant received a copy.

We think that defendant has waived this issue on appeal by failing to object to the testimony regarding defendant’s statement at the time it was elicited. Although defendant claims that objection was made to introduction of the statement, the record indicates that defendant objected only to the State’s calling Officer Smitka to testify in rebuttal. When the witness quoted the statement made by defendant, no objection was made. It became apparent for the first time when defense counsel cross-examined the witness that the portion of the police report containing defendant’s statement had been lost. Although defense counsel expressed his surprise, he made no objection. The trial judge then offered counsel “latitude to explore” to compensate for the surprise testimony, and counsel asked two more questions before stating that he had no further questions for the witness.

“[Njoncompliance with discovery requirements does not require reversal absent a showing of prejudice. (People v. Steel (1972), 52 Ill. 2d 442, 288 N.E.2d 355.) Moreover, the trial court has discretion in allowing introduction of testimony not disclosed where there is no showing of surprise or prejudice; further, a defendant cannot complain when he fails to request a continuance for investigation of the statement and instead proceeds with trial.” (People v. Ferguson (1981), 102 Ill. App. 3d 702, 713, 429 N.E.2d 1321, 1329.) This court has held that to establish prejudice defendant must show that the disputed testimony was essential to support defendant’s conviction. (People v. James (1981), 100 Ill. App. 3d 884, 427 N.E.2d 248.) Although defense counsel did express surprise, in this case the surprise was mutual and occurred through no apparent fault of the State; defendant made no showing of prejudice, and neither objected to admission of the statement nor requested time to investigate, but proceeded with trial. Thus it appears to us that defendant has waived his objection.

Assuming, arguendo, that this issue has not been waived, we find defendant’s argument that the testimony amounted to reversible error unpersuasive. Defendant cites People v. Thompson (1974), 18 Ill. App. 3d 613, 310 N.E.2d 504, in support of his claim that admission of the oral statement “severely prejudiced his case *** [and] the error can be corrected only by a new trial.” We do not find that Thompson mandates reversal in this case, however. The State argues that Thompson is distinguishable on its facts from the case at bar in that defendant Thompson had filed a “motion to produce confession” under section 114 — 10 of the Code of Criminal Procedure of 1963, while defendant in this case filed a simple motion for discovery, and the statement at issue “is certainly not a confession.” In view of the Illinois Supreme Court’s holding in People v. Costa (1967), 38 Ill. 2d 178, 230 N.E.2d 871, that the word confession includes both inculpatory and exculpatory statements, we do not find the State’s characterization legally persuasive in spite of its factual accuracy. However, since the Thompson decision concerned the application of a statute that is not at issue in this case, we agree that its precedential value in the case at bar is questionable. Furthermore, the reversal in Thompson was based on the State’s statement in its bill of particulars that the defendant had made no written or oral statement when in fact a statement had been made and the State introduced it into evidence at trial. Because there was “no indication in the record *** that the State’s Attorney was unaware of the statement or could not have become aware of it in the exercise of due diligence” (18 Ill. App. 3d 613, 616, 310 N.E.2d 504, 507), reversal was found to be necessary.

The record in the case at bar indicates that the State did inform defendant of the existence of the statement and informed him that the substance of the statement was contained in the police report, of which defendant received a copy. Both defense counsel and the State’s Attorney were unaware that pages of the report were missing until Officer Smitka began to testify. Accordingly, we find the rationale of the Thompson decision to be inapplicable in this case.

Nor do we find that People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255, cited by defense counsel in oral argument, mandates reversal. In that case, failure of the State to comply with discovery requirements was found to have prejudiced the defendant and to have been done through the State’s neglect, inadvertent or purposeful. The failure to comply was thus held to require reversal. The facts of the case at bar differ substantially from those in Weaver, as they do from the facts in Thompson, and as the Weaver court observed, the judgment of the trial court is given great weight, and each case must be decided on its own facts.

Finally, this was a bench trial, and the “sound presumption [is] that the court in a bench trial relies only on proper evidence in reaching a determination on the merits.” (People v. Berland (1978), 74 Ill. 2d 286, 310, 385 N.E.2d 649, 660, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64; see also People v. Pagan (1972), 52 Ill. 2d 525, 288 N.E.2d 102.) In the absence of an objection that was overruled, we must presume that the trial judge disregarded any improper evidence. Accordingly, for all the foregoing reasons, we find that the trial judge’s decision to admit the testimony regarding defendant’s statement was within the proper bounds of his discretion.

Ill

Defendant’s argument that his convictions must be reversed because the record does not reflect a knowing and intelligent jury waiver is completely without merit. As we stated above, a jury waiver signed by defendant appears in the record. Furthermore, defendant was present in court when his counsel informed the trial judge that defendant requested a bench trial, whereupon the trial judge questioned defendant about his understanding of what a jury is and his desire to have a bench trial. The defendant himself told the trial judge that he wished the judge to hear the case without a jury. The record clearly indicates that this was an informed decision by defendant.

Even in the absence of a signed jury waiver, Illinois courts have repeatedly held that when defense counsel has made an express waiver of the right to a trial by jury in the defendant’s presence, defendant is deemed to have acquiesced in the waiver and to be bound by it. (See, e.g., People v. Hoover (1980), 87 Ill. App. 3d 743, 410 N.E.2d 195; People v. Williams (1977), 47 Ill. App. 3d 798, 365 N.E.2d 415, cert. denied (1978), 434 U.S. 1070, 55 L. Ed. 2d 772, 98 S. Ct. 1251; People v. Sheppard (1974), 20 Ill. App. 3d 1036, 313 N.E.2d 287.) Even if defendant had not signed a waiver form evidencing his desire to have a bench trial, he would be bound by his knowing and intelligent choice of a bench rather than a jury trial.

IY

As stated above, the State concedes that defendant’s armed violence conviction should be vacated in light of the holding in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, that a conviction for armed violence based on the underlying felony of aggravated battery was improper because the presence of a weapon was used to enhance an offense from misdemeanor to felony and also to support a charge of armed violence. Haron mandates a vacation of defendant’s armed violence conviction because the conviction was based on the crime of aggravated battery. Defendant claims that “since this sentence may have influenced the court’s sentencing decisions on the other counts, the entire case must be remanded for resentencing.” Defendant offers no support for this conclusory statement, and we find no indication in the record that the armed violence conviction influenced the court’s sentencing decision as to the other convictions, therefore we hold that resentencing is unnecessary.

V

The last claim advanced by defendant is that his convictions for four counts of aggravated battery must be vacated because (1) the trial judge sentenced him for only one count and (2) defendant was convicted for armed violence based on the same physical act. We find the first argument to be frivolous because it is supported solely by a minor misstatement by the trial judge at the sentencing hearing in which he referred to aggravated battery (singular) rather than aggravated batteries (plural). Because the entire record with the exception of this single word, including every other mention of the convictions by the trial judge and the mittimus that specifies four counts of aggravated battery, indicates that defendant was convicted of and given concurrent seven-year sentences for four counts of aggravated battery, we find this argument by defendant to be entirely lacking in merit.

In support of the second argument, which is that the aggravated battery convictions must be vacated because defendant was also convicted for armed violence and “[i]n Illinois, multiple convictions cannot stand when they are caused from the same physical act,” defendant cites People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, and People v. Johnson (1981), 101 Ill. App. 3d 1060, 428 N.E.2d 1133. Our reading of these decisions reveals that neither dictates a reversal of defendant’s aggravated battery convictions. In the first place, we have vacated the armed violence conviction and defendant therefore is no longer subject to multiple convictions for both armed violence and the underlying felony. Although defendant does not specifically argue that he should have been convicted for only one count of aggravated battery regardless of whether he was also convicted of armed violence, such an argument is implied and we think it appropriate to point out that neither King nor Johnson requires vacation of any of the four aggravated battery convictions.

In Johnson, this court vacated the defendant’s armed violence conviction while affirming his convictions for the underlying felonies of murder and attempted murder. The decision is in complete harmony with our decision in the case at bar. Nor does King, which is frequently cited for the proposition that multiple convictions cannot stand when they are carved from the same physical act, mandate a reversal of defendant’s aggravated battery convictions. King affirmed a defendant’s convictions for both rape and burglary with intent to rape. The court expressed the standards for determining when multiple convictions and concurrent sentences are permissible as follows:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.

We find King’s analysis to be dispositive of the case at bar. Defendant was convicted of the several acts of committing a battery that (1) caused great bodily harm, (2) caused permanent disability, (3) caused permanent disfigurement, and (4) was committed with a deadly weapon. The record amply supports the conclusion that conviction of a separate count of aggravated battery for each of these related acts was appropriate.

For all of the reasons discussed above, we affirm defendant’s convictions for aggravated battery, home invasion, and armed robbery, and vacate his conviction for armed violence.

Affirmed in part; vacated in part.

ROMITI, P.J., and JOHNSON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOBO LOPEZ, Defendant-Appellant.
    First District (4th Division)
    No. 81—3143
    Opinion filed May 19, 1983.

      John Paul Carroll, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Marie Quinlivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Jacobo Lopez, was charged by indictment with one count of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1) and two counts of indecent liberties with a child, the first involving sexual intercourse (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(1)) and the second involving lewd fondling or touching (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(3)). Following a jury trial in the circuit court of Cook County, defendant was convicted on all three counts and sentenced to eight years in the Illinois Department of Corrections.

Defendant raises three claims of error on appeal: (1) his confession should have been suppressed because the State failed to produce and examine all material witnesses to each of his confessions as required by statute; (2) he should be granted a new trial because the State failed to provide the defense with a list of witnesses to all of defendant’s confessions as required by statute; and (3) he was denied a fair trial because the trial court refused to allow him to have an interpreter assist him at trial.

We affirm the decision of the trial court.

Facts

The rape victim, a niece of defendant, is a deaf-mute 12-year-old. Testifying with the aid of a sign language interpreter, she stated that on Thursday, March 26, 1981, she came home from school and began watching television with her brother, sister, and cousin. Defendant, a brother of the victim’s mother, arrived and sat down to watch television with the children. When the victim went upstairs to the bathroom, defendant followed her, led her into her parents’ bedroom, and directed her to remove her clothing and put on a bathrobe. Despite the child’s indications of protest, defendant then unzipped the robe, removed the girl’s underclothing, pushed her onto the bed, began kissing and fondling her breasts, and then put his penis into her vagina. As she struggled to push defendant away, he withdrew his penis but then began a second act of forced sexual intercourse with the girl. When defendant finally released her, he warned her not to tell anyone what had happened and then left the house.

After defendant had gone, the victim, although in pain, did not mention the attack to anyone that day. On Friday, the following day, she did tell her younger sister but was too afraid to tell her mother because “mother-father mad at me, no more live in the house, kick out.” She did not tell her mother about the attack until the following Sunday.

The victim’s mother did not call the police immediately to report the rape but instead called a family conference on Sunday evening to decide the proper course of action. As a result, the mother called the police on Monday morning, March 30, 1981, and told them that her brother, the victim’s uncle, had raped her daughter. She and the police then took the child to the hospital for an examination. With the help of a sign language interpreter and some anatomy pictures provided by the doctor, the girl told the police about the entire incident.

Meanwhile, Sergeant O’Hara and Officer Jackson went to defendant’s place of employment, U.S. Steel Company, and arrested him on charges of rape and indecent liberties with a child.

In his first conversation with the arresting officers, defendant denied raping the girl but admitted to “playing around with her.” Defendant was then taken to the Fourth District police station, where he was questioned twice during the afternoon on the day of his arrest, once at 2 p.m. and once at 4:30 p.m. Detective Charles Grunhard testified that he was present during both sessions and gave defendant his Miranda warnings before defendant made any statement at all. Defendant said he understood his rights and then agreed to talk about the charges to Grunhard and his partner, Detective Edison, who was also present at the 2 p.m. questioning.

At approximately 4:30 p.m. on March 30, 1981, Assistant State’s Attorney Komessar completed his several-hour interview of the victim’s mother in time to participate with Grunhard in the second session with defendant at the district station. Komessar identified himself to defendant as an assistant State’s Attorney, explained that he was not defendant’s attorney, and then advised defendant of his Miranda rights, which defendant again said he understood.

A short time later, court reporter Raymond Peters was called in to record defendant’s statement. Komessar explained each of defendant’s Miranda rights, and defendant responded on the record that he understood each one. He then admitted to committing indecent liberties and having sexual intercourse with his niece. After defendant’s confession was transcribed, Komessar and defendant together read each question and answer aloud because defendant had some difficulty reading the typed statement although he had had no trouble understanding and responding to each question as it was asked. Defendant then initialed each page of the statement and signed the last page, which was also signed by Grunhard and Komessar.

On August 5, 1981, defendant filed a motion to suppress his confessions on the ground that they were coerced and involuntary: (1) Miranda warnings were not given, (2) defendant was subjected to continued questioning after he said he did not want to talk, (3) his request for an attorney was ignored, and (4) he was promised that he could go home as soon as he made a statement. At the September 16, 1981, hearing on the motion, Detective Grunhard testified that he had given defendant the required Miranda warnings each time they talked, that he had not said that defendant could go home as soon as he made a statement, and that although defendant had had some difficulty reading the transcription of his statement, he had displayed no lack of understanding during the questioning. Defendant himself testified that he understood spoken English better than he read written English.

On cross-examination, Grunhard admitted that he and defendant had talked about defendant’s going home. Defendant had asked how long he would have to stay in the station, whereupon Grunhard had responded, “Well, after the conversation is complete and everything is completed here, and if they prefer charges against you, then later the Bond Court meets tonight and the judge at the Bond Court will set a bond for you and you will be able to go.”

Defendant was the only other witness to testify at the hearing on the motion to suppress. After confirming Grunhard’s testimony concerning the Miranda warnings, his own ability to understand spoken English, and Komessar’s carefully helping him review the accuracy of his written confession, defendant testified that at the time he was questioned, he did not know what the word “attorney” meant or what a State’s Attorney was. However, he later admitted on cross-examination that when Komessar identified himself and explained his position as an assistant State’s Attorney, defendant understood that Komessar was a lawyer who was not representing him. No further questions were asked.

At the conclusion of the testimony offered during the hearing, the trial judge reserved his ruling on the motion to suppress until defense counsel had had an opportunity to file a memorandum supporting the motion. The judge noted, however, that the only issue presented at the hearing was whether the defendant had understood his confession when he signed it.

Two weeks later, the hearing continued with defense counsel arguing (1) the inability of defendant to understand English well enough to understand his Miranda rights, (2) defendant’s ignorance of his right to stop the questioning at any time, (3) the State’s failure to provide defense counsel with the names of all witnesses to all conversations between defendant and law enforcement officials, and (4) the State’s failure at the suppression hearing to call all material witnesses to defendant’s confessions. The trial judge denied the motion to suppress, repeating his earlier statement that the only issue raised by the testimony was defendant’s ability to understand English, and all material witnesses to that issue had been called. The judge reminded defense counsel that because a motion to suppress a confession challenges the voluntary nature of the statement, and the State had presented unrebutted evidence that the confession was voluntary, there was no reason to suppress the confession and it would be admissible at trial.

On the day of trial, October 27, 1981, defense counsel moved that defendant be allowed to have a Spanish-speaking interpreter assist him during the trial because he was not “one hundred per cent conversant in the English language.” The State vigorously objected, and the trial court, noting that a decision to allow an interpreter was within the discretion of the court, denied the motion on the ground that he was convinced of defendant’s ability to understand and respond to the proceedings as a result of observing the defendant during the suppression hearing.

The case then proceeded to trial. Only the State called any witnesses, presenting its case through the testimony of the victim, her mother, one of the arresting officers, and Assistant State’s Attorney Komessar. The defendant’s written confession was admitted into evidence and read into the record. The jury found defendant guilty on all three charges.

At the subsequent sentencing hearing, the judge declared the indecent liberties charges to be merged into the rape charge and stated that, after balancing all pertinent factors, he found a sentence of eight years to be appropriate. Judgment was entered on that finding, and defendant appealed.

Opinion

Defendant’s first claim of error on appeal is that his motion to suppress his confession should have been granted because the State did not comply with the applicable statutory requirements. The statute at issue, known as the material witness rule, states in pertinent part,

“Sec. 114 — 11. Motion to Suppress Confession, (a) Prior to the trial of any criminal case a defendant may move to suppress as evidence any confession given by him on the ground that it was not voluntary.
(b) The motion shall be in writing and state facts showing wherein the confession is involuntary.
* * *
(d) The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.” Ill. Rev. Stat. 1981, ch. 38, par. 114 — 11.

Defendant contends that because the State failed to meet its burden of producing and examining all material witnesses to the making of defendant’s confessions, all his confessions should have been suppressed. Specifically, defendant argues that both arresting officers, any detectives assisting Grunhard during the various stages of the questioning, Assistant State’s Attorney Komessar, and the court reporter should have been produced by the State at the suppression hearing; the appearance of Detective Grunhard, the only State’s witness at the hearing, did not constitute sufficient compliance with the statute to render defendant’s confession admissible at trial. We find no merit in defendant’s argument.

Defendant correctly asserts that Illinois courts consistently have held that once the voluntary nature of a confession is called into question by a motion to suppress, the State must produce all material witnesses to the taking of the statement or explain their absence. Noncompliance with this rule will result in reversal. (People v. Scott (1973), 13 Ill. App. 3d 620, 301 N.E.2d 118; see People v. Armstrong (1972), 51 Ill. 2d 471, 282 N.E.2d 712, and the cases cited therein.) In the instant case, defendant claims that his motion to suppress challenged all of his statements on the grounds of coercion and failure to give Miranda warnings. However, even a cursory examination of the record reveals that there was no evidence that either defendant’s written confession or any of his prior oral statements were made involuntarily. There is nothing but a bare, unsupported allegation to that effect in the written motion to suppress.

This alleged coercion was refuted directly by the testimony of Detective Grunhard, the first witness at the suppression hearing. He stated that at each of his interviews with defendant he reminded defendant of his constitutional rights but made no promises concerning when defendant could go home. The only evidence on the issue of coercion, therefore, is the unrebutted testimony by the State establishing the voluntary nature of the confession.

At this point in the hearing, the State had met its dual burden of going forward with the evidence and proving the confession voluntary. “It is only necessary that the prosecution make out a prima facie case that the confession was voluntary before defendant is required to present some evidence.” (People v. Peck (1974), 18 Ill. App. 3d 112, 115, 309 N.E.2d 346, 349, citing People v. Strayhorn (1966), 35 Ill. 2d 41, 219 N.E.2d 517.) Once the State makes such a prima facie showing, “the burden shifts to the defense to produce evidence that the confession was involuntary and reverts back to the State only upon such production by the defense.” People v. Cukojevic (1981), 103 Ill. App. 3d 711, 719, 431 N.E.2d 1154, 1160.

The defense never produced any evidence of coercion, not even through the testimony of the defendant himself. Indeed, while testifying, defendant never mentioned the alleged promise that he could go home, any request for an attorney, or the persistence of the police questioning even after he allegedly asked them to stop. Just as a court may not ignore a defendant’s uncontroverted testimony that a confession was a product of specific acts of physical or mental coercion, so it may not ignore uncontroverted testimony by the State establishing the voluntariness of a confession. To do so would be reversible error. (See People v. Arendarczyk (1937), 367 Ill. 534, 12 N.E.2d 2; People v. Peck (1974), 18 Ill. App. 3d 112, 309 N.E.2d 346.) Accordingly, we find no error in the trial court’s refusal to suppress defendant’s confession on the ground that it was the product of coercion.

Defendant next argues that his written confession should have been suppressed because the State failed to comply with the material witness rule; the State never produced witnesses to prove the confession was not “fruit of the poisonous tree.” The first “confession,” the statement by defendant to the arresting officers, was never proved voluntary; consequently, defendant contends, “its poison spread to all of the subsequent confessions given by Jacobo Lopez ***. The police used Jacobo Lopez’s first coerced confession to coerced [sic] him into making the other three confessions that day.” The yawning chasm between defendant’s stated logical premises and his conclusion defies analysis.

The State deals with this argument by pointing out that never, during any stage of this case, was there any evidence of coercion, much less any “exploitation of illegality.” (Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.) As we discussed earlier, the defendant never gave one word of testimony that any of his statements were involuntary. The State met its prima facie burden of proving that the written confession, the only statement by defendant introduced at trial, was voluntary; the material witness rule does not require the State to present overwhelming evidence rebutting in advance every possible theory a defendant may improvise. People v. Strayhorn (1965), 35 Ill. 2d 41, 219 N.E.2d 517.

If defendant wished to challenge the State’s evidence by advancing a “fruit of the poisonous tree” argument, he was required to establish through testimony at the suppression hearing that his first statement was coerced. Defendant’s trial attorney, who also is representing him on appeal, carefully avoided asking either witness who testified at the hearing one single question about defendant’s first statement. Counsel cannot now be heard to challenge the silence of a record he intentionally caused to be silent.

The only testimony given by defendant at the suppression hearing dealt with his supposed difficulty in understanding the English language and therefore his Miranda rights. Illinois courts have held consistently that the material witness rule does not apply when the motion to suppress is based only on the failure to give defendant his Miranda warnings. (People v. Robinson (1980), 87 Ill. App. 3d 621, 410 N.E.2d 121; People v. McClure (1976), 43 Ill. App. 3d 1059, 358 N.E.2d 23; People v. Richardson (1974), 21 Ill. App. 3d 859, 316 N.E.2d 37.) Consequently, the trial judge was correct in his decision that the State had not violated the material witness rule and defendant’s confession should not be suppressed on that ground.

The second reason tendered by defendant for the suppression of his confession is that it was the product of defective or nonexistent Miranda warnings. This argument is based on the rules for proving waiver of one’s constitutional rights as set forth by the Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * *
* * *
<*** rphg recor(} must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.’ ”

In the instant case, both the State and the defendant himself testified at the suppression hearing that Miranda warnings were given before all interviews held at the district police station. Although defense counsel attempted to establish that defendant did not understand the word “attorney,” on cross-examination defendant stated that he knew the assistant State’s Attorney was a lawyer. While the wording of the warnings given to defendant might not have been in the ideal form recommended by the Chicago police department, “[i]t is established that Miranda does not specify the precise language to be used in conveying the warnings and does not require a ritualistic recital of words. [Citations.] Words which convey the substance of the warnings along with the required information are sufficient.” (People v. Walters (1979), 69 Ill. App. 3d 906, 914, 387 N.E.2d 1230, 1236.) The trial judge observed defendant and concluded that he understood English well enough to know the meaning of the Miranda warnings and to participate fully in all the proceedings. We find no basis to disregard the trial court’s determination. Accordingly, we find defendant’s waiver of his constitutional rights to have been both intelligent and knowing, and we find that no Miranda violation occurred.

II

Defendant’s second argument on appeal is that he is entitled to a new trial because the State failed to comply with the disclosure provisions of the statute governing motions to produce confessions. Section 114 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 10) states in pertinent part,

“Sec. 114 — 10. Motion to Produce Confession, (a) On motion of a defendant in any criminal case made prior to trial the court shall order the State to furnish the defendant with a copy of any written confession made to any law enforcement officer *** and a list of the witnesses to its making and acknowledgment. If the defendant has made an oral confession a list of the witnesses to its making shall be furnished.
* * *
(c) No such confession shall be received in evidence which has not been furnished in compliance with subsection (a) of the Section ***.”

Defendant maintains that the inaccurate, incomplete list of witnesses provided by the State did not satisfy the mandatory requirements of the statute, and therefore his confession should have been suppressed. We find defendant’s argument unpersuasive.

The legislative purpose behind section 114 — 10 is “to provide the accused with protection against surprise, unfairness and inadequate preparation.” (People v. O’Connell (1964), 30 Ill. 2d 603, 608, 198 N.E.2d 834, 837-38.) The record discloses that the State did provide defendant with a complete list of the witnesses to his written confession, the only one introduced at trial. The wording of the statute clearly limits its application to those confessions used as evidence at trial; even the many cases cited by defendant to support his argument for complete disclosure of all witnesses present at the making of a confession dealt with undisclosed witnesses testifying at trial that inculpatory statements had been made by the defendant. (30 Ill. 2d 603, 198 N.E.2d 834; People v. Du Pree (1962), 26 Ill. 2d 320, 186 N.E.2d 237; People v. Rand (1975), 29 Ill. App. 3d 873, 331 N.E.2d 15.) Clearly, no such surprise occurred here. We necessarily conclude that defendant would have us impose a mistaken version of the rule for the production of material witnesses found in section 114 — 11 of the Code of Criminal Procedure of 1963 on the rule in section 114 — 10 requiring the State to provide a list of witnesses to a confession introduced as evidence at trial. This cannot be done. Accordingly, we find no error in the trial court’s refusing to suppress defendant’s confession on the ground that the State violated section 114 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114— 10).

Ill

Defendant’s final claim on appeal is that the trial court’s denial of his motion for a Spanish-speaking interpreter denied him his fourteenth amendment right to due process and his right to be present at trial. Again, we disagree.

The decision to allow an interpreter for the benefit of a defendant lies within the sound discretion of the trial judge, and his decision not to allow an interpreter will not be reversed absent a showing that lack of an interpreter deprived defendant of some basic right. (People v. Soldat (1965), 32 Ill. 2d 478, 207 N.E.2d 449.) In the instant case, the trial judge had ample opportunity to observe defendant during the suppression hearing. Defendant himself testified that he understood spoken English better than he could read or write it. Further, the judge noted for the record that defendant was born in Texas, was educated in American schools, served in the United States Army, and had been employed in Cook County for almost 10 years. Defense counsel’s plea that his client deserved an interpreter in his “native tongue” overlooks the meaning of “native.” We think it unreasonable to maintain that the native language of anyone born in Texas could be anything but English.

Finally, we take note of the timing of defendant’s request for an interpreter. Defendant made no such request at the time of the suppression hearing, at which he testified without difficulty. The trial judge stated immediately before trial,

“I think that in exercising my discretion it should be duly noted that in none of these proceedings up to this point was there ever a request or a suggestion that a translator was needed until this moment, after the jury has been selected without the use of a translator.”

The only evidence of defendant’s lack of facility with the English language came in his suppression hearing testimony that he did not completely understand the word “attorney” in his Miranda warnings. In addition to his own contradiction of this statement during cross-examination, we note that his motion to suppress specifically stated that he requested an attorney at the time of his arrest but was ignored. Accordingly, we find no error in the trial court’s refusing to allow defendant to have an interpreter assist him at trial.

For all the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS STORY, Defendant-Appellant.
    First District (4th Division)
    No. 82—2366
    Opinion filed May 19, 1983.
    Steven M. Levin, of Hayman, Kirshenbaum & Levin, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Defendant Dennis Story was indicted for attempted rape and unlawful restraint. (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 11 — 1, 10 — 3.) Following a bench trial he was found guilty of both offenses; the unlawful restraint was then merged into the attempted rape. Defendant filed a post-trial motion challenging the conviction. In response the court vacated the attempted rape conviction and entered a finding of guilty of battery based upon evidence of physical contact of an insulting and provoking nature with the victim. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a)(2).) The court then sentenced defendant to one year probation.

On appeal defendant contends that the battery conviction is legally inconsistent with the acquittal of attempted rape. His theory is that since the trial court revealed doubt as to the adequacy of proof on the issues of lack of consent and use of force, he was either guilty as charged or not guilty, but he argues that he could not be found guilty of battery. The State’s position is that battery is a lesser-included offense of attempted rape and the conviction should be upheld.

The complainant testified that on March 24, 1982, at 9:15 a.m., as she sent three of her children to school, defendant, a telephone repairman, arrived to make a service call. Defendant showed her his identification and she let him into the apartment. At that time there were two children still at home, ages three years and 15 months. Complainant directed defendant to the malfunctioning telephone jack in the hallway, then went to retrieve her clothing from the bedroom since she was wearing only a knee-length nightgown. As she reentered the hall on her way to the bathroom, defendant grabbed her hands and pulled her toward him. Defendant asked her if she was mad at him, to which she replied “no.” Complainant’s three-year-old son approached her. She asked him if he wanted to go outside. He said he did, so complainant disengaged herself from defendant and returned to the bedroom to get her son’s shoes. There she found a piece of toilet tissue and a pen on the floor, and wrote a note (which was introduced into evidence as People’s exhibit No. 1) saying, “Jan, come quick.” She put her son’s shoes on him and told him to go to her friend Jan’s apartment in the same building. Defendant then entered the bedroom and held complainant from behind around the waist with his left hand. She said she could feel him unfasten his trousers with his right hand. Defendant again asked her if she was mad at him; she said “no.” Defendant tried to lay her on the bed, but she pushed away from the bed with her foot. Still holding her her by the waist, defendant took her into the bathroom and bent her over. Her nightgown rose above her thighs and she could feel defendant rub his penis along her thighs and buttocks. Complainant felt defendant loosen his grasp on her waist; she looked up and saw Jan’s three-year-old daughter standing in the doorway and heard Jan call her name from the kitchen. Complainant ran into the kitchen crying and said “the telephone man.” Jan told her to go to her apartment. Complainant acknowledged that defendant did not have a weapon of any kind in his possession and did not verbally threaten her and that she never told him she did not want him to hold'her. However, she asserted that once she told him, “Don’t. Stop.” She said she struggled a little bit but that since she was only five feet tall and weighed 104 pounds, while defendant was bigger, she felt “he would know that I didn’t want him to do anything.”

Jannette Lindsey testified that complainant’s son came to her apartment with a note stating, “Jan, come quick.” She dressed her three children and returned to complainant’s apartment about five minutes later. Her daughter ran into the apartment while she called complainant’s name from the kitchen. Complainant came into the kitchen dressed in a nightgown; she was crying and shaking. She said “the telephone man.” Jan asked if it was safe to go inside, and complainant shook her head no. Complainant went to Jan’s apartment while Jan remained in the kitchen calling to her daughter. Defendant then came to the back door buckling his pants and sweating. He asked Jan where the complainant had gone and said he did not want her (complainant) to talk to his employer at Illinois Bell because he had done something he “had no business doing” and could lose his job. Jan returned home, calmed complainant and convinced her to call the police.

Chicago police officer Sidney Hill testified that at 10 a.m. on the date in question, he responded to the scene and arrested defendant. He subsequently saw complainant, who was very upset, crying and unable to answer his questions.

Defendant testified on his own behalf. He acknowledged that he made a telephone repair service call at complainant’s apartment, but denied the story related by complainant. Defendant said he went to the basement to check the telephone lines, then went to the complainant’s apartment. She sent three of her children to school, then gave him a chair to stand on to check the telephone wires above the bathroom door. Jannette Lindsey then came in the back door and complainant, wearing only a red nightshirt, ran out of the apartment. He asked Jan where complainant went; she replied “upstairs.” Defendant decided to wait since she had left the baby unattended. After 15 minutes defendant called his supervisor who told him he was not responsible for the child and to return to work. Defendant then went to retrieve additional equipment from his truck but was arrested by Officer Hill.

The trial court reviewed the evidence, then ruled that the State had met its burden of proving defendant guilty beyond a reasonable doubt of attempted rape and unlawful restraint, which merged into attempted rape.

In his post-trial motion defendant argued, inter alia, that (1) it was incongruous to find him guilty beyond a reasonable doubt since at the preliminary hearing there had been a finding of no probable cause; (2) that the testimony of the State’s witnesses was not credible; and (3) assuming arguendo that the State’s witnesses were credible, they presented no evidence that the acts charged were committed by force or against the will of complainant.

Following arguments on the motion, the trial court stated:

“I agree that the force used here is not the degree the Court is ordinarily confronted with. We are talking about attempt rape or rape.
There were physical indicates that she [complainant] was not in accord with whatever was being tried. I am mindful that some of these acts could be foreseen or taken to mean consent, but that’s rebutted by both her physical actions and by her conduct and writing the note via her child; getting to Jannette Lindsey her friend, who comes back to her home at about — her apartment, about five or ten minutes [later].
Therefore, your Motion for a New Trial will be respectfully denied. You also requested that the Court reconsider the finding that the Court entered and that I will do.
Under all the attendant circumstances, then having reconsidered all the facts, though I still feel *** they *** do support the finding I have entered, I will change and alter my finding and find the defendant guilty of battery in that there was a physical contact of an insulting and provoking nature with the victim in this cause.
It is a Class A misdemeanor. I would vacate my finding *** [of] guilty of the attempt rape and *** [find] the defendant guilty of battery.”

The prosecution then inquired as to the reason for the altered findings. The trial court responded:

“I feel that there is a legitimate question as to what the degree of force was sufficient being mindful of all the attendant circumstances in this cause. I would enter the finding I have indicated.”

We believe that the dispositive issue in this case is whether battery was a viable conviction where defendant was charged only with attempted rape and unlawful restraint.

A criminal indictment must apprise an accused of the exact crime with which he is charged so that he may adequately prepare his defense. (People v. Ballard (1978), 65 Ill. App. 3d 831, 834, 382 N.E.2d 800, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 180, 100 S. Ct. 262.) The indictment for a particular offense serves as an indictment for all included offenses even though the latter are not specifically set forth in that indictment. (People v. Vasquez (1981), 97 Ill. App. 3d 1142, 1143, 424 N.E.2d 42.) The Criminal Code of 1961 defines “included offense” to mean:

“*** an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 2-9(a).)

A conviction of a lesser offense cannot stand where the accused was indicted only for a greater offense which does not contain all the elements of the offense of which he was convicted. (People v. Ryan (1981), 97 Ill. App. 3d 1071, 1074, 424 N.E.2d 20; People v. Vasquez (1981), 97 Ill. App. 3d 1142, 1144.) An analysis of the indictment in this case demonstrates that it did not include all the elements of battery, so the latter is not an included offense.

The attempted rape indictment charged that, with the intent to commit the offense of rape, defendant attempted to compel (complainant) to submit to an act of sexual intercourse, by force and against her will. The unlawful restraint charge alleged that defendant knowingly without legal authority detained complainant. It is unnecessary to prove that an accused touched the victim in order to sustain a conviction for either attempted rape or unlawful restraint. To the contrary, that is an element of battery under section 12 — 3(a)(2) of the Criminal Code of 1961 which provides:

“A person commits battery if he intentionally or knowingly without legal justification and by any means *** (2) makes physical contact of an insulting or provoking nature with an individual.” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a).)

Therefore battery is not a lesser-included offense of attempted rape. Since defendant was not charged with battery, the conviction for battery was not a permissible alternative and must be reversed.

We note that in its brief the State has relied on People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489, wherein the appellate court in the Fourth District referred to battery as a lesser-included offense of attempted rape. However, in Pettus, the defendant, who had been charged with attempted rape, tendered a jury instruction on battery without objection by the State. The jury then convicted him of both attempted rape and battery based upon the same acts. The appellate court vacated the battery conviction because in that case the same evidence sustained both the attempted rape and the battery. The propriety of tendering the battery instruction was not an issue in Pettus. We believe that a more accurate rationale for vacating the battery conviction would have been the prohibition against multiple convictions arising out of the same acts prescribed by People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

For the reasons set forth above, the judgment of the circuit court is reversed.

Judgment reversed.

LINN and JIGANTI, JJ., concur.

      This definition of battery is derived from section 12 — 3(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-3(a)(2)).

      In People v. Mays (1982), 91 Ill. 2d 251, 255-58, 437 N.E.2d 633, our supreme court held that battery by bodily harm (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a)(1)), is not a lesser-included offense of rape because rape may be committed where no apparent bodily harm to the victim results. (91 Ill. 2d 251, 258.) The issue whether battery by physical contact of an insulting or provoking nature may be a lesser-included offense of rape was not raised in Mays, and the court explicitly declined to address that question.