author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELANIE SCHLIG, Defendant-Appellant.
    Second District
    No. 82—618
    Opinion filed December 20, 1983.

      Lyle B. Haskin, of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Melanie Schlig, was found guilty after a bench trial of unlawful delivery of a controlled substance containing more than 30 grams of cocaine (Ill. Rev. Stat. 1981, ch. BGVz, par. 1401(a)(2)) and sentenced to imprisonment for six years. On appeal, she challenges the admission in evidence of expert testimony concerning the nature and weight of the substance in question and the sufficiency of the evidence to sustain her conviction.

Defendant was tried jointly with Gregory Duerr, not a party to this appeal, for the delivery of a quantity of cocaine on November 3, 1981. Paul Toledo, who had been acting as a confidential informant for the Du Page County sheriff’s office, testified that during the last part of October 1981, he had several conversations with Carla Szfarek (who testified at trial under her married name, Carla Szfarek Spinato) concerning the purchase of cocaine. She was Gregory Duerr’s girl friend and a friend of defendant.

Detective Michael Tellone testified that at approximately 9 p.m. on November 3, 1981, he accompanied Toledo to the parking lot of the Golden Bear restaurant in Addison, Illinois. At that time Tellone had in his possession $4,000 in currency. After they parked in the lot, defendant approached the vehicle and asked why they were so late and stated “that John and Greg were waiting for us. They, had the coke, but that we would have to go to the Outlaws on North Avenue to meet with John and Greg.” Defendant further stated that John and Greg “wanted $5,000 for the cocaine for two ounces” and Tellone responded that he would have to discuss the matter with them. Defendant asked Tellone and Toledo to accompany her in her car, but Tellone insisted that he and Toledo were to follow her to the Outlaws. The cars proceeded to a. shopping center and parked some distance from the Outlaws, in front of the Seven Brothers restaurant. Defendant again approached Tellone’s vehicle and said “that John and Greg were there and that they had the coke.” Defendant walked away from the car and returned a few seconds later in the company of Gregory Duerr. A conversation ensued between Duerr and Tellone, during which defendant remained standing next to Duerr. Duerr asked Tel-lone for $5,000 and when Tellone displayed the $4,000 which had previously been furnished to him, Duerr said, “That’s good enough for me” and then brought a third subject, John Simpson, to the car. Simpson got into the back of Tellone’s vehicle and handed Tellone an envelope containing a substance later analyzed as cocaine. Tellone began to open the envelope and requested that Duerr and defendant move away from the car; at that point defendant and the others involved in the transaction were arrested. Tellone acknowledged that he did not see defendant either with the money or the cocaine.

Paul Toledo testified that he was introduced to the people involved in this transaction through Carla Szfarek, whom he first met at a Denny’s restaurant in October 1981, and he discussed the purchase of a gram of cocaine with Szfarek and Gregory Duerr. Toledo thereafter made a purchase of one gram of cocaine from Szfarek outside her apartment on October 28. Detective Tellone was in Toledo’s car at that time and inquired about the purchase of a larger quantity. Toledo called Szfarek on November 2 and inquired about the purchase of two ounces of cocaine, and a transaction was agreed upon for the following evening. When Toledo arrived at Szfarek’s residence the following evening, defendant was present. Toledo was unable to make the transaction immediately, and Szfarek directed defendant to call “Greg” and inform him that they would be late. Toledo overheard defendant dial a telephone number and ask for Greg, and at the conclusion of the call was informed by defendant that “there shouldn’t be no problem at all.” Toledo overheard defendant make a second telephone call, after which she informed him that the price would be $5,000 for two ounces of coke and that the meeting would be between 9 and 9:30 at the Golden Bear restaurant in Addison. As the parties were leaving Szfarek’s apartment for the restaurant, defendant asked if she could accompany Toledo in his car, but he replied that he was going to pick up his cousin and declined. Toledo then picked up Detective Tellone and arrived at the Golden Bear at about 10 o’clock. Toledo’s account of the ensuing events was generally consistent with Tel-lone’s, although he testified that during the conversation at the Golden Bear defendant stated, “They’ve got the coke, and if we don’t get over there, they are going to kill us.” Toledo’s testimony concerning his prior record was confused, but he appeared to acknowledge prior convictions for burglary, two convictions for theft, and two convictions for forgery. He also had three pending charges for burglary and one for theft.

Carla Szfarek testified for the prosecution that defendant was present at the Denny’s restaurant on the evening of her initial contact with Paul Toledo. Defendant had been at a table with Gregory Duerr and another individual named Denny Reynolds when Szfarek told Duerr that Toledo wished to speak with him about buying cocaine. During this conversation, however, defendant was engaged in conversation with Reynolds. Szfarek also testified that Duerr and defendant had been present at her residence at the time she made the October 28 one-gram sale. After that sale, Szfarek had returned inside and given the $100 proceeds to Duerr, informing him that Toledo was interested in making a two-ounce purchase. At 6 p.m. on November 2, defendant had been present at Szfarek’s apartment when Paul Toledo came to inquire about the two-ounce purchase. Szfarek had placed a telephone call to John Simpson and handed the telephone to Toledo. Toledo handed the phone to defendant and defendant then asked numerous questions. concerning the arrangements for the sale, including whether two ounces of cocaine could be obtained by the following day, the amount of the price, whether defendant should call back and what time. After the call, defendant informed Szfarek that Simpson could only obtain one ounce immediately and would call someone else to see if a second ounce could be obtained by the next day, also that Simpson would call back concerning the price. Szfarek then related the events leading up to her arrest with defendant at the Seven Brothers restaurant on November 3 and acknowledged informing Toledo that Duerr wanted $5,000 for two ounces of cocaine, stating that defendant was present during this conversation.

John Simpson, Duerr’s roommate, testified that someone called his apartment three or four times on the evening of his arrest asking to speak to Greg. Simpson responded that Greg was not in, “and the next time the phone rang, it was Melanie, and she said that she couldn’t get ahold [sic] of Greg, and she wanted to know how much the coke was. That’s the one ounce.” After Simpson quoted defendant a price of $2,300, she put Paul Toledo on the phone who inquired about the price for two ounces and was told that the price would double. Although the caller identified herself as “Melanie” Simpson did not independently recognize her voice. However, he told her that he had tested the cocaine, “and it was okay.” On cross-examination, Simpson was asked about his conversation with defendant “on or about November 2 of 1981” and stated that he could not remember if it was defendant or Paul Toledo who inquired about a two-ounce purchase.

Defendant testified on her own behalf that just before Halloween she had overheard Paul Toledo and Carla Szfarek" talking in Carla’s apartment. Toledo arrived while defendant was there and told Carla he had tried the cocaine and liked it. Defendant had had a further occasion to visit Szfarek’s apartment on November 2 and when she arrived between 5 and 6 p.m. she found Toledo already there. At one point when Szfarek was out of the room, defendant and Toledo had a conversation in which Toledo said that Gregory Duerr’s roommate was going to get him some cocaine. This conversation ended when Sz-farek entered the room. On the following afternoon, November 3, defendant arrived at Szfarek’s apartment between 4:30 and 5 p.m. There was no mention of cocaine during the evening, until about 8:30 or 9 o’clock. At that time, defendant overheard Szfarek talking on the telephone. After Szfarek hung up, she told defendant that everyone was waiting for Toledo to come back with the money. Szfarek then explained that Toledo was going to buy some cocaine from John Simpson and that Szfarek was supposed to bring Toledo to the Seven Brothers restaurant to meet him. Later that same evening, Szfarek received a call from Duerr which caused her to start to cry. Defendant took the telephone from Szfarek and asked Duerr what was going on. Duerr replied that Simpson was threatening him. Simpson himself then came on the line and, expressing impatience with the delay, warned defendant that someone could get hurt. Szfarek, who was worried about Duerr, then asked defendant to accompany her. Toledo telephoned shortly thereafter, and Szfarek directed him to come to the Golden Bear in Addison at 10 o’clock. Szfarek then called Simpson and informed him that they would eventually meet at the Seven Brothers. Szfarek and defendant proceeded to the latter’s car. As they were getting in, Szfarek told defendant, “When we get there, we have to introduce Paul arid Greg to each other.” Defendant responded, “Okay, *** let’s just get over there and get out of here and go.”

When they arrived at the Golden Bear, Toledo was late. Toledo’s car, containing Toledo and Detective Tellone, pulled up to defendant’s car, and Szfarek told the two men to follow them to the Seven Brothers. Upon arriving at this second restaurant, Szfarek told defendant to approach Toledo and say that Szfarek was looking for Duerr. Defendant complied, but as she started to walk away, Duerr came up to Toledo’s car and she then went to find Szfarek and told him that she did not wish to stay near the scene of so many threats. Defendant walked back to Toledo’s car and asked where Duerr was and as she started walking away, Duerr and John Simpson approached Toledo’s car. Defendant returned to her own vehicle and was arrested.

During cross-examination, defendant acknowledged having made a statement on the night of her arrest in which she said that she had been aware the previous evening that Toledo wanted cocaine and that “Greg and John” were going to get it for him. She further stated that she knew Tellone and Toledo were at the Golden Bear to make a cocaine transaction, but denied knowing the agreed upon price.

Defendant contends first that the trial court erred in permitting Robert Baldwin, chief forensic chemist in the Du Page County sheriff’s office crime lab, to render an expert opinion on the nature of the alleged controlled substance. She argues that the procedure employed by Baldwin in testing the substance, which utilized a comparison of tracings prepared by an infrared spectrophotometer, denied defendant her constitutional rights of confrontation and cross-examination. Baldwin testified in trial that he compared tracings obtained by testing the alleged controlled substance with results obtained from a known standard and from a standard laboratory chart. As a result of this comparison, it was Baldwin’s opinion that the substance contained in the envelope obtained from Simpson was cocaine. Although she acknowledges that an expert is permitted to give an opinion based on reliable standard data and publications, defendant challenges both the use of the standard substance and the published chart as a basis upon which an expert opinion could be founded.

With respect to the published chart, defendant argues there was no testimony to establish who prepared the chart or how it was prepared. However, Baldwin identified the chart as an infrared spectrum of cocaine free base obtained from the Drug Enforcement Association [sic] which had been maintained in the laboratory for approximately five years. Defendant asserts it was improper to admit testimony based on this chart in the absence of any evidence to establish its reliability.

Defendant raises a similar challenge to the comparison made by Baldwin to the standard sample on the grounds that the standard, though kept in the lab in the manufacturer’s bottle, had been purchased prior to Baldwin’s employment and was not kept sealed. However, Baldwin testified that the standard had been obtained from Merck Chemical Company, and that the infrared spectra that he obtained from testing that sample did not exhibit any “extraneous peaks indicating contamination.” This answer, however, depended upon his comparison of the tracing from testing the standard substance with the graph obtained from the DEA. Defendant further posits that the tracings themselves may be unreliable as the spectrophotometer had not been examined or serviced since its purchase earlier in 1981. Baldwin denied that the machine was in need of service, saying he had detected no malfunctions.

Based upon her survey of the cases governing the admissibility of laboratory analyses (People v. Vance (1979), 74 Ill. App. 3d 446, 393 N.E.2d 91; People v. Brannon (1978), 59 Ill. App. 3d 531, 375 N.E.2d 840; People v. Bertram, (1977), 45 Ill. App. 3d 70, 358 N.E.2d 1357), defendant contends that the identity of a chemical test standard substance will be accepted only where circumstances tend to indicate the reliability of the standard. Among the indicia of reliability which defendant would require are multiple comparisons to the standard, demonstration of precautionary steps to preclude the standard’s contamination and demonstration that the spectrophotometer has been determined to be in proper working order.

In Illinois, chemical analysis of a suspected controlled substance will not be held invalid solely because of the speculative possibility that the substance being analyzed could have been contaminated. (See People v. Vance (1979), 74 Ill. App. 3d 446, 393 N.E.2d 91.) Further, it is not required that the chemical analyst independently determine for himself the reliability of every instrument being utilized in the examination process or of the standard substances used for comparison with the suspected controlled substance. (People v. Brannon (1978), 59 Ill. App. 3d 531, 534, 375 N.E.2d 840, 842.) With respect to the standard chart, Mr. Baldwin testified that it was published by the Drug Enforcement Association, and the court may well have interpreted this response as referring to the Drug Enforcement Administration, an agency of the Federal government. In any event, the court may have inferred that published reference works by a group whose name implies an interest in drug enforcement questions and which is distributed to laboratories was sufficiently reliable, in the absence of any contrary evidence, to be used as the basis for analysis of an unknown substance. Similarly, the trial court may have found the standard sample sufficiently reliable given that it was originally supplied by a recognized pharmaceutical company (compare People v. Brannon (1978), 59 Ill. App. 3d 531, 534, 375 N.E.2d 840, 842, with ' In re T.D. (1983), 115 Ill. App. 3d 872, 450 N.E.2d 455 (substance obtained from reputable source in original container properly found to contain substance stated on label)); that it was thereafter kept in a crime laboratory; that it was used for the purposes of analyzing suspected controlled substances and that it produced a spectrophotometer tracing comparable to the published chart. Moreover, Baldwin testified that the tracing produced by this substance failed to indicate any contamination. In view of the mutually supporting results of the field test, the results of Baldwin’s microscopic analysis of the substance and the virtual identity of the spectrophotometer tracings from the substance being tested, the standard and the published chart, we conclude there was a proper basis upon which the expert witness was permitted to state his conclusion that the substance in question was cocaine.

We also reject defendant’s attack upon the reliability of the spectrophotometer itself in view of the fact that the machine was purchased a relatively short period of time before these events, and that Baldwin was unaware of any malfunction or need for service of the instrument. Moreover, while the spectrophotometer was not tested immediately before the examination in question here, the machine is tested periodically.

Defendant next asserts that the weight of the controlled substance was a necessary element of the offense and was not proved.

Robert Baldwin, the State’s forensic chemist, testified that the weight of the substance in question was ascertained through the use of a single pan triple beam balance scale which will measure to a hundredth of a gram and had been used by him thousands of times; the scales are tested about once a month using standard calibration weights. He testified the substance in this case weighed 52.4 centigrams. Although defendant objected to this testimony in her post-trial motion, no objection was made at trial, and this issue has accordingly been waived on appeal. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.

In considering the issue for plain error, we cannot conclude that the admission of this evidence was materially erroneous and prejudicial to the accused’s substantial rights. This case does not involve a scale for the weighing of large objects (cf. People v. Fair (1965), 61 Ill. App. 2d 360, 210 N.E.2d 593 (weight scale for trucks bearing decal showing recent inspection)), nor potentially sensitive electronic equipment (Village of Schaumburg v. Pedersen (1978), 60 Ill. App. 3d 630, 377 N.E.2d 252 (traffic radar)), which require periodic official certification or testing at the time of each use. There was no evidence in the present case that the scale was inaccurate, nor did the testimony establish that testing of the scale needed to be done more often than once a month to insure its accuracy. Accordingly, we find no error, plain or otherwise, in the admission of Mr. Baldwin’s evidence concerning the weight of the substance.

Defendant next raises two challenges to the sufficiency of the evidence. She first contends that, as a matter of credibility, the evidence against her was so palpably contrary to the weight of the evidence, and so unreasonable, improbable or unsatisfactory that her conviction was not established beyond a reasonable doubt.

Defendant points to contradictions between the testimony of the State’s witnesses regarding the number, sequence and contents of her telephone conversations with Duerr and Simpson. She further questions the reliability of Carla Szfarek’s testimony in light of what defendant views as its inconsistencies, the witness’ bias and the lack of independent corroboration of Szfarek’s account of the events. Defendant raises similar contentions with respect to the testimony of Paul Toledo.

Defendant is correct that the testimony of Toledo, Szfarek and Simpson concerning the details of the purported telephone conversations cannot be totally reconciled. Despite the inconsistencies, however, all three witnesses testified that defendant had telephone conversations in which she discussed the arrangements for the sale of cocaine. This testimony was corroborated not only by defendant's admission that she was aware before departing from the Golden Bear that Toledo was going to purchase cocaine from Simpson, but by testimony from Detective Tellone that when defendant approached Toledo’s car near the Golden Bear she informed him of the price, quantity and the location for the actual sale. In view of the totality of the evidence, the inconsistencies in the testimony of prosecution witnesses may be deemed to be minor or immaterial, going only to the weight to be given to that testimony. We conclude that the evidence was not insufficient as a matter of law to sustain defendant’s conviction. People v. Kester (1979), 78 Ill. App. 3d 902, 907, 397 N.E.2d 888, 892; People v. Henderson (1976), 36 Ill. App. 3d 355, 367, 344 N.E.2d 239, 249.

Defendant contends finally that the evidence was insufficient to establish her guilt under principles of accountability. In support of this assertion, defendant appears to contend that the prosecution must establish the commission of a specific criminal act by the defendant before accountability may be found. Here, where defendant possessed neither the contraband nor the money, and where the drug sale as-sertedly would have occurred whether or not defendant was present, she concludes that the evidence failed to establish either her participation in the crime or her intent to facilitate its commission.

In order to hold a defendant accountable for the conduct of another, the State must prove beyond a reasonable doubt that: (1) defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation must have taken place either before or during commission of the offense; and (3) it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Bunting (1982), 104 Ill. App. 3d 291, 432 N.E.2d 950; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) Mere presence at the scene of a crime, even with knowledge that a crime is being committed, or negative acquiescence is not enough to make a person a principal. It is not necessary, however, to prove that the defendant participated in the commission of the act which constituted the offense. (People v. Tyler (1979), 78 Ill. 2d 193, 399 N.E.2d 975.) Evidence of conduct showing a design on the part of the defendant to aid in a crime renders the defendant accountable for the perpetrator’s actions. (People v. Rodgers (1978), 58 Ill. App. 3d 719, 374 N.E.2d 721.) A person may aid or abet without actually participating in the overt act or acts, and evidence that the accused attached herself to a group bent on illegal acts with knowledge of its design supports the inference that she shared the common illegal purpose and will sustain her conviction as a principal for a crime committed by another in furtherance of the venture. People v. Wright (1976), 43 Ill. App. 3d 458, 357 N.E.2d 224.

In deciding whether defendant abetted the commission of the delivery of cocaine, the trial court was entitled to consider not only her presence at the scene of the crime (People v. Bunting (1982), 104 Ill. App. 3d 291, 432 N.E.2d 950), but also her failure to oppose or disapprove its commission and her close affiliation with others known by her to be involved in the crime (People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209; cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714). Indeed, the court may well have considered that defendant, in conveying information concerning the arrangements for the sale at the Golden Bear, when Szfarek was afraid or unwilling to do so, attached herself to the common venture and sought affirmatively to promote its success. Although she refers to threats being made by those supplying the cocaine for delivery, she had not raised a compulsion defense. Under these circumstances, we conclude that she was properly held accountable.

Accordingly, the judgment of the circuit court will be affirmed.

Judgment affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    PAMELA HATCHER, Plaintiff-Appellant, v. DANELLE KENTNER, Defendant-Appellee.
    Third District
    No. 3—83—0110
    Opinion filed December 14, 1983.
    —Rehearing denied January 26, 1984.

      Lester Berry Smith, Ltd., of Peoria, for appellant.
    Rex K. Linder and Gary S. Schwab, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, Pamela Hatcher, appeals the granting of defendant Danelle Kentner’s motion for summary judgment by the circuit court of Tazewell County.

On January 10, 1980, plaintiff was involved in an automobile accident in Pekin, Illinois, in which her vehicle was struck by another vehicle allegedly being driven by one Danelle Kentner. Earline Kentner was the actual operator of the vehicle which collided with plaintiff’s vehicle. Daniel Kentner, Earline’s husband, was the owner of the vehicle. An investigating police officer prepared a police report on the day of the accident which correctly identified the operators of the respective vehicles.

On January 8, 1982, two days before the statutory limitations period expired, plaintiff filed her complaint for damages for personal injuries. The complaint erroneously named Danelle Kentner instead of Earline as the defendant and alleged that she was the operator of the vehicle which struck plaintiff’s automobile. Summons was issued to the sheriff of Tazewell County with a request that it be served together with a copy of the complaint upon Danelle Kentner at 537-C Monson, East Peoria, Illinois. The sheriff received the summons from the office of the circuit clerk on the day after the two-year statute of limitations had expired. The sheriff attempted to locate Danelle Kentner at the address given but was unable to do so. The summons was returned with the notation that the defendant, Danelle Kentner, was “not found” in the county. The address given was the address of Daniel and Earline Kentner. There are no facts of record indicating that service of process was obtained upon anyone in this action.

On February 9, 1982, an answer was filed to plaintiff’s complaint which also bore the name of Danelle Kentner as defendant. The defendant’s answer admitted the allegations contained in plaintiff’s complaint with regard to the identity of the owner and operator of the vehicle on the date and place of the accident as being Danelle Kentner. Defendant also filed a request to produce and interrogate-ries bearing the female name of Danelle Kentner.

When the error was discovered, plaintiff filed a motion for leave to amend her complaint to change the defendant’s name from Danelle to Earline Kentner on March 25, 1982. On July 26, 1982, the court denied plaintiff’s motion. Defendant was permitted to amend her answer by interlineation so as to deny that portion of plaintiff’s complaint which alleged that Danelle Kentner was the owner and operator of the vehicle in question.

On January 7, 1983, the court granted defendant’s motion for summary judgment from which this appeal is taken.

Plaintiff contends that it was error to deny her motion to amend since the error was allegedly only a misnomer. Additionally, plaintiff contends defendant should be estopped from denying it was a misnomer since she participated in the error herself. Plaintiff further contends that even if the error was not a misnomer, it was a case of mistaken identity and she should have been allowed to amend her complaint accordingly.

Our initial inquiry concerns the issue of whether plaintiff sued the wrong party or sued the proper party under the wrong name. We disagree with the defendant that the original designation in the complaint clearly indicates that plaintiff brought the action against Daniel Kentner, who owned the vehicle, as opposed to Earline Kentner, who operated it at the time of the collision. Defendant’s allegation is maligned by the fact that plaintiff’s complaint repeatedly refers to the defendant in the female gender. An additional factor in plaintiff’s favor is that she had the correct address for Earline Kentner despite the wrong first name. A third factor in plaintiff’s favor is that the defendant participated, either intentionally or negligently, in the error by filing a responsive pleading which failed to take issue with the alleged identity of the defendant.

The determination of whether the plaintiff sued the wrong party or whether she merely sued the proper party under the wrong name (misnomer) is crucial because the result will differ depending upon which statute is applied.

If for instance the mistake was only a misnomer, then section 2— 401(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 401(b)) provides:

“(b) Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”

If, on the other hand, the determination is made that the plaintiff

sued the wrong party, as the circuit court held and which defendant urges us to affirm, the following statute applies:

“(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set. up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant.”

From the record it appears that no service of summons was in fact accomplished on anyone involved in the lawsuit. And, contrary to plaintiff’s allegation, there is no evidence in the record that Daniel Kentner or Earline Kentner was the agent or partner of one another at the time of the accident. A mere spousal relationship between individuals does not appear to create the type of partnership or agency relationship to which the statute refers. See Cooney v. McGillivry (1978), 65 Ill. App. 3d 735, 382 N.E.2d 711, where we held that a parental relationship failed to meet the requirements of section 2— 616(d)(3).

We disagree with defendant, however, that the rest of the requirements of 2 — 616(d) were not met, but it is immaterial since the statute requires that the cause of action is barred unless all of the requirements are met and clearly (d)(3) was not.

The cases cited by plaintiff in support of her allegation that naming Danelle Kentner as a defendant was merely an example of a misnomer as opposed to naming the wrong party clearly support, in our opinion, the plaintiff’s position that plaintiff in fact named the proper party under the wrong name. (Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355; Fleshner v. Copeland (1958), 13 Ill. 2d 72, 147 N.E.2d 329; Schultz v. Gerstein (1977), 50 Ill. App. 3d 586, 365 N.E.2d 1128; Van Burkom v. Holquist (1962), 36 Ill. App. 2d 254, 183 N.E.2d 890 (abstract); Borkoski v. Tumilty (1977), 52 Ill. App. 3d 839, 308 N.E.2d 136.) Plaintiff argues that since she used pronouns which clearly did not refer to Daniel Kentner, (“she” and “her,” etc.), plaintiff’s intent was evident that she was referring to a female Kentner and not a male Kentner.

In our opinion the circuit court erred in denying plaintiff the opportunity to correct the name of Danelle Kentner to that of Earline Kentner. We believe plaintiff’s intent was clear from her pleadings despite defendant’s contention that the two first names don’t “sound” alike. To hold otherwise would, in our opinion, clearly exalt form over substance and allow defendant to deprive plaintiff of her day in court and frustrate on a minor technicality the resolution of the litigation on the merits.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed and the cause remanded with directions that plaintiff be given leave to correct the first name of the defendant in her pleadings.

Reversed and remanded.

STOUDER, P.J., and HEIPLE, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    BANKERS LIFE COMPANY, Plaintiff-Appellee, v. JAMES D. DENTON et al., Defendants-Appellants (Midlothian State Bank, Trustee, et al., Defendants-Appellees).
    Third District
    No. 3—83—0275
    Opinion filed December 29, 1983.
    Brian J. Moore, of Frankfort, and David K. Igasaki, of Will County Legal Assistance Program, Inc., of Joliet, and William L. Eaton, law student, for appellants.
    George J. Vosicky and Thomas Feehan, both of Thomas, Wallace, Feehan, Baron and Kaplan, Ltd., of Joliet, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action was brought to foreclose a mortgage insured by the United States Department of Housing and Urban Development (H.U.D.). The circuit court of Will County entered judgment in favor of the plaintiff, Bankers Life Company, after striking the first and second affirmative defenses of the defendants, James and Karen Den-ton.

On December 21, 1981, the plaintiff filed a complaint seeking to foreclose a mortgage given by the defendants to secure a note in the face amount of $27,850. The plaintiff alleged that the defendants had failed to make any payments on the loan since February 1, 1981.

The defendants raised two affirmative defenses to the complaint in their answer. The first affirmative defense alleged the plaintiff’s failure to comply with the mortgage servicing requirements contained in 24 C.F.R sections 203.604 and 203.606, namely, to obtain a face-to-face interview with the defendants before three loan installments had become past due, to seek that face-to-face interview through a certified mail request and a trip to visit the defendants at the mortgaged property, and to review its file to determine compliance with the appropriate servicing requirements.

The second affirmative defense alleged the plaintiff’s failure to seek an assignment of the mortgage to H.U.D., indicating that the defendants had met all the requirements for a mandatory assignment as set forth in 24 C.F.R. section 203.650.

The plaintiff, thereafter, moved to strike the affirmative defenses from the answer. The trial court granted that motion and subsequently entered a judgment of foreclosure and sale against the defendants.

The issue which has been presented for our review by the defendants is whether a mortgagor can raise as an affirmative defense to a mortgage foreclosure action involving a mortgage insured by H.U.D., the failure of the mortgagee to comply with certain H.U.D. mortgage servicing requirements contained in the Code of Federal Regulations.

A motion to strike admits all facts well pleaded. (Sierens v. Clausen (1975), 60 Ill. 2d 585, 328 N.E.2d 559.) Thus, for the purpose of determining whether the trial court properly granted the plaintiff’s motion to strike, all well-pleaded facts in the affirmative defenses will be taken as true.

The primary cases the defendants cited in support of their contention that the affirmative defenses were improperly striken by the trial court are Thorpe v. Housing Authority (1969), 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518, Chicago Housing Authority v. Harris (1971), 49 Ill. 2d 274, 275 N.E.2d 353, and Federal National Mortgage Association v. Bryant (1978), 62 Ill. App. 3d 25, 378 N.E.2d 333. The defendants argue these cases are authority for the claim that H.U.D. expressly requires compliance with the mortgage servicing re- . quirements contained in the Code of Federal Regulations prior to the commencement of mortgage foreclosure proceedings by virtue of the mandatory language contained in such regulations.

Thorpe v. Housing Authority (1969), 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518, involved a H.U.D. circular which stated that before instituting eviction proceedings, local housing authorities operating federally assisted projects should inform the tenant of the reasons for eviction, giving him an opportunity to make a reply or explanation. The United States Supreme Court found that the circular’s notification procedure furthered the goals of the Federal housing acts and had been properly imposed upon local housing authorities under H.U.D.’s wholly independent rule-making power. The court viewed the circular’s language to be mandatory and held that housing authorities of federally assisted public housing projects must apply the requirements of the circular before eviction proceedings could be commended.

In Chicago Housing Authority v. Harris (1971), 49 Ill. 2d 274, 275 N.E.2d 353, the Illinois Supreme Court held that a tenant in a federally assisted public housing project whose lease is subject to termination because of undesirability must be given an administrative hearing upon request in accordance with a grievance procedure set forth in a H.U.D. circular. Again, the court deemed the circular’s requirements to be mandatory and part of H.U.D.’s general rule-making authority.

The foreclosure of a H.U.D. insured mortgage was the subject of Federal National Mortgage Association v. Bryant (1978), 62 Ill. App. 3d 25, 378 N.E .2d 333. The decision of the court that foreclosure was inappropriate was based upon State statutory and case law and H.U.D. regulations allowing the cure of a default to preclude a foreclosure proceeding.

The language contained in the H.U.D. mortgage servicing requirements cited by the defendants in their affirmative defenses is mandatory and expressly requires compliance. These requirements also have the force and effect of law, having been adopted as regulations pursuant to the authority conferred on H.U.D. by the United States Congress in 12 U.S.C. sections 1709(a), 1709(b)(1), 1715(b), 1715(u) (1982); and 42 U.S.C. section 3535(d) (1976).

24 C.F.R. section 203.500, entitled “Mortgage servicing generally,” states that it is H.U.D.’s intent that no mortgagee commence foreclosure or acquisition of the property until the requirements of sections 203.650 thru 203.662 have been complied with. 24 C.F.R. section 203.650 is entitled “Assignment of mortgages” and was the subject of the defendants’ second affirmative defense.

24 C.F.R. section 203.604, entitled “Contact with the mortgagor,” states that the mortgagee must have a face-to-face interview with the mortgagor or make a reasonable effort to arrange such a meeting before three full monthly mortgage installments are unpaid. Other provisions throughout this section utilize the word “shall” in further describing its requirements.

24 C.F.R. section 203.606, entitled “Pre-foreclosure review,” indicates that the mortgagee shall review its file relating to the servicing of a mortgage before initiating foreclosure in order to assure itself that the case has been handled in accordance with the H.U.D. mortgage servicing requirements. Sections 203.604 and 203.606 were the subject of the defendants’ first affirmative defense.

It is evident from the language of the servicing regulations that the mortgagee must comply with these provisions prior to the commencement of a foreclosure proceeding. Therefore, in accordance with the reasoning set forth in Thorpe, Harris and Bryant, we believe that the failure to comply with these servicing regulations which are mandatory and have the force and effect of law can be raised in a foreclosure proceeding as an affirmative defense.

While it is true that 24 C.F.R. section 203.500 provides that a pattern of refusal or failure to comply with the servicing requirements will be cause for withdrawal of a mortgagee’s approval to participate in the Federal mortgage insurance program, we do not believe this to be an adequate remedy for the individual mortgagor. The legislative purpose of the National Housing Act set forth in 12 U.S.C. section 1701(t), is to assist in providing a decent home and a suitable living environment for every American family. Thus, the primary beneficiaries of the act and its implementing regulations are those receiving assistance through its various housing programs. This would include the defendants as mortgagors of a H.U.D. insured mortgage.

Therefore, in order to effectively insure that the interests of the primary beneficiaries of the H.U.D. mortgage servicing requirements are being protected, mortgagors must be allowed to raise noncompliance with the servicing requirements as a defense to a foreclosure action. H.U.D.’s withdrawal of a mortgagee’s approval to participate in the mortgage insurance program after repeated violations of the servicing requirements is a useless remedy for the individual faced with the immediate problem of the foreclosure action; an action which could possibly be avoided by either assignment of the mortgage to H.U.D. or further efforts to arrange a revised payment plan.

In addition, it is specifically stated in 24 C.F.R. section 203.500 that H.U.D. takes no position as to whether a mortgagee’s refusal or failure to comply with sections 203.650 thru 203.662 is a legal defense to a foreclosure action, leaving the matter to be determined by the courts. Nothing is stated in this respect with reference to sections 203.604 and 203.606. H.U.D. is, therefore, taking a neutral position which has no effect on our determination of this issue.

The plaintiff’s major contention in opposition to the defendants’ position is that the defendants’ affirmative defenses are in essence implied remedies and, thus, must meet the requirements of Cort v. Ash (1975), 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080, regarding the implication of a private cause of action from statutory provisions which do not expressly provide for such an action. In Cort, the United States Supreme Court held that a private cause of action by a corporate stockholder for derivative damage relief could not be maintained under the terms of a criminal statute prohibiting corporations from making contributions or expenditures in connection with Federal elections.

We do not believe that the requirements of Cort are applicable to the instant case. Cort dealt with the implication of a private cause of action involving the substantive rights of a corporate shareholder. Here we have procedural requirements presented by way of affirmative defenses, namely, the prerequisites to filing a foreclosure action involving a federally insured mortgage. The defendants are not requesting the court to fashion a remedy or award money damages. The defendants are merely asking the court by the assertion of their affirmative defenses to bar the foreclosure action so that the mortgagee can comply with the H.U.D. mortgage servicing requirements.

As additional support for its position, the plaintiff has cited Roberts v. Cameron-Brown Co. (5th Cir. 1977), 556 F.2d 356. In that case, a mortgagor of a federally insured mortgage brought an action against the Federal National Mortgage Association and a private mortgagee for injunctive relief to prevent a foreclosure action. One of the issues presented to the court was whether a private cause of action could be implied to allow the mortgagor to assert as a defense to the foreclosure action that the mortgagee had failed to comply with the mortgage servicing guidelines which were contained at that time in the H.U.D. Handbook and were not a part of the Code of Federal Regulations. The court applied the Cort analysis in rejecting the implication of a private cause of action, stating that the Handbook dealt only with the relationship between the government and the mortgagee and that H.U.D. never intended the mortgagor to be a third-party beneficiary of the policy guidelines set forth in the Handbook. The court also stated that H.U.D. had chosen not to publish the Handbook, thus, prohibiting it from having the force and effect of law.

Since Roberts was decided, the mortgage servicing requirements contained in the Handbook have been published in the Federal Register and the Code of Federal Regulations, giving them the force and effect of law. Because of this fact, the precedential value of the Roberts case has been considerably lessened. Furthermore, Roberts dealt with the implication of a private cause of action and not with the assertion of an affirmative defense. The Cart analysis has always been applied in the context of an implied cause of action, not an affirmative defense. Therefore, we believe that the holding in Roberts is not controlling in the case at hand.

Accordingly, for the reasons set forth above, the judgment of the circuit court of Will County is reversed and the case is remanded for further proceedings consistent with the opinions expressed herein.

Reversed and remanded.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE LEE MARTIN, Defendant-Appellant.
    Fourth District
    No. 4—83—0146
    Opinion filed December 22, 1983.

      G. Ronald Kesinger, of Jacksonville, for appellant.
    John E Dahlem, State's Attorney, of Virginia, for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Pursuant to a plea agreement, defendant was sentenced to three years’ imprisonment in Cass County case Nos. 82-CF-38 and 82-CF-39, the sentences to run concurrently with the five-year sentence imposed upon revocation of his probation in Cass County case No. 81-CF-75. Defendant had posted $500 cash bail in each of the aforementioned cases. Defendant subsequently assigned his interest in the bail in case Nos. 82-CF-38 and 82-CF-39 to attorney G. Ronald Kesinger in consideration for Kesinger’s promise to represent and defend him in the circuit court of Cass County for the crimes with which he was charged. Following sentencing in these cases, defendant filed a motion for return of the bail monies in case Nos. 82-CF-38 and 82-CF-39, $1,000 less $274.20 (10% and court costs), to his attorney per the previously filed assignment. Following a hearing on the motion, Judge Lipe took the matter under advisement and thereafter filed a memorandum of opinion denying the motion and directing the clerk of the court to apply the bail monies to satisfy the restitution ordered in case No. 81-CF-75 before releasing any funds to defendant’s assignee. Defendant appeals the judgment of the circuit court of Cass County. We reverse.

The question presented is whether when a defendant is sentenced to a term of imprisonment the trial court may order the application of bail money in that case to satisfy an order of restitution in a separate case.

At the hearing on the motion for return of bail money, the State’s Attorney declined to take a position but stated that the clerk of the court felt the bail money should be applied to restitution in case No. 81d3F-75 prior to being returned to defendant or his assignee. Defense counsel argued that these bail monies should not be subject to the restitution order in case No. 81-CF-75. The court took the matter under advisement. In the memorandum of opinion subsequently filed, the court considered the motion as requiring that a choice be made between withholding available cash from either a crime victim, as restitution, or an attorney, for services rendered. The judge reasoned that (1) the restitution in case No. 81-CF-75 was ordered prior to the disposition in case Nos. 82-CF-38 and 82-CF-39; (2) since attorney Ke-singer represented defendant in these three cases and in negotiating a plea in Schuyler County case No. 81-CF-16, wherein a two-year sentence was negotiated to run concurrently with all other sentences imposed, counsel was or should have been aware of both the restitution order in case No. 81-CF-75 and the financial condition of his client before accepting the cases; and (3) that counsel could have protected himself from the dilemma by refusing to accept employment, whereas the victim of the crime had been unable to protect himself from defendant’s criminal act. The judge concluded that defense counsel, as assignee, should be paid for his services but would have to rely upon the incarcerated defendant to pay him when funds became available.

Defendant contends that the language of section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f)) should not be construed so expansively as to allow a trial court to order the application of bail monies, after costs and any fine in the case for which security was posted, to fulfill defendant’s obligations in other cases. Section 110 — 7(f) provides:

“When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f).)

We agree that the statute should not be given such an expansive construction. Upon consideration of section 110 — 7 concerning the deposit of bail security in its entirety, we hold that the trial court’s authority to order deductions from the bail monies is limited to those obligations arising in the case for which the bail was posted as security.

The decision in People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394, cited by the trial court, does not mandate a contrary result. In Dorsey, the defendant complained that an injunction entered by the domestic relations division of the circuit court against returning to him the money posted as bail on these and other criminal charges operated to deny him his right to counsel of his choice. He contended that the domestic relations division was without authority to enter this particular order enjoining the return of his bail bond deposits to protect the interest of a private party. Although defendant was represented by counsel in the marriage dissolution proceedings, no interlocutory appeal was taken from the injunction against returning the bail posted to him. The court found that defendant erred in his apparent assumption that by making a bail bond deposit he in effect created a fund for the payment of his legal fees; since there was an actual dispute about the ownership of the funds posted as security, the appropriate disposition of the money enjoined was an issue to be determined by the court in the dissolution proceedings and that court’s injunction was properly issued to preserve the disputed property pendente lite. The court found that the trial judge in defendant’s criminal cases correctly ruled that he lacked authority to vacate an effective order of another branch of the court. The procedural facts in Dorsey distinguished the bail bond question therein from that presented in this appeal.

Reversed.

GREEN and MILLER, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAIR E. VISGAR, Defendant-Appellant.
    Second District
    No. 82—314
    Opinion filed December 20, 1983.

      G. Joseph Weller and John J. Barrett, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko,, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Clair E. Visgar, was charged by information with one count of indecent liberties with a child based on lewd fondling (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a)(3)) and, in an amended information, with a second count of the same offense based on sexual intercourse (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a)(1)). He was found guilty of both counts after a jury trial in the circuit court of Winnebago County, judgment was entered on both counts, and he was sentenced to four years’ imprisonment. On appeal, he claims certain errors occurred with regard to discovery, evidence, and argument of counsel. We affirm.

The trial centered on the allegations of defendant’s minor daughter that her father lewdly fondled her and had sexual intercourse with her in their South Beloit home on the night of July 16, 1980. We shall recite the evidence adduced at trial and the procedural history of this case only as is necessary for the disposition of the issues raised.

I

Defendant first contends that the trial court erred in denying his motion to have the complainant examined by a medical doctor. He argues that because such a physical examination would have revealed whether the complainant’s hymen was intact, it was highly relevant to the credibility of her allegation that defendant had had intercourse with her.

The State maintains that the trial court may have been powerless to order a physical examination. The supreme court in People v. Glover (1971), 49 Ill. 2d 78, 82, held that “[t]here is no question of the [trial] court’s jurisdiction to order an examination of the complaining witness in a case involving a sex violation ***.” The State points out that the case relied upon by the Glover court for that proposition, People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, involved a plaintiff in a civil case, not a complainant in a criminal case. However, the proposition was stated unequivocally in Glover and has been restated without question by the supreme court in People v. Rossi (1972), 52 Ill. 2d 13, and numerous times by the appellate court (see, e.g., People v. Davis (1981), 97 Ill. App. 3d 299, 422 N.E.2d 989; People v. Dentley (1975), 31 Ill. App. 3d 679, 334 N.E.2d 774). The State further points out that Rossi and Dentley involved psychiatric rather than physical examinations. However, involved in Dempsey was a physical examination, in Glover both a psychiatric and an ophthalmological examination, and in Davis both a psychiatric and a fingerprint examination of the complainant. Moreover, the State provides no reason to distinguish between psychiatric and physical examinations of the complainant with regard to a trial court’s jurisdiction to order one. Thus, we conclude that a trial court has jurisdiction to order a physical examination of a complaining witness in a case involving a sex offense.

Apart from jurisdiction to order a physical examination, both parties acknowledge that a trial court’s discretion to order such an examination of the complainant in a sex offense case is grounded upon the defendant’s presentation of a compelling reason to do so. (People v. Glover (1971), 49 Ill. 2d 78.) Defendant argues that his compelling reason is to determine whether the complainant’s hymen was intact.

However, as the State points out, such a determination would have been irrelevant to the charge against defendant as it read at the time of defendant’s motion. At the time of defendant’s motion, he was charged only with having “lewdly fondled or touched” the complainant. Where there is no allegation that a complaining witness was injured'or that any penetration had been made into her vagina, a doctor’s examination of the witness would not be necessary for any purpose. (People v. Woods (1973), 13 Ill. App. 3d 860, 301 N.E.2d 593.) Although the information was later amended to include a count alleging intercourse, the motion was not renewed. Because the trial court was not presented a compelling reason to order a physical examination of the complainant, it did not err in denying defendant’s motion.

II

Defendant claims that there was a violation of discovery rules with regard to a physical examination of the complainant which at trial she acknowledged had taken place. He contends that the State should have disclosed that examination before trial and that the trial court should have disclosed it after its in camera inspection of the file of the Department of Children and Family Services (DCFS) on the complainant.

Upon cross-examination of the complainant at trial, she indicated that she had been examined by a doctor concerning the subject accusations when she went into foster care. She stated that a Pap smear was involved. This was the only indication anywhere in the original record of a physical examination of the complainant. Although defendant’s pretrial motion for discovery included a request for the results of any physical or mental examinations made in connection with this case, no such results were provided, as the State indicated that none existed.

Defendant also served a subpoena duces tecum upon DCFS, requesting all of its records of the complainant. After the State moved to quash the subpoena on the basis of confidentiality (see Ill. Rev. Stat. 1981, ch. 23, par. 2061), the trial court examined the DCFS file in camera and declined to disclose its contents to defendant on the basis of confidentiality and that defendant already had information on "the matters of interest to him. Although the trial court refused to make the DCFS file part of the record, we granted defendant’s motion, pursuant to Supreme Court Rule 415(f) (87 Ill. 2d R. 415(f)), for an order compelling the Winnebago County circuit court to produce the DCFS file for this court’s inspection.

Upon thorough examination of the DCFS file, we find only two short references to any gynecological examination conducted upon the complainant which might possibly have been made in connection with this particular case. Both references are dated July 29, 1980, seven days after DCFS entered the case and 13 days after the incident. Both references were purportedly written by William Frank of DCFS. In the first reference, it is stated that the complainant was transported to the Winnebago County Health Department for a pelvic examination. A pregnancy test was negative and a Wassermann (venereal disease) test was conducted with results expected in two weeks. In the second reference, Frank notes only that he has conferred with the person who transported the complainant for a physical examination and that testing for VD was included, for which results would be in in about two weeks. No other information about that examination can be found and the results of the Wassermann test, if received, are not included in the DCFS file.

Disclosures to the accused in criminal cases are governed by Supreme Court Rule 412 (87 Ill. 2d R. 412). That rule provides in pertinent part as follows:

“(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations ***.” (87 Ill. 2d R. 412.)

The State’s duty of disclosure under this rule is a continuing one, requiring prompt notification of the defendant of the discovery of any additional material or information, up to and during trial. (87 Ill. 2d R. 415(b); People v. Watson (1979), 76 Ill. App. 3d 931, 395 N.E.2d 682.) However, the State cannot be accused of withholding evidence where neither the State nor its agents are in possession of the evidence. People v. Molsby (1978), 66 Ill. App. 3d 647, 383 N.E.2d 1336; People v. Gaitor (1977), 49 Ill. App. 3d 449, 364 N.E.2d 484.

With regard to the State’s failure to disclose the results of the complainant’s physical examination, the appropriate sanction for failure to comply with discovery rules is not necessarily a new trial, but may be an order of compliance, a continuance, exclusion of the evidence, or other order which the trial court deems just under the circumstances. (87 Ill. 2d R. 415(g)(i); People v. Watson (1979), 76 Ill. App. 3d 931, 395 N.E.2d 682.) The invocation of the appropriate remedy for failure to disclose evidence during discovery is left to the sound discretion of the trial court and will not be reversed unless prejudice or surprise is demonstrated. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.) Here, defendant’s trial counsel did not seek a continuance in order to locate the results of the examination to which the complainant referred. Rather, he moved for disclosure at the close of the State’s case. Generally, the failure to seek a continuance waives a claim of discovery error based upon surprise. (People v. Nelson (1980), 92 Ill. App. 3d 35, 415 N.E.2d 688, cert, denied (1981), 454 U.S. 900, 70 L. Ed. 2d 217, 102 S. Ct. 404.) Thus, we consider defendant’s allegation of error to be waived by his pursual of an inappropriate, more extreme remedy at trial.

Even aside from waiver, however, we find no merit in defendant’s allegation of discovery violation by the State. There is no indication that the State was aware of a physical examination of the complainant or possessed its results prior to defense counsel’s cross-examination of the complainant at trial. It has been held repeatedly under similar circumstances that no discovery violation has occurred, even if absence of the subject matter remains unexplained. See, e.g., People v. Rosenborgh (1974), 21 Ill. App. 3d 676, 315 N.E.2d 545, cert, denied (1975), 421 U.S. 919, 43 L. Ed. 2d 787, 95 S. Ct. 1584; People v. Molsby (1978), 66 Ill. App. 3d 647, 383 N.E.2d 1336; People v. Gaitor (1977), 49 Ill. App. 3d 449, 364 N.E.2d 484; People v. Steptoe (1976), 35 Ill. App. 3d 1075, 343 N.E.2d 1.

The fact that the DCFS file contained some information about physical examination of the complainant does not alone establish improper suppression of discoverable material by the State. In People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121, possession by the Chicago Transit Authority (CTA) of a doctor’s report on the victim in a battery case was not imputed to the State for purposes of Rule 412 disclosure requirements. The Sakalas court relied upon the language of paragraphs (f) and (g) of Rule 412 (87 Ill. 2d R. 412(f), (g)) to hold that “while the State is expected to know of the existence of material in the possession of the police department, as it is an investigative body, there is no expectation that the State know of information possessed by a non-investigative governmental body such as the CTA.” (85 Ill. App. 3d 59, 74, 405 N.E.2d 1121, 1133.) Similarly here, knowledge of the physical examination of the complainant by DCFS, a non-investigative governmental body, will not be imputed to the State. Without knowledge of the examination or possession of its results, the State cannot be found to have suppressed the material. Sakalas; People v. Molsby (1978), 66 Ill. App. 3d 647, 383 N.E.2d 1336.

But defendant also claims error by the trial court in not divulging information about the examination after its in camera inspection of the DCFS file. Sections 11 and 11.1 of the Abused and Neglected Child Recording Act, under which the State sought to block disclosure of the contents of the DCFS file, provided in pertinent part as follows:

“Sec. 11. All records concerning reports of child abuse and neglect and all records generated as a result of such reports, shall be confidential and shall not be disclosed except as specifically authorized by this Act or other applicable law. ***”
“Sec. 11.1. A person shall have access to the records described in Section 11 only in furtherance of purposes directly connected with the administration of this Act. Such persons and purposes for access include:
* * *
(7) A court, upon its finding that access to such records may be necessary for the determination of an issue before such court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it;
* * * >>
HI. Rev. Stat. 1979, ch. 23, pars. 2061, 2061.1

In this case, then the purpose of the trial court’s in camera inspection pursuant to Rule 415(f) and section 11.1 was to select out of the DCFS file that information which was (1) requested, (2) discoverable under law, and (3) necessary for the resolution of an issue before it, while keeping confidential all else.

Rule 412(a)(iv) requires the disclosure upon an accused’s request of “any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations.” (Emphasis added.) (87 Ill. 2d R. 412(a)(iv).) Defendant’s discovery motion requested production of evidence using the same language as the rule. Thus, only the results of examinations were mandatorily discoverable and only results were requested from the State. After the trial court’s inspection of the DCFS file, defense counsel spelled out with particularity what he had hoped to learn from the file: information about the complainant’s mental health and whether the complainant had made prior allegations of sexual abuse.

The information regarding the mere fact of whether a physical examination was conducted was never requested and, unless accompanied by the results of that examination, was not subject to mandatory disclosure. The information in the DCFS file contains only the fact that a pelvic examination was made on or about July 29, 1980, and that a pregnancy test proved negative. The only information possibly to be found in the results of a physical examination which defendant argues would be “necessary for the resolution of an issue” in this case would be whether the complainant’s hymen was intact, a fact not revealed in the DCFS file. Therefore, the file contained no information which was requested by defendant, subject to mandatory disclosure, and necessary for the resolution of an issue before the court. The trial court’s failure to disclose was not error.

Ill

Defendant also contends that the trial court erred in denying his motion to have the complainant mentally examined by a psychiatrist. As with the physical examination issue, the State first argues that the trial court lacked jurisdiction to order such an examination. The Illinois Supreme Court has specifically held that a trial court may order a psychiatric examination of the complaining witness in a criminal case involving a sex violation. (People v. Rossi (1972), 52 Ill. 2d 13; People v. Glover (1971), 49 Ill. 2d 78.) Once that court has declared the law on point, this court may not overrule or modify that ruling. (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906.) We note that Illinois is just one of the many States which has permitted its courts the power to order such an examination (see Annot., 18 A.L.R.3d 1433 (1968 & Supp. 1983)), and that recently enacted Public Act 83 — 289 would prohibit court-ordered mental examinations of sex victims only after January 1,1984.

Whether to order a psychiatric examination of the complainant in a sex offense prosecution was within the discretion of the trial court, and the moving party must have presented a compelling reason for such examination. (People v. Glover (1971), 49 Ill. 2d 78; People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370.) As a compelling reason, defendant points to the fact that the complainant had been placed in a psychiatric ward for children for two months in 1979 and that she had previously alleged sexual misconduct toward her by her step-father. Defendant argues that these facts suggest that “significant impeachment evidence” may have been produced by a mental examination and that the complainant may have lied about her father’s conduct.

With regard to the complainant’s stay in a psychiatric ward, defendant fails to establish how that fact relates to her competency to testify. The complainant testified that she went to the institution because she “was upset and angry *** [about] the fact that I didn’t have a family.” Previous hospitalization for mental problems by itself does not present a compelling need to order a psychiatric examination where the defendant fails to establish a connection between the witness’ mental problem and her ability to give competent testimony. See People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370; People v. Dentley (1975), 31 Ill. App. 3d 679, 334 N.E.2d 774.

Nor would the complainant’s prior allegation of sexual misconduct by her step-father have warranted her psychiatric examination. Defendant’s suggestion that that previous allegation was a fabrication is unfounded. The complainant testified that her step-father had pleaded guilty to the offense and had been sentenced to 18 months’ imprisonment. Defendant does not now challenge the truth of this testimony. We do not view it to be a compelling reason to submit the complainant here to a psychiatric examination merely because defendant suggests without substantiation that a previous sexual misconduct allegation by her might have been the result of “some fantasies.” The fact that fabrication on the part of the complainant could not be totally ruled out was counterbalanced adequately by defendant’s opportunity, fully employed, to attempt to impeach her during cross-examination with regard to the previous allegation, as well as her psychiatric hospitalization. (See People v. Seel (1979), 68 Ill. App. 3d 996, 386 N.E.2d 370.) Her veracity could adequately be weighed by the trier of fact without a psychiatric examination.

Defendant cursorily adds that he was improperly denied access to the results of any previous psychiatric examinations conducted on the complainant and found in the DCFS file. In quashing defendant’s subpoena duces tecum with regard to the DCFS file, the court indicated that “the matters that maybe [sic] in the file in regard to the mental health of [the complainant] and whether she has ever had treatment or been adjudicated incompetent or diagnosed with a psychosis *** are within the knowledge of this defendant ***.” Defense counsel acknowledged to the trial court that he had information about the complainant’s psychiatric treatment in Florida in 1979. Our inspection of the DCFS file reveals no other psychiatric examination of the complainant before trial. Because defendant was not denied any psychiatric information from the file not already within his knowledge, we find no error.

IV

Defendant next contends that it was error for the prosecutor in her rebuttal argument at the close of trial to point out that defendant could have but did not call a doctor to testify about the complainant’s condition. Defendant argues on appeal that the prosecutor’s remarks were improper because he had in fact moved to have the complainant examined by a doctor but was prevented by the State’s objection which was sustained by the court.

During his closing argument, defense counsel made the following remarks:

“This girl was supposedly examined by a medical doctor on July 22nd, 1980. If that’s true or not, we only have the girl’s word. You better believe if there was a doctor involved in this and it could support any evidence to substantiate what that girl was saying, the state would have brought that doctor in here.
What did he find that we don’t know about? I don’t have the reports. I haven’t seen them. But I sure would have liked to have known if that girl was a virgin on July 22nd, six days after this was suppose [sic] to have taken place. I sure would have liked to know that. It sure would have helped us make up our mind a little bit.”

During the prosecutor’s rebuttal argument, she responded and defense counsel objected as follows:

“MS. CHODOS: ***Mr. Russell wants to know why we didn’t bring the doctor in. Of course, Mr. Russell can call witnesses just like the state. He didn’t bring a doctor in.
MR. RUSSELL: Judge, I didn’t even know about the doctor. I object. She knows that.
THE COURT: Overruled.”

It is well established that while it is error for a prosecutor to comment on the failure of the accused to produce witnesses who are equally accessible to the prosecution, it is not error for the prosecutor to reply to a question propounded by defense counsel why he did not bring in the same witness, so long as the remarks are properly limited to a reply. (People v. Izzo (1958), 14 Ill. 2d 203, appeal dismissed and cert, denied (1960), 362 U.S. 403, 4 L. Ed. 2d 864, 80 S. Ct. 812; People v. Wheeler (1955), 5 Ill. 2d 474; People v. McElroy (1980), 81 Ill. App. 3d 1067, 401 N.E.2d 1069.) Here, the prosecutor’s remarks were limited and directly responded to defense counsel’s remarks questioning the State’s failure to produce the doctor who examined the complainant after she was taken into foster care.

Defendant points out on appeal that he was denied the opportunity to call an examining doctor by the State’s sustained objection to his motion to have the complainant examined by court order. Therefore, he argues, it was unfair for the prosecutor to say that he could have produced the testimony of the doctor. However, this is the first time the defendant raises this argument. The remarks of defense counsel to which the prosecution was responding referred only to the doctor who the complainant indicated had examined her, not to a doctor that the court might have appointed. When defense counsel objected during rebuttal argument, his basis was only that he “didn’t even know about the doctor.” And, during the hearing on defendant’s motion for a new trial, he argued error in the prosecutor’s argument only as follows:

“Well, Judge, I objected at that time. I still object. I didn’t even know there was a doctor until the last day of trial. How could I possibly bring in the doctor? I think it is prosecutorial misconduct when she states I should have brought the doctor in. I had no way of knowing there was a doctor involved. I never received any reports — still haven’t received any reports as to this girl being examined.”

Thus, the only question presented to the trial court, and therefore the only question that may be argued to this court (People v. Curry (1973), 56 Ill. 2d 162), was the propriety of the prosecutor’s remarks with reference to the doctor who had already examined the complainant.

Defendant’s trial argument, that the remarks were improper because defense counsel did not know of the doctor’s examination and therefore could not have called that doctor, is not pursued on appeal. It is without merit in any event, because the doctor could properly have been called to testify equally as well by either party, but neither did so because of ignorance of the potential witness’ existence. In People v. Pearson (1972), 52 Ill. 2d 260, both parties had been unsuccessful in their attempts to reach the potential witness. After defense counsel in argument noted the State’s failure to produce the witness, the prosecutor responded, “*** counsel knows why she wasn’t brought into court.” The supreme court, citing People v. Wheeler (1955), 5 Ill. 2d 474, held the prosecutor’s retort permissible as one invited by defense counsel’s remarks. (People v. Pearson (1972), 52 Ill. 2d 260, 274.) Similarly, it was permissible for the prosecutor to state, “the man is dead” in response to defense counsel’s question “Where is he?” regarding an uncalled witness. (People v. Griggs (1977), 51 Ill. App. 3d 224, 227-28, 366 N.E.2d 581, 584.) Thus, it is as proper for the State to respond to a defense counsel’s questioning of the absence of a potential witness where both parties face the same impediment to calling a witness as it is proper where neither party is impeded.

Even if the prosecutor’s remarks were considered improper, reversal would not be warranted. A trial court is given wide latitude in determining the propriety of the closing argument; a reviewing court will not disturb the trial court’s determination absent a clear abuse of discretion based upon the record as a whole and the arguments in their entirety. (People v. Perez (1983), 113 Ill. App. 3d 143, 446 N.E.2d 1229.) The remarks at issue here are the only ones challenged, and we do not view them as causing undue prejudice to defendant.

V

Defendant contends that the testimony of the complainant’s sister regarding the fact that the complainant had told her about the alleged offense was improperly admitted. He claims that that testimony did not fit the corroborative complaint exception to the hearsay rule, and, further, that even that exception would not permit the testimony of the complainant’s sister that the complainant had indicated to her that “it had been going on *** for some time.” Since this issue was neither raised in defendant’s post-trial motion nor argued at the hearing on that motion, we consider it waived. People v. Baynes (1981), 88 Ill. 2d 225.

Even if not waived, we consider any error in admitting the complainant’s sister’s corroborative complaint testimony to be harmless. Before she testified, the complainant herself, without objection, testified that she had told her sister about the incident. Further, the complainant testified that her father had had sexual intercourse with her numerous times between January 1980 and the incident at issue. In People v. Robinson (1978), 73 Ill. 2d 192, hearsay testimony by the complainant’s sister and a police officer of her statements to them regarding details of the rape and the assailant’s identity, although evidence beyond the mere fact of complaint, was admitted. The supreme court, however, found no reversible error because all of the hearsay information was also established directly in the testimony of the complainant, the out-of-court declarant whom the defense counsel could and did cross-examine. Accord, People v. Leggans (1980), 80 Ill. App. 3d 51, 399 N.E.2d 349; People v. Wilcox (1975), 33 Ill. App. 3d 432, 337 N.E.2d 211.

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

Affirmed.

HOPF and NASH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS WEIS, Defendant-Appellant.
    Second District
    No. 82—339
    Opinion filed December 20, 1983.
    G. Joseph Weller and Manuel Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James S. Williams, State’s Attorney, of Mt. Carroll (Phyllis J. Perko and Cheri A. Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Dennis Weis, was convicted of deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 3) and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3) and was sentenced to concurrent terms of imprisonment of nine years and two years. The jury was unable to agree on a charge of rape against defendant and it was nolle prossed. Defendant appeals, contending he was denied a fair trial when the State was permitted to introduce evidence of other offenses by him against the complainant which occurred prior to the offenses for which he was being tried, and, that he was improperly convicted and sentenced for both deviate sexual assault and the lesser included offense of unlawful restraint.

Evidence introduced in trial that defendant and the complainant, Karen Garrow, had lived together for about 21/2 years when she ended the relationship in July 1981. On September 12, 1981, defendant forcibly abducted Karen from her place of employment at knife point and drove her to a secluded area of a campground in rural Carroll County. During the drive she resisted his attempts to unfasten her clothing and at one point he cut the center strap of her brassiere with his knife. On a stop en route defendant demanded she perform fellatio on him, suggesting he might drown her in a nearby pool of water if she did not comply. She refused, testifying in trial she had never performed that act while living with defendant.

At the campground, defendant engaged in sexual intercourse with Karen and the parties disputed in trial whether or not she had consented to do so. Afterwards, while sitting in the car talking, a truck approached and defendant held his knife against her legs telling her not to cry out. When the truck passed, defendant opened his trousers and again demanded she perform an act of fellatio, telling her he would slash her breasts if she refused. He forced her head down and she complied with his demand.

A short time later two men walked nearby and Karen exited the car and asked for their help. She told the men she had been abducted that morning and had to call the police. The men described Karen’s eyes as red and puffy and that she looked as though she had been crying. Defendant also left the car and threatened to kill himself, telling her to turn around and watch him. He then drove off, going first to the cemetery where his parents were buried, then to the sheriff’s office where he advised officers he had done something wrong and believed the best thing was to come in rather than having them look for him.

Defendant testified on his own behalf, corroborating much of the complainant’s testimony. He stated, however, that the sex acts between them were consensual and he did not threaten her with his knife at the time the acts of intercourse and fellatio occurred.

Testimony relating to defendant’s conduct towards the complainant on other occasions was also adduced by the State, over defendant’s objections, which he asserts were erroneously admitted in evidence.

Karen testified she had brought charges of aggravated assault and battery against defendant after an altercation between them on August 3, 1981, and the State introduced into evidence a certified copy of defendant’s battery conviction. It was also brought out by defendant’s counsel in cross-examination of Karen that defendant had actually raped her on August 3, although she had not reported that aspect of the matter to the police. Karen also testified that in July 1981, after she had moved out of the apartment they shared, defendant attempted to have sexual intercourse with her in his house where she was visiting. Subsequently, on cross-examination of defendant, the State questioned him regarding that incident and he stated he had then desired to have sex with her, but she ran out of the house. He stated that he attempted to dissuade her from leaving and in doing so accidentally broke a window in her car.

Susan Garrow, Karen’s sister and roommate, testified that she, Karen and two men friends were in a restaurant on September 11, 1981, when defendant arrived. Their friends persuaded defendant to leave the restaurant, but when they all later went to the parking lot defendant was waiting. He approached the group and Karen told him to leave; he did so after remarking, “As long as I’m suffering she is going to suffer too.” When Karen and Susan returned to their apartment later that night they found someone had been there and Karen’s bedroom closet was disarrayed. Karen testified that during her abduction the next day defendant told her he had broken into the apartment and waited for her for a time in her closet, planning to “have” her when she arrived. Karen further testified that when she advised defendant her sister would have been with her, defendant stated, “Well, I’ll have her too.”

Defendant contends first he was prejudiced by the admission of evidence of misconduct by him against the complainant which was not related to the offenses for which he was being tried. He argues the State violated the rule prohibiting introduction of evidence that “the accused is a bad man and thus more likely to have committed the crime,” citing, e.g., McCormick, Evidence sec. 190, at 447-48 (2d ed. 1972); People v. Novotny (1922), 305 Ill. 549, 137 N.E. 394; People v. Copeland (1978), 66 Ill. App. 3d 556, 384 N.E.2d 391; People v. Butler (1975), 31 Ill. App. 3d 78, 334 N.E .2d 448.

Generally, evidence of crimes other than those for which a defendant is being tried is not admissible, but there are well-recognized exceptions to the rule. In People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, the court noted:

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

In this case defendant admitted that the sex acts for which he was charged did, in fact, occur; he asserted, however, they were with the consent of the complainant. She acknowledged she formerly had a consensual sexual relationship with defendant, but testified it had ceased prior to the day of the offenses for which he was charged. Necessarily, the State was required to produce evidence in support of the complainant’s testimony in trial that defendant’s conduct on September 12, 1981, was against her will. This court considered very similar circumstances in People v. Mangiaracina (1981), 98 Ill. App. 3d 606, 424 N.E.2d 860, appeal denied (1981), 85 Ill. 2d 580, where evidence of other offenses against the complainant and persons with whom she was associating was admitted in trial, including a prior rape of her. The court concluded such evidence was relevant to show the principal fact in issue, whether the victim had consented, by evidence showing the extent to which the prior relationship of the parties had deteriorated. (98 Ill. App. 3d 606, 609-10.) So too in the present case, testimony defendant had an altercation with complainant and her friends and broke into complainant’s bedroom on the night before the principal offenses, and later stated he had planned to “have” her; that he was convicted of a battery of her a month earlier in a confrontation in which she had also been raped by him, and that he earlier had sought to have sexual intercourse with her against her will, is relevant to the issue of consent asserted by defendant. As in Mangiaraeina such evidence clearly was prejudicial to defendant’s theory of the case, but was relevant and probative of the issue before the jury. In these circumstances, we agree with the ruling of the trial court that the probative value of the disputed evidence outweighed its prejudicial effect and find it did not abuse its discretion in admitting it. See also People v. Copeland (1978), 66 Ill. App. 3d 556, 558, 384 N.E.2d 391; People v. Lighthart (1978), 62 Ill. App. 3d 720, 723, 379 N.E.2d 403.

We note too that the evidence defendant had raped complainant in the August 1981 battery incident was brought before the jury during his cross-examination of the complainant. He is now estopped to complain of error in its admission. Casson v. Nash (1978), 74 Ill. 2d 164, 172, 384 N.E.2d 365.

Defendant also asserts that his conviction and sentence for unlawful restraint must be vacated as a lesser included offense of deviate sexual assault for which a judgment of conviction and sentence was also entered. People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

The offense of deviate sexual assault is defined as follows:

“Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.” Ill. Rev. Stat. 1981, ch. 38, par. 11 — 3.

The offense of unlawful restraint is defined as follows:

“A person commits the offense of unlawful restraint when he knowingly without legal authority detains another.” Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3.

In People v. Coleman (1980), 83 Ill. App. 3d 429, 434-35, 403 N.E.2d 1266, and People v. McCann (1979), 76 Ill. App. 3d 184, 187, 394 N.E.2d 1055, this court concluded that all of the elements of the offense of unlawful restraint were necessarily included within the offense of rape. (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1.) The State here argues generally that as deviate sexual assault does not require proof the victim was detained, unlawful restraint is not a lesser included offense of deviate sexual assault. We do not agree.

Although deviate sexual assault is a distinct offense from rape (People v. Brown (1976), 41 Ill. App. 3d 641, 650, 354 N.E.2d 602, appeal denied (1976), 64 Ill. 2d 597), the distinction lies only in the nature of the sexual violation involved; each offense, however, inherently involves the element of the unlawful detention of the victim. We conclude that the lesser included offense of unlawful restraint must, therefore, be vacated.

Accordingly, the conviction and sentence for unlawful restraint is vacated and the judgment of the circuit court is otherwise affirmed.

Affirmed as modified.

LINDBERG and UNVERZAGT, JJ., concur.