author: JUSTICE LORENZ

text:
    BELL FUELS, INC., Plaintiff-Appellant, v. LOCKHEED ELECTRONICS COMPANY, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1266
    Opinion filed February 1, 1985.

      Laser, Schostok, Kolman & Frank, of Chicago (Joel A. Stein and Brad Levin, of counsel), for appellant.
    Louis C. Roberts and Larry A. Hoellwarth, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellee Lockheed Electronics Company, Inc.
    Thomas P. Luning and Kevin J. Byrne, both of Schiff, Hardin & Waite, of Chicago, for other appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This is an appeal from the trial court’s dismissal of plaintiff’s verified two-count second amended complaint which sought damages against defendants Lockheed Electronics Company, Inc. (Lockheed), and Don Johns, Inc., caused by the breach of their implied warranty of merchantability on allegedly defective goods that they manufactured and distributed. We affirm, and pertinent to our disposition are the following.

Plaintiff, a distributor of fuel oil to individual and commercial consumers, filed a verified second amended complaint on September 2, 1982, after its prior complaints alleging breaches of various express and implied warranties had been dismissed.

Count I, directed at defendant Lockheed, alleged that metering registers manufactured by Lockheed and purchased by plaintiff from Don Johns, Inc., were defective in their design; that plaintiff had given Don Johns, Inc., due notice of several defects; and that Lockheed knew or should have known of these defects. It further alleged that Lockheed had attempted to disclaim its implied warranty of merchantability in writing through a “warranty.” A copy of this “warranty” was attached to the complaint as an exhibit. Its terms provided as follows:

“WARRANTY CERTIFICATE NO.
Lockheed Electronics Company, Inc. (LEC) warrants the Computing Register delivered hereunder (1) will be free from defects in material and workmanship under normal use and service; and (2) will meet applicable specifications and descriptions at the time of delivery to Buyer. For a period of one (1) year from the date of purchase, LEC will replace or repair, for the original Buyer from an authorized Factory Dealer, free of charge, any part or parts returned to said Dealer within such one (1) year period, which are found upon examination by said Dealer to be non-conforming or defective. All transportation costs must be borne by Buyer. The foregoing shall also apply to any repaired, reworked or replaced product, part or component.
Buyer’s remedies are expressly limited to LEC’s obligation stated above. This warranty extends to said Buyer only. LEC shall in no case be liable to said Buyer or Buyer’s customers for any incidental or consequential damages, or loss of use, or other commercial loss, however occasioned.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS.”

Additionally, it alleged that language was attached to this “warranty” which stated: “This Warranty shall be effective only providing attached card is properly filled out and returned to Lockheed Electronics Company, Inc. at time of purchase”; that plaintiff had not returned the attached card to Lockheed; and that the implied warranty of merchantability was therefore still applicable. Finally, the complaint alleged that Lockheed had breached its implied warranty of merchantability, and plaintiff had been damaged as a result of this breach. Count II realleged and incorporated by reference all allegations made against Lockheed as against Don Johns, Inc.

On September 30, 1982, defendant Lockheed moved to dismiss plaintiff’s second amended complaint on the grounds that the implied warranty of merchantability had been effectively disclaimed by Lockheed; that plaintiff’s complaint failed to allege breach of an implied warranty of merchantability; that plaintiff’s complaint failed to allege any causal relationship between the claimed damages and any defects; and that the complaint failed to allege compliance with certain conditions precedent.

At the hearing on Lockheed’s motion to dismiss the second amended complaint, the court considered Lockheed’s initial argument on the existence/applicability of the disclaimer. In opposition to Lockheed’s motion, plaintiff argued that the disclaimer language included in the “Warranty Certificate” drafted by Lockheed was ambiguous and should be strictly construed against its drafter, Lockheed, as an ineffective disclaimer. Further, plaintiff urged that there was no effective disclaimer of implied warranties because the written “warranty” and its “incorporated” disclaimer were expressly predicated on the return of the card attached to the “Warranty Certificate” and that the condition precedent was never satisfied since plaintiff had never returned the card.

The trial court found that the card attached to the enclosed “Warranty Certificate” was a condition precedent, and that the intent of the parties (seller) was to sell some merchandise at a given price and to afford the purchaser an express warranty within the terms of the agreement with a condition precedent attached to that warranty that the purchaser would have to notify the seller of the date and identity of the buyer. The court found that the disclaimer was effective regardless of notification, and that the disclaimer complied with the terms of the Uniform Commercial Code. It therefore dismissed plaintiffs second amended complaint.

Plaintiff appeals from this dismissal.

Opinion

Section 2—314 of the Uniform Commercial Code creates an implied warranty of merchantability in every contract for the sales of goods where the seller is a merchant regularly engaged in the sale of goods of that kind, unless the warranty is excluded or modified. (Ill. Rev. Stat. 1981, ch. 26, par. 2—314.) This implied warranty, which arises independently and outside of the sales contract by operation of law, embraces at least the undertaking that the goods shall be reasonably suited for the ordinary purpose for which goods of that description are sold. See 1 R. Anderson, Uniform Commercial Code sec. 2— 314:58 (2d ed. 1970).

In the present case, plaintiff’s second amended complaint alleged a breach of the implied warranty of merchantability as against both defendants. However, manufacturer Lockheed’s motion to dismiss claimed that it had effectively disclaimed the implied warranty of merchantability arising from the sale of its equipment by delivering a “Warranty Certificate” to plaintiff. The issue presented here is whether the trial court properly granted defendant Lockheed’s motion to dismiss based upon an effective disclaimer of the implied warranty of merchantability.

Section 2—619(a)(9) of the Illinois Code of Civil Procedure provides for involuntary dismissal based on “other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1981, ch. 110, par. 2—619(a)(9).) On its face, section 2—619(a)(9) appears to be all-encompassing, but it has limits. A motion to dismiss under 2—619(a)(9) admits all well-pleaded facts; it does not admit conclusions of law, nor does it admit conclusions of fact unsupported by allegations of specific fact upon which such conclusions rest. (See Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 401 N.E.2d 1235.) For this reason, the alleged “affirmative matter” must be something more than evidence offered to refute the complaint, because such well-pleaded facts, together with all reasonable inferences, must be taken as true; the alleged affirmative matter must negate the cause of action completely or refute a crucial conclusion of law or conclusions of material facts contained in or inferred from the complaint. Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 709-10, 425 N.E.2d 1174.

With these principles in mind, we have reviewed plaintiff’s contentions on appeal, and we first consider plaintiff’s claims that the disclaimer is conditional and ambiguous, rendering it ineffective.

Plaintiff contends that the “Warranty Certificate” is made conditional in its entirety by the language which conditions the warranty upon return of the card. Plaintiff argues that capitalization of “Warranty” in the conditional clause indicates the nominative case, referring to the “Warranty Certificate,” and not referring to the descriptive term, “warranty.” According to plaintiff, because the card was never returned, neither the express warranties, nor the disclaimer of implied warranties was effective. Alternatively, plaintiff argues that the language and structure of the “Warranty Certificate” are at best ambiguous, and must be construed against defendant Lockheed, the drafter of the condition and disclaimer.

Defendants respond that the plain meaning of the conditioning language, “This Warranty shall be effective only providing attached card is properly filled out and returned to Lockheed Electronics Company, Inc. at time of purchase,” is to condition only the effectiveness of the express warranty (descriptive) contained in the “Warranty Certificate” (nominative), and not the disclaimer. Further, defendants argue that if the effectiveness of all of the terms set forth in the “Warranty Certificate” had been conditioned upon the return of the attached card, then the language of the sentence would have been “[t]his Warranty Certificate shall be effective only ***.” Finally, they posit that the provisions requiring the return of the attached card were intended only to establish a record of the purchase date and the identity of the original purchaser, for purposes of honoring the terms of the one-year express warranty.

We agree with the trial court’s interpretation that the disclaimer was “independent of the existence of [the] condition precedent.” Section 2—316(1) of the Uniform Commercial Code provides that “[w]ords or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 26, par. 2—316(1).) This section is designed to “protect a buyer from unexpected and unbar-gained language of disclaimer by denying effect to such language when inconsistent with language of express warranty and permitting the exclusion of implied warranties only by conspicuous language or other circumstances which protect the buyer from surprise.” Ill. Ann. Stat., ch. 26, par. 2—316, Uniform Commercial Code Comment 1, at 254-55 (Smith-Hurd 1963).

We reject plaintiff’s contention that the language contained in the conditional acceptance clause also refers to the disclaimer language. We perceive “[t]his Warranty shall be effective” to be clear and unambiguous, referring only to an express warranty provided by Lockheed, and not to the disclaimer of implied warranties also found on the “Warranty Certificate.”

Regarding the alternative contention by plaintiff that the language and structure of the “Warranty Certificate” were at best ambiguous, we note initially that the existence of an ambiguity is a question of law for the court. (Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 575, 414 N.E.2d 1152.) “A contract is ambiguous when the language used is reasonably susceptible to more than one meaning.” (White v. White (1978), 62 Ill. App. 3d 375, 379, 378 N.E.2d 1255.) A contract is not rendered ambiguous simply because the parties do not agree on its meaning. (Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 839, 368 N.E.2d 1099.) “When contract terms are clear and unambiguous, they must be given their ordinary and natural meaning, and no parol or extrinsic evidence may be considered to vary the meaning of the terms.” Susmano v. Associated Internists (1981), 97 Ill. App. 3d 215, 219, 422 N.E.2d 879.

Applying these principles to the case at bar, our review of the plain meaning of the terms of the “Warranty Certificate” reveals a clear and unambiguous disclaimer of implied warranties included within the “Warranty Certificate.”

We now turn to consider the effectiveness of the disclaimer of the implied warranty of merchantability. Plaintiff contends that Lockheed’s disclaimer failed to meet the strict requirements for disclaimer of the implied warranty of merchantability. We disagree.

Section 2—316 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—316) permits negation of warranties, provided such limitations comply with other sections of the Act. Subsection 2 of the aforementioned statute provides:

“*** to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ” Ill. Rev. Stat. 1981, ch. 26, par. 2-316(2).

It is abundantly clear that the disclaimer in question complied with the requirements of section 2—316(2) of the Uniform Commercial Code. There is no question that the language of the disclaimer contains the word “merchantability” and thus would comply with one portion of the requirements of section 2—316 for the disclaimer of the implied warranty of merchantability. We next consider whether the written disclaimer was “conspicuous.”

Section 1—201(10) of the Uniform Commercial Code provides as follows:

“A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NON-NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. *** Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” Ill. Rev. Stat. 1981, ch. 26, par. 1—201(10).

Official Code Commentary suggests that courts should test conspicuousness by asking if “attention can reasonably be expected to be called to [the term or clause].” (Ill. Ann. Stat., ch. 26, par. 1—201(10), Uniform Commercial Code Comment 10, at 48 (Smith-Hurd 1963).) Specifically, a conspicuous disclaimer ought to be set apart from the rest of the contract by larger contrasting type with attention-catching colors such as red or dark shades of black, and prominent placement. See Annot., 73 A.L.R.3d 248 (1976).

In the case at bar, we are confronted with a disclaimer which is adequately set apart from the express warranty by its own paragraph, and is in large-type capital letters. Given the configuration of the disclaimer, together with the boldface heading of the “Warranty Certificate” upon which the disclaimer is found, we believe that the trial court was justified in concluding that the disclaimer was written and positioned so that a reasonable business entity such as plaintiff could reasonably be expected to have noticed this disclaimer. (See FMC Finance Corp. v. Murphree (5th Cir. 1980), 632 F.2d 413, 419 (applying Illinois law).) The trial court properly found that the disclaimer in question effectively disclaimed any implied warranty of merchantability.

Finally, plaintiff argues that the disclaimer was ineffective because it was delivered along with the equipment, after the bargain had been struck. It is true that a disclaimer of implied warranties which is delivered with the goods is insufficient (Midland Supply Co. v. Ehret Plumbing & Heating Co. (1982), 108 Ill. App. 3d 1120, 1125, 440 N.E.2d 153; Gideon Service Division v. Dunham-Bush, Inc. (1980), 80 Ill. App. 3d 633, 637, 400 N.E.2d 89), but plaintiff did not raise timeliness before the court either by way of complaint, or in response to defendant’s motion to dismiss. It is a well-established principle of appellate review that an issue not presented to or considered by the trial court cannot be raised for the first time on re-view. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.) Plaintiff should have presented a proposed amended complaint alleging late delivery of the disclaimer in order to preserve the issue for review (see Urfer v. Country Mutual Insurance Co. (1978), 60 Ill. App. 3d 469, 474, 376 N.E.2d 1073; People ex rel. Scott v. Cardet International, Inc. (1974), 24 Ill. App. 3d 740, 748, 321 N.E.2d 386), and we will not address an issue presented for the first time to this court on appeal.

In further review, we note that both the defendants and the trial court improperly considered dismissal on grounds of an affirmative defense before determining the legal sufficiency of plaintiff’s complaint. In Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605, the supreme court held that the joinder of “an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated” confuses both the parties and the court. In the instant case, the defendant should have first challenged the legal sufficiency of the complaint and when, and only when, a sufficient legal cause of action had been stated should the court have entertained the motion to dismiss on an “affirmative matter” (disclaimer) which was a defense which negated the cause of action completely. However, the joinder of such motions is not grounds for reversal per se. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605, where the court did not reverse for joinder of a motion for summary judgment and a motion to dismiss under section 2—615 (Ill. Rev. Stat. 1981, ch. 110, par. 2—615, formerly section 45 of the Civil Practice Act), but considered the issues.) Even where error is shown, a case will not be reversed absent a showing of prejudice. Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 642, 450 N.E.2d 1360.

In sum, defendants’ disclaimer was an unambiguous affirmative matter, which was a defense that negated plaintiff’s cause of action completely and was proper grounds for dismissal of plaintiff’s second amended complaint under section 2—619(aX9). See Bowers Manufacturing Co. v. Chicago Machine Tool Co. (1983), 117 Ill. App. 3d 226, 453 N.E.2d 61.

The order of the trial court dismissing the complaint with prejudice is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BLAKE, Defendant-Appellant.
    Second District
    No. 83—678
    Opinion filed February 11, 1985.

      Robert J. McDonnell, of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Marlene V. Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court;

Defendant, Richard Blake, appeals from his convictions following a jury trial in the circuit court of Du Page County for the offenses of aggravated kidnaping (Ill. Rev. Stat. 1981, ch. 38, par. 10—2), deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11—3), and intimidation (Ill. Rev. Stat. 1981, ch. 38, par. 12—6). Defendant contends on appeal that the State failed to prove him guilty of the offenses beyond a reasonable doubt, that defendant’s conviction for intimidation must be vacated as the lesser included offense of deviate sexual assault and the cause remanded for resentencing, and that the trial court erred in sustaining the State’s objection to a portion of his closing argument. We affirm.

Although the testimony of defendant and of the 19-year-old victim differ in many important respects, we briefly summarize the facts concerning the incident which resulted in defendant’s conviction. On the morning of September 4, 1982, the victim arrived at the Bloomingshire Restaurant, where she encountered defendant in the restaurant parking lot. Either by force or consent, the victim got out of her car and entered defendant’s van. From the parking lot, defendant drove the van several miles, turned off the highway, and parked in a cornfield. There, according to defendant, the victim agreed to perform an act of fellatio for $40. Because he was unable to achieve an orgasm, defendant testified, they left the back of the van and engaged in intercourse on the nearby grass. Following the intercourse, defendant testified he offered defendant only $20 because he had again not achieved an orgasm. The victim angrily refused the reduced payment and ran away from the van through the cornfield. In contrast, the victim stated she was driven to the cornfield at knife point where she was compelled to perform an act of fellatio. Defendant achieved an orgasm, ordered her outside of the van, and drove away.

After a jury trial, defendant was convicted on all three offenses. On June 20, 1983, defendant filed a motion for a new trial which the trial court denied on July 18, 1983. On July 25, 1983, the trial court sentenced defendant to concurrent terms of eight years, eight years and two years respectively for the deviate sexual assault, aggravated kidnaping and intimidation offenses. Defendant filed his notice of appeal that same day.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of any of the offenses. In order to consider defendant’s argument, the necessary elements of each offense must be enumerated. A person commits intimidation when with intent to cause another to perform an act, he communicates to that person a threat to inflict physical harm on the person threatened. (Ill. Rev. Stat. 1981, ch. 38, par. 12—6(a)(1).) The offense of kidnaping is committed when a person knowingly either secretly confines another against his will or by force or threat of imminent force carries a person from one place to another with intent secretly to confine him against his will. (Ill. Rev. Stat. 1981, ch. 38, pars. 10—l(a)(1), (2).) Aggravated kidnaping involves the commission of another felony during a kidnaping. (Ill. Rev. Stat. 1981, ch. 38, par. 10—2(a)(3).) To prove a deviate sexual assault, the State must establish that defendant, by force or threat of force, compelled another to perform an act of deviate sexual conduct. Ill. Rev. Stat. 1981, ch. 38, par. 11—3.

The evidence presented was sufficient to support the jury’s verdict on each of these offenses beyond a reasonable doubt. Count III of the State’s indictment asserted defendant committed the offense of intimidation “in that said defendant, with the intent to cause [the victim] to perform an act of Deviate Sexual Conduct, communicated to [the victim] a threat to inflict, without lawful authority, physical harm upon [the victim] ***.” The testimony of the victim was that defendant pointed a knife at her throat while she was in her car and stated, “I should kill you” and “I should cut your throat.” After pushing her toward and ordering her into the van, defendant, according to the victim’s testimony, followed her into the back of the van, whereupon he stroked her throat and stated “Such a pretty throat. I should cut it.” Later, while driving the van, defendant told the victim (age 19) that she would never live to see the age of 20. Throughout the incident in the cornfield during which the victim performed a deviate sexual act upon defendant, the victim testified, defendant pointed a knife at her and even touched the knife blade to her skin. These facts, if accepted as true by the jury, established beyond a reasonable doubt that defendant committed the offense of intimidation.

The victim’s testimony also supports defendant’s conviction for the aggravated kidnaping offense. The victim testified that she was forced at knife point to leave her car and enter defendant’s van. Additionally, the victim stated she was threatened at knife point throughout the ride in the van. Since confinement in an automobile satisfies the statutory requirement of secret confinement (People v. Harris (1979), 68 Ill. App. 3d 12, 14, 385 N.E.2d 789, 791), then defendant was proved guilty of kidnaping beyond a reasonable doubt if the jury believed the victim’s testimony that she was confined against her will.

Defendant’s conviction for aggravated kidnaping is dependent upon whether the evidence established he committed another felony— deviate sexual assault—during the kidnaping. Both defendant and the victim agree that the victim performed an act of fellatio upon defendant. The dispute centers around whether defendant by force compelled the victim to perform the act. The victim testified that defendant ordered her to perform oral sex on him and that during the act he told her she had better know what she was doing or she would die. While the victim performed the fellatio act, defendant stroked her back, neck and head with the blade of the knife and even grabbed her nipple “pointing] the blade against it with pressure.” These facts, if believed by the trier of fact, established a deviate sexual assault beyond a reasonable doubt.

Based upon this review of the record, evidence was introduced which supported conviction on each of the three offenses. The central issue, therefore, is one of credibility, for defendant and the victim— the only witnesses to the events inside the van—presented conflicting testimony on the events precipitating this prosecution. The credibility of the witnesses and the weight to be accorded their testimony are matters for the jury’s determination. (People v. Cornes (1980), 80 Ill. App. 3d 166, 399 N.E.2d 1346.) Even the testimony of the complaining witness alone contradicting the testimony of the accused, if positive and credible, is sufficient to sustain a conviction for deviate sexual assault. (People v. Hamil (1974), 20 Ill. App. 3d 901, 314 N.E.2d 251.) When the conviction is based upon the testimony of the victim, it must be clear and convincing or otherwise corroborated by other evidence. People v. Cornes (1980), 80 Ill. App. 3d 166, 172, 399 N.E.2d 1346, 1350.

With these principles in mind, we review the salient testimony of both the victim and defendant and the other evidence to determine if a reasonable doubt exists concerning defendant’s conviction. The vietim testified that she arrived at the parking lot of the Bloomingshire Restaurant at 11:28 a.m. on Saturday, September 4, 1982, for the purpose of meeting a friend, Joel Maschinski, to repay a $40 debt she owed him for concert tickets. Maschinski’s testimony confirmed the purpose of the meeting and established that he was 10 to 15 minutes late, arriving at approximately 11:45 a.m. The victim further testified that she waited in her car with the radio playing for Maschinski to arrive. In contrast, defendant testified he met the victim across the street in a Dunkin Donuts shop, where she propositioned him. He declined, but agreed to drive her to her car parked across the street in the restaurant parking lot. The jury could have found it unlikely that the victim would ask him for a ride across the street, especially after he had just declined her offer for sex.

The victim further testified defendant arrived in his maroon van in the restaurant parking lot, which was deserted except for her car, got out and tried to open the restaurant door, and then asked the victim if she was employed by the restaurant or knew the owner. She said she didn’t, he again tried the door, she turned to look for Maschinski and suddenly defendant through the car window pointed a knife at her. After threatening to cut her throat, he forced her to enter the van.

Defendant’s version was that after dropping the victim off in the parking lot, he tried the restaurant door and then came back to the car and asked the victim if her offer was still good. She said it was, and defendant suggested they use his van. Once there, they kissed and caressed, but defendant said he was nervous because of the people nearby. Then, the victim heard a car approach, looked out the back window, identified the driver as Maschinski and ordered defendant to drive away so that Maschinski wouldn’t discover them and inform her boyfriend.

The jury could have found several problems exist with defendant’s version. First, since the victim had agreed to meet Maschinski at the restaurant during the time she and defendant were in the van, the victim would not likely risk being caught by agreeing to perform the act in the parking lot. Furthermore, both Maschinski and a police officer who- later arrived at the restaurant found the victim’s car with the keys in the ignition, with the ignition in the auxiliary position, and with the radio playing. While defendant testified the victim left the keys in the car because she stated “this won’t take long,” the jury could have concluded the victim would not likely leave the car in this condition if she were concerned about being discovered, because she knew Maschinski was due to arrive at any moment. Finally, defendant’s explanation for his inability to become aroused in the van—that there were a lot of people around—conflicts with the victim’s statement that the restaurant parking lot was empty. Despite his testimony that he was nervous, defendant was the person who suggested that they enter the van to have sex. Also, defendant testified the victim observed Maschinski out of the back window of the van, while the victim testified the back window of the van was too dirty to afford a view of the outside.

Both defendant and the victim testified that they then left the parking lot in defendant’s van. Defendant argues on appeal that the victim’s testimony is not credible because she had several opportunities but never attempted to escape while the van was stopped at traffic lights. However, as emphasized by the State, the victim testified salt bags stacked more than 2V2 feet high blocked the rear-door exit and that she did not see the side door of the van until the van was parked in the cornfield. Throughout this period, the victim testified she was at least unclothed from above her waist and she feared for her life. Under these circumstances, the jury could have concluded the victim’s failure to attempt to escape was understandable and reasonable and did not undermine her credibility.

Another fact damaging to defendant’s recitation was the introduction into evidence by the State of the victim’s severed bra. The victim testified that defendant cut her bra from her chest -with his knife while they were in the van. Michael Podlecki, a forensic scientist with the Illinois Department of Law Enforcement, confirmed during his testimony that the bra was cut, not torn. Defendant testified that the bra was not severed when he left the victim in the cornfield. Podleeki’s testimony affords credibility to the victim’s version of the incident; otherwise, the victim would have had to have cut her own bra while running through the cornfield. The State’s exhibits 12A, B and C—photographs of the victim’s knees and legs taken at the hospital—also support the victim’s testimony. The photographs showed the victim’s knees badly swollen and red, which she attributed to kneeling on the floor of the van. The jury could have concluded that were the sexual conduct consensual, the victim would not have endured such a position, but instead would have suggested an alternative stance.

The victim’s actions observed by others following the incident also lend credence to her version of the attack. Ronald Scarbro, an employee of J&L Auto Body, observed the victim crying and very upset immediately after the incident. He testified he telephoned her boyfriend for the victim because she was unable to dial the phone herself. Both Jeffrey A. Fritz, a Bloomingdale police officer, and Maschinski observed the victim at the body shop and testified she was sobbing and visibly upset. Fritz stated the victim told him she had been sexually attacked. To believe defendant’s version, the jury would have had to have concluded that the victim concocted this hysteria to support her sexual assault charge. Furthermore, the only explanation offered by defendant for the victim’s “fabrication” is revenge for the fact that defendant offered the victim only $20 instead of the agreed-upon $40 for her services that day. The jury could have concluded that the victim would not likely feign this attack and then continue this deception throughout interviews with police officers, a hospital examination and an arduous trial process merely because she was not paid enough money.

While the victim’s credibility is suggested by her trial testimony, defendant admitted that he lied to a police officer at his home several days after the incident, telling the officer that he had not stopped at the restaurant on the day in question. While defendant explained that he lied because his family was at home while he was being interviewed by the police officer, his untruthful statements to the officer do indicate a propensity to lie and undermine his own credibility. An additional fact discrediting defendant’s version is his inconsistent testimony on whether or not he achieved an orgasm during intercourse with the victim. At one point during his testimony, he explained he only offered the victim $20 because he had not achieved an orgasm. However, he also testified he was unsure whether he achieved an orgasm. The jury could have believed that defendant’s inconsistent testimony was offered to explain the presence of sperm later found in the victim’s vagina.

The only factor arguably supporting defendant’s version is the testimony that the physical examination of the victim at the hospital revealed no residual semen in the victim’s mouth. Both the victim and defendant testified she performed oral sex on defendant, but the victim testified he ejaculated into her mouth and she swallowed the discharge, while defendant testified he was unable to ejaculate, but later might have ejaculated into her vagina during intercourse with her. The hospital test did register positive for sperm in the victim’s vagina. However, the State, through the victim, established she had engaged in intercourse with her boyfriend at 10 a.m. on the day of the incident. The State further established through Podlecki that the semen might not test positive in her mouth because she swallowed the semen and spit while running through the cornfield, because semen breaks down over time, and because the victim was not tested until more than one hour after the incident. Thus, the absence of semen in the victim’s mouth does not create a reasonable doubt about defendant’s guilt for any of the three offenses for which defendant was convicted.

Defendant next contends his conviction for the offense of intimidation must be vacated and the cause remanded for resentencing because his convictions for intimidation and deviate sexual assault were based upon the same physical act and because intimidation is the lesser included offense of deviate sexual assault. In People v. King (1977), 66 Ill. 2d 551, 566, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, the supreme court held that where more than one offense stems 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 maintained. The King rule is conjunctive. Section 2—9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 2—9) provides:

“ ‘Included offense’ means 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, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.”

The greater offense must include every element of the lesser offense plus one or more elements; the lesser offense does not have any element that is not included in the greater one. (People v. Garza (1984), 125 Ill. App. 3d 182, 188, 465 N.E.2d 595, 600.) A determination whether one offense is the lesser included of the other necessarily requires an examination of the elements of each offense. A person commits intimidation when “with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat *** without lawful authority *** [to] [i]nflict physical harm on the person threatened or any other person or on property ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 12—6(a)(1).) The offense of deviate sexual assault is committed when “[a]ny person of the age of 14 years and upwards ***, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct ***.” Ill. Rev. Stat. 1981, ch. 38, par. 11—3(a).

Comparison of the elements of the two offenses reveals that intimidation is the lesser included offense of deviate sexual assault. Both offenses require a threat of force. Although intimidation requires that the threat be communicated, this requirement is implicit in the offense of deviate sexual assault. In an analogous context, the court in People v. Smalley (1976), 43 Ill. App. 3d 600, 602, 357 N.E.2d 93, 95, ruled that although the requirement that the threat be communicated was not specified in the offense of rape, “in the rape context the communication of a threat of force is inherent in the use of force.” The Smalley court held that intimidation was the lesser included offense of rape. Since the only distinction between rape and deviate sexual assault lies in the nature of the sexual violations involved (People v. Weis (1983), 120 Ill. App. 3d 597, 458 N.E.2d 157), Smalley is persuasive support for the conclusion that intimidation is the lesser included offense of deviate sexual assault.

Intimidation also requires that the offender intend to cause another to perform an act; deviate sexual assault requires that the offender compel another to perform an act of deviate sexual conduct. However, inherent in the deviate sexual assault requirement that one compel another to commit an act is the intent to cause that person to perform the act. Therefore, the elements of the two offenses are identical for purposes of the lesser included offense analysis. The only other term which is contained in the intimidation offense but not in the deviate sexual assault offense is “without lawful authority.” However, this language is not an element of the offense. (See People v. Hubble (1980), 81 Ill. App. 3d 560, 564, 401 N.E.2d 1282, 1285.) In addition, in People v. Weis (1983), 120 Ill. App. 3d 597, 458 N.E.2d 157, this court concluded unlawful restraint was the lesser included offense of deviate sexual assault despite the language in the unlawful restraint offense that it be committed “without legal authority.” Thus, “without lawful authority” is not an additional element of the offense of intimidation, and that language does not preclude the conclusion that intimidation is the lesser included offense of deviate sexual assault. Because defendant was convicted both of intimidation—the lesser included offense—and of deviate sexual assault, the intimidation conviction must be vacated.

In cursory fashion, defendant requests this court to remand this cause for resentencing because the trial judge may have been influenced by the intimidation conviction in sentencing him on the other offenses. Normally, the appellate court is required to examine the transcripts of the sentencing hearing when one conviction is vacated to determine if the trial court was influenced by the vacated conviction in imposing the other sentence. (See People v. Sanford (1983), 119 Ill. App. 3d 160, 456 N.E.2d 333.) However, here defendant has not included in the appellate record the report of proceedings of the sentencing hearing. The appellant in a criminal case is responsible for providing a complete appellate record for review. (People v. Hefley (1982), 109 Ill. App. 3d 74, 440 N.E.2d 173.) A reviewing court will indulge in every reasonable presumption favorable to the conclusion reached by the trial court, and any doubt arising from the incomplete record will be resolved against the appellant. (People v. Wilson (1981), 92 Ill. App. 3d 370, 415 N.E.2d 1315.) An appellant who challenges his sentence but who fails to provide the relevant reports of proceedings is not entitled to relief. (See People v. Holman (1976), 43 Ill. App. 3d 56, 356 N.E.2d 1115; cf. Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 661, 435 N.E.2d 852, 859-60.) Since defendant here has failed to provide this court with the report of proceedings of the sentencing hearing which is necessary to review the trial court’s sentencing decision, we conclude that the sentences imposed were proper and that the trial court did not consider the intimidation conviction in imposing these sentences on the aggravated kidnaping and deviate sexual assault convictions.

Defendant’s final contention is that the trial judge erred in sustaining the State’s objection to one statement in defense counsel’s closing argument. The relevant portion of the record is as follows:

“[Defense Counsel McDonnell]: Now, we, as attorneys have certain rights, duties and obligations. The State has a duty.
The State has to prove its case beyond a reasonable doubt and at various times during the course of a trial may have an opportunity to bring in additional evidence, to-wit: After I rested, they had a right and indeed they did bring in what they call or we call rebuttal testimony.
Once the defendant takes the stand his character is in issue and if this man had anything against his character, the State had a duty to tell you 12 people that he had indeed been in trouble in his lifetime.
MR. KARMGARD: Objection.
THE COURT: Sustained.
MR. KARMGARD: I would ask that the jury be instructed to disregard that.
THE COURT: So ordered; disregard it.
MR. MCDONNELL: Well, there was no such evidence.
MR. KARMGARD: Objection.
THE COURT: Sustained.
MR. KARMGARD: I would ask that counsel be instructed not to go into this area and the jury disregard it.
THE COURT: Counsel, the objection has been sustained.” (Emphasis added.)

Relying solely on this language, defendant contends the trial court prevented him from fairly arguing his case to the jury. However, as the preceding record demonstrates, defendant never challenged the State’s objection or offered to the court a reason for reversing its ruling on the State’s objection. More importantly, defendant’s post-trial motion never assigned as error this specific ruling by the trial court. Although defendant filed a post-trial motion, his only arguable reference to this point of error alleged on appeal is the following statement:

“7. That the Court improperly allowed the prosecutor to continuously interrupt Defense counsel in closing arguments to the jury by holding numerous sidebars on objections by the State without foundation as to said objections.”

Our supreme court in People v. Jackson (1981), 84 Ill. 2d 350, 358-59, explained the rules regarding the necessity for post-trial motions in jury trials:

“[I]t is well settled that, when a defendant fails to make a timely objection at trial or in the post-trial motion, irregularities in the closing argument complained of on review are ordinarily deemed waived. [Citations.] Timely and specific objection at trial affords the court an opportunity to prevent most errors by sustaining the objection or instructing the jury to disregard the answer or remark. [Citations.] And specific references in post-trial motions to the reasons why a trial judge’s actions or rulings were wrong enables [sic] him to reconsider their propriety in a less pressured environment. If an egregious error has actually occurred, the judge can order a new trial, thus avoiding the delay and expense of appellate review.”

To be effective, a written post-trial motion must set forth with adequate specificity the error supporting a defendant’s request for a new trial. (People v. Lawson (1980), 86 Ill. App. 3d 376, 397, 407 N.E.2d 899, 916.) In the case at bar, defendant’s post-trial motion is wholly insufficient to have preserved his claim of error regarding the trial court’s ruling on the State’s objection to defendant’s closing argument, and thus, he has waived this argument. Furthermore, the trial court’s ruling does not amount to plain error. See 87 Ill. 2d R. 615.

Defendant’s convictions for the offenses of deviate sexual assault and aggravated kidnaping are affirmed, and defendant’s conviction and sentence for the offense of intimidation are vacated.

Affirmed in part, vacated in part.

NASH, P.J., and UNVERZAGT, J., concur.


author: JUSTICE MILLS

text:
      In re PETITION OF COMMISSIONERS OF SNY ISLAND LEVEE DRAINAGE DISTRICT (Commissioners of Sny Island Levee Drainage District in the Counties of Pike, Adams and Calhoun, Petitioners-Appellees, v. Larry Utterback et al., Objectors-Appellants; Hugh H. McNary et al., Intervenors).
    Fourth District
    No. 4—84—0221
    Opinion filed February 5, 1985.
    Rehearing denied March 11, 1985.
    George J. Lewis, of Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, for appellants.
    Matthew A. Hutmacher, of Hutmacher, Rapp & Ortbal, P.C., of Quincy, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

A drainage matter.

A proposed modification to Pigeon Creek Reservoir—objected to.

The trial judge found the modification “advisable.”

We affirm.

BACKGROUND

The Sny Island Levee Drainage District of the counties of Pike, Adams, and Calhoun contains 112,397 acres. The District extends from the north in Adams County to the south in Calhoun County and runs along the Mississippi River. It diverts five major creeks to the Mississippi River through a series of levees and pumping stations which involve eight pumps with a total pumping capacity of 1 million gallons per minute. The District has 14 separate reservoirs, only one of which—the Pigeon Creek Reservoir—is involved in this appeal.

Pump Station No. 1 serves 38,000 acres within the District and 80,000 acres of total watershed. Of the 38,000 acres within the District served by Pump Station No. 1, only 18,000 are affected by the Pigeon Creek Reservoir. At Pump Station No. 1, there are two pumps, each with a 450 cubic feet per second (cfs) capacity. The original design plan called for 1,100 cfs capacity, but modifications replaced the need for 200 cfs. The United States Army Corps of Engineers designed the Pigeon Creek Reservoir to last 25 years, after which rehabilitation of the levees was contemplated. Such rehabilitation was reflected in what is known as Design Plan No. 3, which was filed with the county clerk after it was proposed by the Army Corps of Engineers and incorporated by the District. The Corps designed the reservoir to have water-holding capacity of 4,800 acre/feet, a discharge capacity of 450 cfs, and capacity to receive 2,100 acre/feet of silt. The silt was to be deposited over the 25-year design life of the reservoir. And if silt was deposited as estimated, the levees would have to be raised or rehabilitated after the 25-year design life. The levee surrounding Pigeon Creek Reservoir was designed to be 475.3 feet above mean sea level (elevation 475.3), and the emergency spillway elevation was to have been 472.3 feet elevation. The spillway was placed where it was felt minimum damage would occur if the reservoir was ever overtopped.

The reservoir was constructed in 1962 for the primary purpose of storing water, controlling flooding, and preventing silt from going into the Sny—which is a drainage ditch that runs along the north-south route of the entire District. The reservoir was designed to hold water as it ran off hillsides in the eastern portion of the District. At the timé of its design, the Corps of Engineers predicted that only once in 10 years would ponding south of Pigeon Creek Reservoir reach a maximum elevation of 453. Ponding over this level causes flooding of lands around Pump Station No. 1. Evidence submitted at trial showed that there were 10 interior floods above elevation 453 between 1966 and 1981.

In response to the problem of interior flooding, the District undertook a study of the entire system in an effort to determine how to alleviate the problem. The study was undertaken in 1975 and resulted in the listing of several reasons for the interior flooding as well as some suggested cures. The reasons for the flooding included an increased percentage of runoff from rains, increased seepage (water which flows through the ground under a levee) from the Mississippi River, and increased static head (the pressure exerted by a larger volume of water which is held next to a smaller volume) from the Mississippi River which reduces pumping capacity. The suggested cures included increasing the pumping capacity of Pump Station No. 1, which would have cost each landowner approximately $90 per acre, plus other suggested modifications at the pump station, including flaring the pipes. The 1975 study made no recommendation concerning restricting the outlet from Pigeon Creek Reservoir.

In a supplementary report prepared in 1982, the District’s engineer recommended, among other things, modification of Pigeon Creek Reservoir, as well as modification of other settling basins in the District, in an effort to reduce the onslaught of water which occurred immediately after a heavy rainfall. As a result of the subsequent study, a modification was proposed which is the subject of this appeal.

The modification proposed was that a wall would be constructed around the current mechanical outlet. The wall would be built to an elevation of 465 and in the wall would be installed a single 54-inch outlet. The modification would result in a single exit through which the water would flow, rather than the two 54-inch outlets which now exist. If the water ever reached an elevation of 465, the additional stored waters would go over the top of the new wall into what would then be a drop box and would then be discharged through both 54-inch outlets. It was admitted at trial that the modification would extend the time to empty the reservoir from 9.67 days (the present emptying rate) to 18.48 days.

Upon filing the petition which would authorize the suggested modification, the drainage district was met with petitions of the objectors who are the appellants in this appeal. The objectors argued variously that: the modification was not advisable, the modification was precluded by language in deeds which were held by persons who had purchased land in the reservoir, and the modification could not be undertaken until the commissioners obtained flowage and seepage easements from landowners whose property abutted the levees of the reservoir.

Hearings on the petition and the objections took place over the next year and eventually resulted in the court—at bench— finding that while the modification was not necessary, it was advisable. While noting that there was a possibility of increased seepage, the court also found that the District need not obtain easements or condemnation of the surrounding lands prior to constructing the proposed modification. The court finally found that the proposed modification of the outlet structure was included within the rights of “operation, maintenance, and repair” which was reserved by the District when it sold the land lying within the basin at public auction. Based on these findings, the trial court authorized the proposed modification.

This appeal followed and appellants have again raised the three aforementioned objections which question the sufficiency of the evidence to support the finding of the advisability of constructing the wall, as well as the legal basis of the court’s decisions pertaining to the deeds and the absence of necessity to obtain easements.

We affirm.

I. The Wall

The appellants, without citation to authority, argue that various facts adduced during this trial show that it was not advisable to modify the Pigeon Creek Reservoir’s outlet structure in the suggested manner because there was an insufficient showing that the suggested modification would satisfactorily accomplish the sought-after results. Appellants also set forth a laundry list of facts which they feel somehow militate against the modification, but the specific manner is unspecified.

Appellees respond, again without citation to authority, to appellants’ arguments by pulling out portions of their side’s evidence which they urge countered the testimonial factors on which the appellants rely. The only legal argument made by appellees which goes to the issue in this portion of the appeal involves the standard of review called for when a court is asked to set aside the decision of a trial court in a drainage case.

Appellees’ argument is that reviewing courts will not disturb the findings of a lower court unless such findings are contrary to the manifest weight of the evidence. (Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 197 N.E. 578.) While this is the general rule that obtains in matters of civil review, our own research of drainage cases reveals that the rule maintains with special force in this area of the law. As a matter of fact, we could find no case wherein a lower court’s findings of fact were reversed.

The only instance of a lower court’s order being tampered with at all was our decision in In re Petition to Levy Assessments (1974), 19 Ill. App. 3d 125, 310 N.E.2d 454. In that case, the trial court had issued an order which stated that the drainage district, in consummating a plan to clear growth from the sides of a drainage ditch, was to follow a detailed plan, but that in following the plan, the district was to retain all trees which did not thwart the overall purposes of adequate and efficient draining. The plan which was eventually filed called for the removal or eradication of all the growth along the ditch which included all the trees. That this was the gist of the plan was corroborated by testimony of the district’s engineer. We felt that the order was self-contradictory and therefore partially vacated the order and remanded the cause in order to allow the trial court to state more specifically what was to be done and how it was to be accomplished. Although the propriety of the court’s original determination of the advisability of the plan was not attacked on appeal, we did allude to the plan in a manner from which the standard of review in these types of cases may be inferred. We noted that in drainage cases a trial court must first determine whether or not it is advisable to engage in the proposed work. We stated that “[i]n so doing, the court must balance certain interest to determine whether the cost to the land and other property in the district will exceed the benefits.” (19 Ill. App. 3d 125, 130, 310 N.E.2d 454, 459.) We further noted that the record of the proceedings established that the court had engaged in the balancing process. This in and of itself was enough to support the eventual order, as we were unwilling to attempt to rebalance the factors sua sponte but presumed the result of the trial court to be correct.

The posture that we took in In re Petition to Levy Assessments is in accordance with the posture generally taken by courts of review when confronted with claims that a trial court reached an erroneous decision concerning the advisability of actions suggested by commissioners of a drainage district. This is the case even where, as here, the evidence is conflicting. In Union Drainage District v. Hamilton (1945), 390 Ill. 487, 61 N.E.2d 343, the court was asked to reverse a jury verdict which found that the main tile between two pump stations in a drainage district should be repaired at a cost of $8,984.01. Both parties to the case had put on evidence at the trial level. One of the affected landowners testified that his lands were already adequately drained. He testified that none of his crops had ever been destroyed by water although some water occasionally stood on a small portion of his property. Three other witnesses who lived on or near the land testified similarly: that the land would in no way be benefited by the suggested improvements although some water occasionally stood on small portions of their property.

The evidence put on by the district in Union Drainage consisted primarily of the testimony of the district engineer and two of the drainage commissioners. Each testified to having seen water on the objector’s land and estimated the cash benefits of the suggested improvements to be from $5 to $15 per acre. Besides hearing the testimony of the involved parties, the jury viewed the land in question. (It was required to do so under section 17b of the levee act (Ill. Rev. Stat. 1943, ch. 42, par. 20).) While an on-site view of the land is no longer required, Judge Pezman in the case before us went to the reservoir and took testimony while making an on-site inspection just as did the jury in the Union Drainage case.

In addressing the appellants’ argument in Union Drainage that the decision to make the improvement was against the manifest weight of the evidence, our supreme court stated:

“Upon a careful examination of the record, without the advantages which the jury had of a view of the premises and of seeing the witnesses and hearing them testify, we cannot say that the verdict and judgment were palpably against the weight of the evidence. In cases of this character, where the evidence is conflicting and the jury views the premises and the verdict is within the range of the testimony, the court will not interfere with the finding of the jury as to the amount of benefits, unless there is something in the record showing that the jury was influenced by passion or prejudice or that there have been incorrect rulings by which the jury might have been misled.” Union Drainage District v. Hamilton (1945), 390 Ill. 487, 499, 61 N.E.2d 343, 348; see also Inlet Swamp Drainage District v. Anderson (1913), 257 Ill. 214, 100 N.E. 909.

Although the case sub judice was tried to a court without a jury, it seems elementary that the case standard of review applies. Since appellants have not raised any matters which they claim might have prejudiced their case or inflamed the court, we refuse to disturb its findings as to the advisability of the suggested modifications. Union Drainage District v. Hamilton (1945), 390 Ill. 487, 61 N.E.2d 343.

II. The Deeds

At trial, the objectors argued that the proposed modification was without the reservation of rights written into the deed through which the District conveyed lands to one of their parties. Two deeds were introduced into evidence. The deed from the District to objector Parham reserved rights of “operation, maintenance, and repair.” A deed entered into with another objector reserved the rights of “repairing, maintaining, and reconstructing the basin.’-’ From this, objectors argue that the portion of Parham’s deed reserving the rights of operation, maintenance, and repair was an ambiguous restrictive covenant, that the ambiguity should be resolved against the District as drafters of the deed, and that as a result of such a construction the proposed, modification was not authorized by the deed and in fact was forbidden by it. See Labadie v. Morris (1922), 303 Ill. 321, 135 N.E. 733.

Petitioners respond that the deed to Parham was given in open contemplation of the powers and duties of the drainage district and that therefore the words must be construed with those duties and powers in mind. They argue further that Parham was on at least constructive notice of the possibility of modifications, since Design Memo No. 3 (which specifically stated that modification of the reservoir was contemplated) was incorporated into an order for additional assessments which was on file in the Pike County circuit clerk’s office.

Petitioners support their argument for constructive notice by citing Chicago, Rock Island & Pacific R.R. Co. v. Kennedy (1873), 70 Ill. 350, where the court held that a power of attorney on file in a separate suit involving a parcel of land was sufficient constructive notice to eventual purchasers of the land that the title was in question.

Petitioners also cite cases wherein the power of “modification” was inferred from particular circumstances. In one, Baldozier v. Mayberry (1939), 226 Iowa 693, 285 N.W. 140, the court held that a drainage district was entitled to undertake substantial modification of a stream bed which would have eventually cut through the stream bank and found its way to its old bed had a suggested modification not been made. Objectors attempt to distinguish Baldozier as a case wherein a court approved a water district’s actions which were taken to prevent an existing structure from falling into a state of disrepair, whereas here there are no allegations that Pigeon Creek Reservoir is in a state of disrepair.

While this argument does serve to distinguish Baldozier, our opinion is that the words of right retention in the deed to Parham were sufficient to put him on notice that widely varied undertakings were permissible—and indeed contemplated—by the drainage district. This is especially true in light of the duty courts have placed on drainage districts to make additions, improvements, and enlargements in light of the best interest of the district as a whole. Further, the right to make substantial changes in the drainage districts is compelled by the legislative mandate that “[t]he commissioners shall *** keep the drains, levees, pumping plants and other works of the district in operation and repair” (emphasis added), which is found in section 4—15 of the Illinois Drainage Code. (Ill. Rev. Stat. 1983, ch. 42, par. 4—15.) Courts have (based on the aforementioned statute) been willing to construe the duties of commissioners as a ground for the employment of the extraordinary remedy of mandamus to compel action on the part of the district where a resident feels he is not receiving his share of the benefits. (See Satterfield v. Fairfield Drainage District (1958), 18 Ill. App. 2d 379, 152 N.E.2d 406.) Under these circumstances, it would seem to be only fair to allow the District to avoid a suit by taking appropriate actions on their own volition.

In conclusion, our opinion is that the reservation of the right of “operation, maintenance and repair” in the deed to Parham was sufficiently broad in scope to cover the suggested modification. Further, we find that Parham was on at least constructive notice of the statutory duty imposed on drainage districts, as well as the possibility of extensive modifications which were contemplated in Design Memo No. 3, on file in the Pike County courthouse.

III. The Easements

The objectors’ argument on this issue has the virtue of being syllogistic. The major premise is that all parties agree that if the proposed modification is completed, water will be stored for longer periods of time at higher levels in Pigeon Creek Reservoir than had previously been the case. The minor premise is that water seepage is directly proportional to the height of stored water and the length of time the water is stored and that there is already existent seepage. The conclusion is that the seepage will worsen to the point of there being a “taking” which requires condemnation proceedings.

Petitioners respond that even if seepage worsens, there is no showing that it would ever approach the situation before the court in People ex rel. Pratt v. Rosenfield (1948), 399 Ill. 247, 77 N.E.2d 697, where the court found that no taking had occurred.

In our estimation, Rosenfield controls. There, appellants were property owners in Kankakee. The city council of Kankakee, the Illinois Central Railroad, and the State Public Works and Building Department undertook a joint railroad renovation project. One result of the project was that the grade of the street which ran along appellants’ property was raised, which caused surface waters to run into appellants’ buildings and flood the lower floors. Appellants sought a writ of mandamus which would have ordered the appellees to proceed under the Eminent Domain Act, by condemning their property and paying them damages. All defendants filed motions to dismiss, which were allowed. The supreme court affirmed, noting that none of plaintiffs’ property was taken by the improvement and that the damages complained of were not of a sufficiently lasting nature to amount to a taking. The most important factor cited by the court was that the waters complained of were not permanent, but were temporary and came as a result of rain or snow.

The same factual situation is present here. Many of the witnesses testified that the seepage problems were bad when the reservoir had water in it but that the problems cleared up when the reservoir was down. No one contended that the proposed modification would result in water being constantly held in the reservoir in such a manner as to cause water to constantly stand in the objectors’ lands. Since the problem with seepage was admittedly temporary, the holding of Rosenfield controls and the trial court was correct in finding that it was unnecessary for the District to seek easements or condemnation of the objectors’ property.

Based on the foregoing discussion, we affirm the decision of the trial judge in all aspects.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER KEITH HOWARD, Defendant-Appellant.
    Second District
    No. 83—923
    Opinion filed February 19, 1985.

      G. Joseph Weller and Michael Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Andrea Becker, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Lester Keith Howard, was found guilty of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1) and home invasion (Ill. Rev. Stat. 1983, ch. 38, par. 12—11(a)(2)). He was sentenced to natural life imprisonment for murder and to an extended term of 60 years for home invasion. Defendant appeals, contending: (1) he was denied the effective assistance of counsel; (2) the State failed to preserve evidence, thus depriving him of the right to due process and to confront witnesses; (3) his guilt of home invasion was not proved; (4) the sentence to natural life imprisonment was excessive; and (5) imposition of the extended term for home invasion was not authorized by the statute.

The evidence at trial disclosed that Bridgett Howard, the wife of defendant’s brother, was stabbed to death in her home in the early morning of February 16, 1983. Her husband, Freddie Howard, arrived home at about 2 a.m. and found the body on the floor of their bedroom. Dr. Helen Young, a pathologist, testified death had resulted from more than 116 knife wounds and that a “buck knife,” which had been recovered near the deceased’s home and contained blood, could have caused the wounds.

The evidence also disclosed there had been arguments between defendant and his brother, Freddie, prior to the death. Defendant had lived in a garage apartment attached to his brother’s house which was rented by Gina Grieger. In late January, defendant threatened to kill Freddie during an argument in the apartment and produced a gun; Freddie told defendant to leave the apartment and he apologized. The men argued again a week later, and Freddie ordered defendant not to go near his house when Freddie was not home. A few days later, Freddie found defendant in the apartment and ordered him to leave.

Defendant was arrested on February 16 after discovery of the body and officers noticed fresh cuts on his index finger. Hairs recovered from the bed in decedent’s room matched defendant’s hair, and a shoe print on the bedspread matched one of defendant’s shoes. Witnesses who saw defendant at 8:30 a.m. on February 16 described him as appearing nervous and observed a blood stain on the collar of his jacket. Another witness testified she saw defendant at about 8:30 that morning dressed only in a T-shirt and slacks; defendant told her he was using the nearby laundromat. Henry Jones testified that he had talked with defendant at about 12:30 a.m. February 16 and defendant’s conversation rambled and he said he was on “syrup.” Defendant pulled out a “buck knife” and chased Jones, then threw the knife at him. Freddie Howard testified he saw defendant outside a tavern at 12:45 a.m. that morning and offered him a ride, which defendant declined.

The State called an F.B.I. agent, an expert witness in blood classification, who had tested blood samples from the murder scene, comparing them with blood samples of defendant, Ricky Belcher and Alvin Foxworth. Many of the tests made were inconclusive, but results for serum haptoglobin on some items of evidence were consistent with the blood of both defendant and Ricky Belcher. The witness testified that 50% of the black population have the same type of haptoglobin as does defendant and as was found at the murder scene; 30% of the black population have the same type blood as did the victim and as found also on some of the examined items. This witness stated that in testing for haptoglobin a blood sample is placed in a gel and, based upon the banding pattern which results, it can be classified as containing one of three types. The gel test samples made in this case were disposed of in the lab shortly after the testing in April 1982. If requested, photos of the samples depicting the banding pattern in the gel could be made, but were not in this instance.

The State also introduced evidence of several statements made by defendant to the police and others relating to this matter. Freddie Howard testified that a week after the murder defendant told him that Alvin Foxworth and Ricky Belcher must have entered the house. Defendant had said he was in the garage apartment and, when he heard a scream, ran upstairs to the deceased’s bedroom, but left because he felt other people were there. Defendant also told Gina Grieger he had gone to his brother’s house with Foxworth and Belcher, but was in the apartment when he heard decedent scream.

Defendant gave three statements to different police officers after his arrest. He first related that he had been at a bar until 2 a.m. on February 16, after which he went to his mother’s home and slept. When he learned later that day his sister-in-law was dead and his brother had been arrested, defendant stated he cut himself on the hand so it would appear he had killed her and the brother would not go to prison. Later the same day defendant was questioned by another officer and signed a typed statement which related that defendant met Belcher and Foxworth outside a tavern at 11:30 p.m. on February 15. They drank, smoked marijuana and used cocaine while discussing how defendant might get even with his brother for throwing defendant out of the apartment. The three men then went to Freddie Howard’s house and entered the bedroom so they could jump the brother when he came home. The decedent, who had been sleeping in the bed, awoke and Belcher stabbed her. Defendant stated he ran from the house. In a third interview, defendant stated he and the other two men decided to enter the Howard home to jump Freddie after they saw his car was not parked at the home. Defendant said he first went to the garage apartment to retrieve some jewelry, then joined the other men in the bedroom. One of the others walked to the bed with a knife and, when defendant heard a scream, he realized his sister-in-law was sleeping there and ran out of the house.

Defendant testified in trial he had never argued with the deceased. He agreed he had talked to Henry Jones that night, but denied threatening him with a knife. Defendant testified he met Fox-worth and Belcher and asked them for a ride to his brother’s house to pick up jewelry belonging to Gina Grieger, but denied asking them to help jump his brother. Defendant stated that when he left the garage apartment he noticed Foxworth’s car was empty and the house door open. He then went up to the bedroom and, feeling someone was there, ran out. Defendant said he was intoxicated and high on cocaine at the time. Defendant testified he signed the statement for the police without reading it because he was high and had told them the same story as in court. He denied asking anyone to help jump his brother or stab decedent.

An expert on blood classification called by the defense testified she was unable to view the gel test samples referred to by the State’s expert witness as they had been disposed of. She did examine a diagram the State’s witness had drawn for the jury in trial which purported to depict the banding pattern for a particular type of haptoglobin he had found in testing; defendant’s witness testified she could not determine from the diagram which type was depicted.

In rebuttal, Alvin Foxworth testified he had not seen defendant on the night in question. His girlfriend and her sister testified they had been with Foxworth that night.

I

Defendant contends he was denied effective assistance of counsel when his trial attorney failed to file a motion for discharge under the speedy-trial act and by failing to request production of blood test samples before their destruction.

It has been established that an attorney must give reasonably effective assistance to his client and that a defendant claiming ineffective assistance of counsel must show that the attorney’s performance was deficient and prejudiced the defense. (People v. Barnard (1984), 104 Ill. 2d 218, 233, 237, 470 N.E.2d 1005.) The right to discharge under the speedy-trial act is waived unless a motion is made prior to conviction (People v. Callahan (1981), 95 Ill. App. 3d 479, 481, 420 N.E.2d 787, appeal denied (1981), 85 Ill. 2d 568; Ill. Rev. Stat. 1983, ch. 38, par. 114—1(a)(1)) and failure of counsel to seek discharge of his client on these grounds can constitute ineffective assistance of counsel. (People v. Morris (1954), 3 Ill. 2d 437, 452, 121 N.E.2d 810.) However, failure of counsel to move for discharge cannot demonstrate either deficient performance on his part or prejudice to defendant where there were no lawful grounds to do so. People v. Gibson (1975), 30 Ill. App. 3d 555, 559, 333 N.E.2d 549; People v. Callahan (1981), 95 Ill. App. 3d 479, 482, 420 N.E.2d 787, appeal denied (1981), 85 Ill. 2d 568.

In the present case, defendant remained in custody from his arrest on February 16, 1983, to commencement of trial on September 12. The State and defendant agree that the 120-day speedy-trial term was temporarily suspended by trial continuances requested by defendant from June 13 to July 11 and from July 11 to August 22. They dispute, however, whether the continuance granted by the trial court on August 19, which was on the State’s motion and continued the trial date to September 12, was an extension of the 120-day term under section 103—5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103—5(c)). If the trial date was not extended under this section, then defendant was brought to trial on the 138th day and would have been entitled to discharge; if, however, the term was so extended, then there was no basis upon which defendant’s counsel could have sought discharge.

Section 103—5 provides, in part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.
(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”

Defendant argues that the State never asked the trial court to extend the speedy-trial term or to make the determinations under section 103—5(c). He asserts the State’s motion was for a general continuance under section 114—4(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 114—4(c)), the grant of which would not toll the speedy-trial term, and the trial court thus never exercised its discretion under section 103—5(c).

The verified motion by the State was presented to the trial court on August 19, 1983, when trial was scheduled to commence on August 22. Omitting caption and signatures, it states as follows:

“Motion to Continue
Now comes Fred L. Foreman, State’s Attorney in and for the County of Lake, State of Illinois, represented by Assistant State’s Attorney, Steven McCollum, and hereby moves this Honorable Court to continue the trial of the above-captioned case to September 12, 1983, and in support thereof states:
1. The following material witnesses will be unavailable for trial on August 22, 1983: a) Dr. Helen Young and, b) Detective Donald Meadie.
Wherefore the People respectfully move that this case be continued for Trial on September 12,1983.”

At the hearing of the motion the assistant State’s Attorney advised the court that Dr. Young told him she had a scheduled vacation out of the country during the period the case was set for trial and had not taken a vacation in 10 years. She would be available in September. The court was further advised that Detective Meadie was being married that weekend and was going on his honeymoon. Defendant’s counsel did not object to the State’s motion, saying “Just for the record, we would be ready for trial on the 22nd.” The trial court granted the continuance, stating it would be the last one.

Defendant relies upon People v. Toolate (1978), 62 Ill. App. 3d 895, 379 N.E.2d 927, in which the reviewing court held that a similar motion for continuance by the State was insufficient and could not be considered as a request for an extension under section 103—5(c), as it more closely resembled a motion for continuance under section 114— 4(c) and thus did not toll the 120-day term. The reviewing court noted the motion did not identify the section of the statute under which it was brought and did not mention the due diligence requirement of section 103—5(c) or that the evidence would be available at a later date. It was further noted that the trial court did not make any findings under section 103—5(c), nor did it utilize the 60-day limitation of the statute. The court concluded defendant was entitled to be discharged.

The close analysis of the requirements of a motion under section 103—5(c) made in People v. Toolate has been since considered by the appellate court in three cases, each of which distinguished it. In People v. Folenga (1980), 83 Ill. App. 3d 210, 404 N.E.2d 935, appeal denied (1980), 81 Ill. 2d 595, the State’s motion for continuance specified it was brought pursuant to both sections 114—4 and 103—5, stating a material witness would not be available on the date set for trial and that defendant was in custody and the 120-day term would expire by a new trial date. The State’s Attorney further orally advised the trial court that another witness would also be unavailable until December 4, as he was in police training, and suggested that date for trial; December 4 was two days past the 120-day term in that case. The trial court granted the continuance and on December 4 denied defendant’s motion for discharge. The reviewing court affirmed on appeal, finding there were differences which removed the case from the narrow confines of Toolate. The court noted the State’s motion had referred to section 103—5 and that the trial court was aware the continuance would extend beyond the 120-day term. It found from the record the State had exercised diligence in keeping contact with the witnesses and that the trial judge was satisfied that granting the motion was not for any reason other than interests of justice and did not prejudice defendant. The reviewing court considered the purposes of the statute would not be well served if the State was required to follow a rigid format in obtaining a continuance under section 103—5(c).

In People v. Young (1981), 97 Ill. App. 3d 187, 423 N.E.2d 221, appeal denied (1981), 85 Ill. 2d 561, the State’s motion for continuance of trial referred to both sections 103—5 and 114—4 in seeking a continuance because of the absence of a material witness from the country. The State also informed that trial court the witness would return just one day prior to expiration of the 120-day term. The reviewing court noted the State had presented its justifications for the continuance in terms of due diligence, “the operative test for a section 103—5(c) continuance” (97 Ill. App. 3d 187, 190) and that temporary absence of a material witness from the country was a valid ground for a section 103—5(c) continuance. The court further noted that allegations of due diligence need not be presented by affidavit, but may be made orally. 97 Ill. App. 3d 187, 190.

Most recently, in People v. Garrett (1982), 104 Ill. App. 3d 178, 432 N.E.2d 1305, appeal denied (1982), 91 Ill. 2d 574, the court considered a similar general motion for continuance, as in the present case, which also did not designate whether it was brought under section 103—5 or 114—4. Defendant opposed the continuance, but the trial court granted the motion “in accordance with Section 114— 4(c)(2)” and set the case for trial on the September docket. On September 10 defendant moved for discharge, alleging the speedy-trial term had expired September 8, to which the State responded that its earlier motion for continuance had acted to extend the term. After a hearing, the trial court denied defendant’s motion for discharge and made findings: (1) the prosecution had exercised due diligence in obtaining material evidence; (2) there were reasonable grounds to believe the evidence would be available later; (3) the continuance had been granted pursuant to section 103—5(c), and the case came on for trial within the maximum period of extension provided by section 103—5. On appeal, defendant relied upon People v. Toolate, arguing the State had failed to request an extension of time under section 103—5(c) at the time of its motion for continuance and the speedy-trial term was not extended. The reviewing court distinguished Too-late, as the trial court had subsequently made findings that the State exercised due diligence to obtain the evidence and that it would be available at a later date if the time was extended. The State had indicated to the trial court the missing witness would be gone for the month of August and implied he would be back in September. The reviewing court noted that after the continuance was granted trial commenced only one week into the extended period.

In our view, the essential requirements of section 103—5(c) in order to permit extension of the 120-day period within which a defendant’s trial must commence are showings by the State it has diligently sought, without success, to obtain material evidence within the term and that such evidence will be available at a later day. The pathologist who would be out of the country and the detective who was to be on his honeymoon clearly offered material evidence when they subsequently testified in trial, the latter to a statement given by defendant. The record demonstrates the State’s diligence in being informed of the unavailability of these witnesses for the August 22 trial date and knowing that they could appear for trial on the continued date of September 12. Neither defendant’s trial counsel nor counsel on appeal have suggested these witnesses were not material to the case or that the State did not act diligently to secure their appearance at the original August 22 trial date. Contrary to defendant’s argument, the trial court did exercise its discretion in granting the State’s motion for a continuance on these grounds, expressing some consternation at the failure of the witnesses to advise of their plans and stating that would be the last continuance, unless by the defense should discovery not be completed.

The State’s motion did not refer to either of the statutes relating to continuances, and the trial judge did not specify under which statute he was granting the continuance. Nor was the trial court advised at the August 19 hearing that the continuance would extend the trial date beyond the 120-day term. We do not consider these omissions to be dispositive, however, as the requirements of section 103—5(c) were met by the unrebutted motion and representations of the State and the determination of the trial court granting the continuance to September 12, a time well within the extended period. See People v. Arndt (1972), 50 Ill. 2d 390, 393, 280 N.E.2d 230.

As we have determined the trial court did not abuse its discretion in granting the continuance on the record before it, defendant’s present argument his trial counsel was ineffective for failing to seek his discharge is without merit. It seems apparent that defendant’s trial counsel was aware the State’s motion for a continuance was meritorious and that to have opposed it on August 19 or to have sought defendant’s discharge on speedy-trial grounds after expiration of the initial 120-day speedy-trial term would have been futile. People v. Callahan (1981), 95 Ill. App. 3d 479, 481-82, 420 N.E.2d 787, appeal denied (1981), 85 Ill. 2d 568.

Defendant also contends his trial counsel was incompetent for failing to request that the blood samples taken from the murder scene and the gel in which blood samples were tested be preserved. He suggests that independent testing by defendant’s expert witness may have determined the State’s expert had incorrectly identified the blood enzymes found or may have found others by additional testing which might have excluded defendant as the offender or may have established that the blood on defendant’s clothing did not come from the victim.

Defendant has not established he was prejudiced by any failure of his counsel to seek preservation of the evidence for independent testing. The test results obtained in the F.B.I. laboratory were inconclusive in that 50% of the black population have the same type of haptoglobin as does defendant and that found on certain of the exhibits, and 30% have the same type as did the victim. Defendant and the victim are both black. Defendant’s argument that his expert may have reached conclusions from separate tests which would assist the defense is mere conjecture and insufficient to show actual prejudice. (See People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523; People v. Hambrick (1979), 68 Ill. App. 3d 447, 386 N.E.2d 455, appeal denied (1979), 75 Ill. 2d 592.) Moreover, it cannot be said that the blood test evidence offered by the State, which defendant suggests his expert might have contradicted, had a significant role in defendant’s conviction. Defendant placed himself at the murder scene by his own testimony and statements, and his hair samples and shoe print matched those found there. His testimony other men attacked the victim with a knife was rebutted. Defendant does not in this appeal challenge the sufficiency of the evidence to convict him of murder.

Defendant also notes other conduct by his trial counsel which he asserts evidences incompetence. We have considered the matters raised and do not agree defendant was deprived of the effective assistance of counsel in the conduct of his defense. Competency is determined by an evaluation of the totality of counsel’s conduct at trial. (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677.) Counsel’s performance here reflected preparation and thorough familiarity with the case. He skilfully examined the witnesses and in his argument to the jury carefully analyzed weaknesses in the State’s case and attacked the credibility of the State’s witnesses. His overall performance afforded defendant the standard of representation to which defendant was entitled under the sixth amendment of the Federal Constitution.

II

Defendant argues, alternatively, that the State had a duty, in the absence of a defense request, to preserve the blood test evidence and failure to do so violated due process and undermined defendant’s ability to confront the State’s blood expert in trial.

As earlier discussed in this opinion, the blood sample evidence had little, if any impact upon the outcome of the case, and it is entirely speculative on defendant’s part that it may have assisted his defense to have separately tested it. In the absence of prejudice defendant’s present argument lacks merit.

Furthermore, the State did not have an independent duty, in these circumstances, to preserve this evidence. Defendant relies upon People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573, and People v. Dodsworth (1978), 60 Ill. App. 3d 207, 376 N.E.2d 449. We do not consider these cases to support defendant as they relate to the independent duty of the State to preserve an alleged controlled substance which is the basis for a drug prosecution for further testing. Our supreme court recently rejected application of those decisions to noncontraband evidence where its exculpatory value is not apparent before it is destroyed. People v. Jordan (1984), 103 Ill. 2d 192, 209, 469 N.E.2d 569; see also California v. Trombetta (1984), 467 U.S. _, 81 L. Ed. 2d 413, 104 S. Ct. 2528; People v. Flatt (1979), 75 Ill. App. 3d 930, 394 N.E.2d 1049, vac. on other grounds (1980), 82 Ill. 2d 250, 412 N.E.2d 509.

Ill

We next consider whether the evidence was sufficient to establish that defendant knew or had reason to know there was someone in his brother’s house when defendant entered it. Defendant argues he had testified he believed no one was home, his brother’s car was not in the driveway, and he notes the absence of evidence of lights or television operating therein which could suggest someone was home. Defendant contends the proof was insufficient to establish this essential element of the offense of home invasion, requiring that conviction be reversed.

Home invasion occurs when a person who is not a peace officer without authority “knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present ***.” (Ill. Rev. Stat. 1983, ch. 38, par. 12—11(a).) In this case defendant was aware that the home he entered was the dwelling place of his brother, the brother’s wife (decedent) and their children. The brother testified he had spoken to defendant outside a tavern at 12:45 a.m. that night; defendant was then aware the brother’s wife and children were not with him. Defendant had lived in the apartment next to the Howard home, and there was testimony decedent usually went to bed at 10:30 or 11 p.m. and the Howard children were always home late at night. We find in these circumstances there was sufficient evidence from which the jury could conclude that defendant knew there was a substantial probability that another person or persons were present in the home when he entered it. (People v. Davis (1982), 106 Ill. App. 3d 260, 264, 435 N.E.2d 838; Ill. Rev. Stat. 1983, ch. 38, par. 4—5; People v. Austin (1984), 123 Ill. App. 3d 788, 463 N.E.2d 444.) Only where the verdict of a jury is so improbable or palpably contrary to the evidence as to raise a reasonable doubt of guilt will a reviewing court reverse it. People v. Fox (1983), 114 Ill. App. 3d 593, 597-98, 449 N.E.2d 261, appeal denied (1983), 94 Ill. 2d 554.

IV

Defendant next contends the sentence of natural life imprisonment imposed for his murder conviction was excessive and should be reduced. He asserts the sentence was based entirely on the nature of the offense and failed to give consideration to defendant’s potential for rehabilitation as required by the Illinois Constitution of 1970, article I, section 11, and section 1—1—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1001—1—2).

Defendant was 20 years old when sentenced, alcoholic and addicted to drugs. He had been previously convicted of battery on two occasions, resisting arrest, misdemeanor theft and twice for robbery. Defendant served 364 days’ imprisonment for the theft, but had been sentenced to probation for the robberies; he was on probation at the time of the present offenses. We note defendant has not challenged the trial court’s finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (See Ill. Rev. Stat. 1983, ch. 38, pars. 1005—8—1(a)(1), (b).) He argues that his previous record was minor and notes he has a two-year-old son for whom he is concerned because the child’s mother was using drugs and living with a drug dealer. Defendant also points to evidence he was high on drugs on the night of the killing, suggesting his drug and alcohol problems were given inadequate consideration by the trial court.

It is clear from the record of the sentencing hearing that the court carefully considered all of the statutory factors in mitigation and aggravation before imposing sentence (Ill. Rev. Stat. 1983, ch. 38, pars. 1005—5—3.1, 1005—5—3.2) in an effort to balance the goal of restoring defendant to useful citizenship with the requirement that the penalty be determined in accordance with the seriousness of the crime. The court found defendant’s testimony at trial to be untruthful, that he lacked remorse, and it rejected the mitigating factors that defendant’s conduct was unlikely to recur or that he was unlikely to commit another crime. We conclude the trial court did not abuse its discretion in finding defendant was beyond rehabilitation in imposing a natural life sentence. People v. La Pointe (1981), 88 Ill. 2d 482, 489-90, 494, 501, 431 N.E.2d 344.

Defendant also contends the trial court erroneously considered reports of the nature of his prior robbery convictions which do not appear in the record of this case. The trial judge stated, in reviewing defendant’s prior record that in committing battery he had struck a person on the head and that the two robbery victims had been women, one of whom defendant had struck with his fist. Defendant cautions that a trial court must exercise care to insure the accuracy of information relied upon in imposing sentence and urges the case be remanded for a new sentencing hearing. People v. Hayes (1973), 55 Ill. 2d 78, 302 N.E.2d 37.

It is evident from the record that at the commencement of the sentencing hearing the trial judge had before him a presentence report relating to defendant dated January 26, 1982, prepared when he was sentenced for robbery. The report was made available to both defendant and the State and was discussed on the record with defense counsel as to accuracy. Counsel then made no objection to this procedure, and defendant does not now question the accuracy of the matters referred to by the trial court.

A sentencing judge has wide discretion in considering evidence to assist him in determining sentence (People v. La Pointe (1981), 88 Ill. 2d 482, 494-95, 431 N.E.2d 344), and reference to the facts relating to defendant’s previous offenses contained in the earlier presentence report was proper in these circumstances. See People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261.

V

Defendant’s final contention is that the extended term of 60 years’ imprisonment imposed for home invasion was not authorized and should be reduced to a term of 30 years.

In People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569, our supreme court considered section 5—8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—2(a)) and determined that a defendant who has been convicted of multiple offenses of differing classes may only be sentenced to an extended term for a conviction within the most serious class, and then only if that offense was accompanied by brutal or heinous behavior. (People v. Jordan (1984), 103 Ill. 2d 192, 206.) As defendant was here convicted of murder, a more serious offense than the Class X offense of home invasion, the extended 60-year term imposed for the latter must be reduced to conform to the requirements of the sentencing statute.

Accordingly, the judgment of the circuit court will be affirmed, except that the sentence imposed for home invasion will be reduced to 30 years, the maximum term authorized under section 5—8—1(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8— 1(a)(3)) for a Class X felony.

Affirmed as modified.

LINDBERG and REINHARD, JJ., concur.