author: Mr. JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD SIMON, Defendant-Appellant.
    First District (5th Division)
    Nos. 79-2468, 80-274 cons.
    Opinion filed October 16, 1981.

      Robert H. Aronson, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Lawrence Krulewich, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged by indictments with three counts of delivery of cocaine (Ill. Rev. Stat. 1979, ch. 56M, pars. 1401(a)(2), 1401(b)), two counts of conspiracy to deliver cocaine (Ill. Rev. Stat: 1979, ch. 38, par. 8 — 2), and two counts óf calculated criminal drug conspiracy (Ill. Rev. Stat. 1979, ch. 56/2, par. 1405). A jury found defendant guilty of each charge and judgment was entered. The trial court, finding the simple conspiracies and the deliveries merged into the greater calculated criminal drug conspiracies, sentenced defendant to concurrent seven-year terms for the two calculated criminal drug conspiracies. Defendant appeals. We affirm in part, reverse in part, and remand for sentencing.

Defendant raises the following issues on appeal:

(1) whether the amendment of his indictments shortly before trial was improper; (2) whether certain evidence taken incident to his warrantless arrest should have been suppressed; (3) whether entrapment had been proved as a matter of law; (4) whether the State proved that the substance delivered was cocaine; (5) whether the court erred in denying his motion for a mistrial; (6) whether he was proved guilty beyond a reasonable doubt of calculated criminal drug conspiracy; (7) whether the Class X felony of calculated criminal drug conspiracy is unconstitutional as applied to him; and (8) whether certain closing remarks of the prosecutor resulted in prejudicial error.

The following evidence was adduced at trial. Additional facts necessary to the resolution of the issues raised will be discussed as needed. In late 1977 a man named Dane Roth contacted the defendant and asked his help to obtain cocaine. Defendant was unable to obtain any cocaine for Roth until May 19, 1978. On that date Roth, accompanied by Judith Jankovich and A1 Rodriguez, two special agents employed by the Illinois Department of Law Enforcement, went to defendant’s residence. There an individual named Angelopoulos, who supplied defendant with cocaine for the latter’s personal use, sold some cocaine to the agents. Dane Roth was subsequently arrested for assisting in this sale and, as a result, became an informant.

On June 15, 1978, Roth, now an informant, and Agent Jankovich again met with defendant. Jankovich inquired about purchasing a pound of cocaine. Defendant stated he would check with his people and see what he could do.

The next day Jankovich and Roth met with defendant at the latter’s residence. Defendant testified that Roth pulled him aside and pleaded with him to get the cocaine Jankovich wanted. Jankovich testified that before she and Roth left, defendant uncapped a bottle containing white powder and offered her some to snort. Jankovich refused, but defendant snorted a “line” of cocaine. Jankovich also testified that when she returned to defendant’s apartment later that same day, defendant identified another individual, Meryl Saxe, as his source of “good coke.” Meryl Saxe and defendant had been friends from childhood.

Defendant testified that a few days later Roth called him, told him he had been busted and that defendant would be arrested if he didn’t cooperate. Jankovich testified that she never told defendant she was a police agent. Defendant testified from this point on he thought he was helping Jankovich. Neither defendant nor Jankovich testified that defendant ever mentioned to her he knew she was an agent.

Subsequently, defendant made two calls to Jankovich to arrange the sale of an ounce of cocaine to her. That sale was consummated on July 12, 1978, at the home of Meryl Saxe, where defendant had directed Jankovich. Two others, Albert Greenberg and Harold Siegel, were also present. Siegel produced some white powder. Defendant snorted some and pronounced it good. Jankovich gave Siegel $2250 for the cocaine and told him that she was interested in purchasing larger quantities. Siegel quoted her an $8000 price for four ounces. Jankovich and defendant left. Before driving away, Jankovich gave defendant two marked $50 bills.

On July 13, 1978, defendant called Jankovich, at which time she complained that the $8000 price was too high. Defendant called her back and quoted her a lesser price. She also asked him the prices of a pound and of a kilo of cocaine. He called her back later and quoted her prices of $25,000-$27,000 and $50,000, respectively. Arrangements were made for Jankovich to purchase four ounces of cocaine. The sale occurred at Meryl Saxe’s apartment later that evening. Defendant, Saxe, Siegel and Agents Jankovich and Gomilla were present. Jankovich paid Siegel for the cocaine and, after leaving the apartment, Jankovich paid $250 to defendant.

On July 19,1978, a meeting took place to discuss the possible sale of a pound of cocaine to Jankovich. In attendance were Siegel, Saxe, Green-berg, Jankovich and defendant. During the discussion Siegel turned to defendant and told him that if Jankovich was “the man you’re dead.” Defendant gave Jankovich Saxe’s telephone number so that she might contact him personally.

Between June 20 and 22,1978, Jankovich talked with Saxe to arrange for the purchase of a pound of cocaine. On July 23, 1978, Jankovich told defendant that she would like the sale to occur at a place of her designation. Defendant told her to speak to Saxe about the matter. Jankovich called him and Saxe told her that the sale would occur at defendant’s home that evening. The price for the pound of cocaine was $26,000.

A few hours later Jankovich and Gomilla went to defendant’s home where defendant, Saxe, Siegel and Greenberg were waiting. Defendant told Greenberg and Saxe to produce “the package,” Greenberg handed a grey paper bag to Jankovich, who removed a plastic bag and gave it to Gomilla. Gomilla tested the contents of the plastic bag and determined it was possibly cocaine. Defendant then weighed the plastic bag and its contents. Gomilla went outside to get the money to purchase the cocaine. Upon returning, he gave the money to Greenberg who along with Siegel counted it. There was $26,000 in five $5000 bills and one $1000 bill.

After the sale was completed, Jankovich and Gomilla left defendant’s home. When completely outside, Gomilla gave a prearranged arrest signal to other agents who were waiting outside. Four of those agents approached the front door of defendant’s residence. They knocked and announced their office several times. When no one opened the door, they smashed into it with a battering ram. When the door would not give in, the battering ram was thrown through the front window. One agent entered the residence through the window. Upon entering, he saw defendant approaching the front door, whereupon he arrested him and ordered him to open the front door. Saxe, Siegel and Greenberg were also arrested. Incident to the arrest, $20,000 was taken from Siegel, $6,000 was taken from Greenberg, and $81 was taken from defendant. A loaded gun which had been in Greenberg’s possession was also taken into evidence by the agents. The arrests and accompanying search and seizure were made by the agents without either an arrest or search warrant.

Opinion

Defendant first asserts that the trial court erred when it allowed the People to amend the indictments of defendant for the offense of calculated criminal drug conspiracy shortly before trial.

The original indictments recited in pertinent part that “ ° * * Richard Simon * * * organized and directed said conspiracy in violation of Chapter 56-lz, Section 1405, Illinois Revised Statutes 1977, as amended * e Upon the People’s motion, the word “directed” was deleted from the calculated criminal conspiracy drug counts. Defendant asserts that this alteration was material, lessening the prosecution’s burden of proof and causing substantial prejudice to him. The People counter that the word “directed” was mere surplusage and properly deleted.

An indictment may be amended on motion of the State’s Attorney or defendant at any time because of formal defects (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 5), including “[t]he presence of any unnecessary allegation.” Ill. Rev. Stat. 1979, ch. 38, par. Ill — 5(d).

The primary safeguard of indictment by grand jury, which remains secured to criminal defendants, is to protect individuals from the caprice of the public prosecutor. (People v. Jones (1973), 53 Ill. 2d 460, 292 N.E.2d 361.) Hence, where no hint of surprise or prejudice is shown, the allowance of an amendment is not error. 53 Ill. 2d 460, 465, 292 N.E.2d 361, 363.

Defendant cites People v. Betts (1979), 78 Ill. App. 3d 200, 397 N.E.2d 106, for support that the amendment in the instant case was substantive and not merely formal. In Betts, the court stated that an amendment is no longer technical where it seeks to change the very offense with which the defendant is charged. 78 Ill. App. 3d 200, 202, 397 N.E.2d 106, 108.

Here, defendant was charged with calculated criminal drug conspiracy. (Ill. Rev. Stat. 1979, ch. 5&A, par. 1405.) An essential element of that crime is that the defendant alternatively either organize, or finance, or direct, or obtain $500 from the conspiracy. (Ill. Rev. Stat. 1979, ch. 56½, par. 1405(b)(3); People v. Biers (1976), 41 Ill. App. 3d 576, 353 N.E.2d 389.) In the instant case the deletion of the word “directed” merely removed an alternative element but did not alter the crime charged. Hence, the amendment neither surprised nor prejudiced defendant and, accordingly, was proper.

Defendant next asserts that the trial court erred in denying his motion to suppress certain evidence taken by agents incident to their forced entry into his home and his subsequent warrantless arrest there.

Preliminarily, we note, however, that framing the issue in this manner does not accurately reflect the facts of this case. Agents Jankovich and Gomilla initially entered defendant’s home as invitees of defendant, pursuant to his consent. While thus validly within his home, they witnessed the commission of a felony in their presence. They withdrew from defendant’s home and re-entered, moments later with fellow agents to effect the arrest of defendant and his associates.

Jankovich and Gomilla, having witnessed the commission of a felony in their presence, could have effected defendant’s arrest upon their first consensual entry into his home (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c); People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608) even though such entry had been gained by ruse. (See Lewis v. United States (1966), 385 U.S. 206, 17 L. Ed. 2d 312, 87 S. Ct. 424, rehearing denied (1966), 386 U.S. 939, 17 L. Ed. 2d 811, 87 S. Ct. 951.) They did not do so, however, but rather arrested defendant upon their nonconsensual re-entry into his home.

Absent exigent circumstances, a warrantless and nonconsensual entry into a suspect’s home to effect a routine felony arrest has been held impermissible by the supreme courts of both the United States and Illinois. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.) Therefore, the issue for determination here is whether under the facts of this case the momentary withdrawal from defendant’s home and subsequent re-entry to effect his arrest and the arrest of his associates were justified by exigent circumstances. We believe such circumstances were present.

At the point in time prior to exiting defendant’s home when Jankovich and Gomilla could first have arrested defendant and his colleagues, they were outnumbered; at least one of the prospective arrestees was armed and at least two were believed to be heavy drug dealers and dangerous. Under these circumstances we do not consider this arrest routine nor the agents’ action in withdrawing to obtain assistance to effect the arrests in question unreasonable, particularly when we consider the guidelines laid down by the Illinois Supreme Court in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, to determine whether exigent circumstances existed there to justify a warrantless arrest: (1) the immediacy with which the officers proceeded to the defendant’s residence upon learning of his identity; (2) the fact that there was no deliberate or unjustified delay by the officers during which time a warrant could have been obtained; and (3) the belief that the arrestee was armed and exhibited some sign of a violent character. Additionally, the court noted that the officers in Abney were acting upon a clear showing of probable cause; the arrestee had been clearly identified; the officer had strong reason to believe that the arrestee was in the premises entered; and finally, that the entry was peaceful.

Although the re-entry in the instant case was certainly not peaceful, we are unable to say on this record that the force utilized was unreasonable, and hence we believe on balance that the factors cited in Abney were established. People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

Defendant next asserts that the trial court should have granted defendant’s motion for a directed finding at the close of all the evidence because entrapment had been proved as a matter of law.

Defendant’s position is predicated on the following argument. Subsequent to the presentation of the State’s case, defendant testified in his own behalf. He stated that on or about June 18,1978, Dane Roth, a police informant, telephoned him and told him that he had been busted by Jankovich, a police agent. Roth allegedly also told defendant that he, too, would be arrested unless he cooperated with her. From that point on, defendant testified, he believed he was only assisting Jankovich, so as to avoid his own arrest. The State did not call Dane Roth to rebut defendant’s testimony. Defendant asserts that the failure of the prosecution to call Roth in rebuttal established entrapment as a matter of law, relying on People v. Spahr (1978), 56 Ill. App. 3d 434, 371 N.E.2d 1261. However, we find the Illinois Supreme Court case of People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812, cert. denied sub nom. Thomas v. Illinois (1980), 445 U.S. 929, 63 L. Ed. 2d 762, 100 S. Ct. 1316, to be dispositive of this issue. There the court rejected a per se rule that a conviction for the unlawful sale of narcotics could not stand when a police informer supplied the drugs. (77 Ill. 2d 396, 404, 396 N.E.2d 812, 816.) The court also stated that the failure of the State in that case to call the informant to rebut the defendant’s testimony that the informant supplied the drugs only created an inference against the State. (77 Ill. 2d 396, 406, 396 N.E.2d 812, 817.) Thus, while in this case, as in Cross, the failure of the State to call the police informant to rebut defendant’s testimony may have given rise to an inference against the State, it did not establish entrapment as a matter of law. Therefore, the issue of entrapment remained a question of fact to be determined by the jury. (People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.) Accordingly, the trial court properly denied defendant’s motion for a directed finding at the close of all the evidence that entrapment had been established as a matter of law.

Defendant next asserts that reversal of his conviction is required because the State failed to prove beyond a reasonable doubt that the substance delivered to Jankovich was cocaine as defined in the Controlled Substances Act.

Two forensic scientists testified on behalf of the prosecution as to the various methods which they employed to test the substance they had received from Jankovich. They testified that after using the thin layer chromatography test, the mass spectronomy test and the infrared spectrometer test, they were able to conclude that the substance they tested was cocaine.

The defendant called Dr. Robert Shapiro, a university chemistry professor, to testify on his behalf. Dr. Shapiro stated that in his opinion the only test to distinguish between the stereoisomers of cocaine which had been demonstrated in scientific literature was the nuclear magnetic residence spectometry test, which was not used in the instant case. On cross-examination Dr. Shapiro stated that he was unfamiliar with certain comparative tests utilized by the prosecution’s expert witnesses in identifying the substance in question as cocaine and that he never in fact tested the substances delivered to Jankovich and analyzed by the prosecution’s witnesses.

In view of the expert testimony in this case, the essence of defendant’s argument is that the State failed to prove beyond a reasonable doubt the substance in question was cocaine because the testimony of the expert witnesses for the prosecution and for the defense conflicted with regard to the tests necessary to determine if the substance in question was cocaine. We find no merit in this contention. To the extent that evidence is conflicting, it is the province of the trier of fact to resolve the conflict and decide which witness or witnesses will be believed. (People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017.) Any conflict in the testimony between the expert witnesses in this case was resolved by the jury, and we find no reason to disturb that determination.

Defendant next asserts that the court erred in denying his motion for a mistrial based upon a question posed by the prosecution to defendant’s expert during cross-examination. However, we consider this issue to be waived as defendant failed to raise this alleged error in his written post trial motion for a new trial. The general rule is that the failure by the defendant to raise an issue in a written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Defendant also contends that the People failed to prove beyond a reasonable doubt that he organized a calculated criminal conspiracy, relying on People v. Lucas (1975), 33 Ill. App. 3d 309, 337 N.E.2d 103. In Lucas, the court stated that in order to prove that a defendant either organized or directed a conspiracy to deliver a controlled substance, there must be evidence which shows in substance that the defendant either had sufficient influence over his co-conspirators to be in a position to systematize their activities or to give orders or instructions that would to some extent be binding. 33 Ill. App. 3d 309, 314, 337 N.E.2d 103, 107.

Defendant was convicted and sentenced for organizing two criminal drug conspiracies, one from July 12-13 and another from July 19-23. However, defendant asserts in his brief that the record shows that he did not exercise any influence in the three sales to Jankovich and that he did not organize anything.

Both Jankovich and defendant testified as to the events which occurred on July 12 and 13 and from July 19-23.

Jankovich testified that defendant called her at the MEG office on July 12, 1978, at 7 p.m. and told her that his people had one ounce of cocaine to sell and that he would pick it up and return to his home. He told her the price would be $2250 and that he wanted to be taken care of for setting up the deal — explaining that he wanted part of the cocaine. Jankovich said she couldn’t give him cocaine but she would give him money.

Jankovich went to defendant’s house about 11 p.m. After her arrival defendant made a telephone call, hung up, and after telling her that he was leaving to get the “dope,” left the house. Later defendant telephoned his home and gave Jankovich directions to his location. Jankovich followed his directions to an apartment complex where she looked for an apartment with a flashing light. After locating it, she knocked on the door and Meryl Saxe opened it. Hal Siegel and A1 Greenberg were also present in addition to Saxe and defendant. Siegel produced the cocaine; Green-berg said he had weighed it and that it was of excellent quality. Defendant provided a rolled bill and he, Greenberg and Siegel each snorted a line of cocaine. Defendant told Jankovich the cocaine was good. Jankovich took $2250 from her purse and gave it to Siegel. She told Siegel she wanted larger quantities. Siegel responded that a sale of four ounces would have to go first. Jankovich assured him she could move it safely. Siegel and Greenberg agreed that moving it safely was most important. Jankovich asked Siegel the price for four ounces and Siegel responded that it would cost $8000 — assuring her the larger the quantities the cheaper the price. Jankovich stated she would let him know. Defendant stated he would call her the next day, July 13, at approximately 2 p.m. Jankovich left with defendant who said he wished to walk her out to her car. Outside Jankovich gave him $100. Defendant returned to the apartment.

On the following day, July 13, defendant called Jankovich at approximately 6 p.m. Jankovich, complaining of the quality, told him her people would not pay $8000 for four ounces. Defendant said he would check with his people. Defendant called back at 7 p.m. and said his people would sell her four ounces for $7750. She again complained of the price. He responded that the more business she would do the cheaper the price. They hung up. Jankovich called defendant back. She asked how much a pound and a kilo of cocaine would cost. Defendant called her back quoting her a price of $25,000-27,000 for a pound and $50,000 for a kilo and stating that she could have it within two or three days. They hung up. Jankovich called him back and told him the pound and kilo prices were very good and that she would buy the four ounces. Defendant told her to go to his house about 10 p.m. that evening.

That night Jankovich accompanied by Gomilla went to defendant’s house. However, only Jankovich went inside. After Jankovich’s arrival, defendant made a telephone call to report her presence. Defendant and Jankovich went outside to where Gomilla was waiting. Jankovich took the money from Gomilla and had defendant count it. Defendant, after telling Gomilla and Jankovich to follow him in their car, directed them to Meryl Saxe’s residence. Saxe met them outside of his apartment and escorted defendant and Jankovich inside. Greenberg and Siegel were also present in Saxe’s apartment.

Siegel pulled out a clear plastic bag and said he only had 3)z ounces to sell. Defendant was to have called him by 2 p.m. to let him know if Jankovich wanted the four ounces, but he failed to call in time. Therefore, Siegel sold one-half ounce to another customer.

Defendant weighed the package and divided a small amount into four lines. He snorted a line and pronounced it good. Defendant and Jankovich went outside to get the money. Upon their return, Jankovich asked Siegel how much he wanted for the 3% ounces, and he replied $6750. Jankovich gave him $7750, and Siegel counted out the proper amount. Jankovich put the cocaine in her purse. Siegel said he had no intention of handling a kilo of cocaine. Jankovich told Siegel they would discuss it later and defendant told them he would call them Monday morning. Defendant and Jankovich left the apartment. Defendant commented to her while outside that they were going to make a lot of money. Jankovich asked defendant how much he wanted. He said $250, to which she agreed. After giving him the money, she left the parking lot.

Defendant also testified as to the events of July 12 and 13. He stated that he called Jankovich and told her that he was able to get something for her. Meryl Saxe had told him that he could get. an ounce of $2250. Defendant relayed this information to Jankovich. Jankovich went over to defendant’s house on the evening of July 12. She was to give defendant the money. He would then take it to Saxe’s and exchange it for the ounce. Upon arriving at defendant’s house, however, Jankovich wouldn’t part with the money. Defendant then went to Saxe’s, called her, and gave her directions there. The sale was completed at Saxe’s. Jankovich gave Siegel the money and he gave her the cocaine. Defendant stated he snorted a line of cocaine in Jankovich’s presence. Siegel, Saxe, Greenberg and Jankovich discussed larger sales of cocaine but defendant did not participate in this discussion. He had no idea where to obtain larger quantities. Defendant left with Jankovich. She gave him $100 for which he had not asked, although he admitted to asking for some cocaine.

On July 13, several calls were made between Jankovich and defendant. Jankovich had complained that the price was too high. The price negotiations had to be cleared through Saxe, whom defendant called. Jankovich went to defendant’s home that evening. Defendant directed her and another man whom she identified as her bodyguard to Saxe’s. A sale of 31z ounces occurred there. Siegel told Jankovich that he had already sold one-half ounce. Jankovich gave the money to Siegel who in turn gave the cocaine to her. Defendant also snorted cocaine at this time. Further discussions were held as to sales of larger quantities but defendant did not take part. After defendant and Jankovich left the apartment, Jankovich gave him $250 for which he had not asked.

From the foregoing the jury could well have found defendant, Saxe, Greenberg and Siegel were co-conspirators in a plan to sell and deliver more than 30 grams of cocaine on July 13. Defendant could have been reasonably deemed by the jury as one of the organizers of the transaction. He had established contact between Saxe, one of his sources, and Jankovich. He communicated the time and place of the sale to her. He discussed prices with her and asked to be paid in cocaine for his services. Furthermore, Siegel’s statement that he only had 3*2 rather than four ounces to sell because defendant had not called him by 2 p.m. indicates the reliance that was placed upon defendant to set up the transaction.

It is the function of a reviewing court to carefully examine the evidence in a criminal case giving due consideration to the fact that the court and jury saw and heard the witnesses. (People v. Jefferson (1962), 24 Ill. 2d 398, 182 N.E.2d 1; People v. Howard (1979), 74 Ill. App. 3d 870, 393 N.E.2d 1084.) Having reviewed this record, we conclude that defendant was proved guilty beyond a reasonable doubt of calculated criminal drug conspiracy for July 12-13.

We now consider whether the People proved defendant guilty beyond a reasonable doubt of calculated criminal drug conspiracy from July 19-23.

Jankovich testified that on the morning of July -19 she called defendant. He advised her that his people wanted to meet with her that evening at Saxe’s to discuss the upcoming transaction. She complained of the location but defendant said that it was too late to make other arrangements.

That evening Jankovich and Gomilla again went to defendant’s home. Gomilla and Jankovich then followed defendant in their car to Saxe’s. Jankovich discussed with Greenberg and Siegel the possibility of acquiring a kilo. They declined but said they could provide all of the pounds she wanted. Jankovich then stated she wanted the transaction to occur at her house. The parties agreed to discuss the location later.

Jankovich further related that Siegel threatened defendant whereupon the latter gave her Saxe’s number and advised her that she could contact Saxe regarding the upcoming transaction. Jankovich left shortly thereafter. Jankovich called Saxe on July 20, 21 and 22 to see if the pound of cocaine had been obtained. She did not call defendant on those dates. On July 23 she spoke with Saxe again and he informed her that they would be ready to transact the deal that evening. About 4:30 p.m. Jankovich called Saxe to learn the price. He said the price was set at $26,000.

At approximately 7:45 p.m. defendant called Jankovich and told her that the deal was set to go that evening at his house. Jankovich called Saxe to have the location changed. Saxe refused. Later Jankovich and Gomilla proceeded to defendant’s residence. Defendant told Greenberg and Saxe to show the package. Saxe then produced a grey paper bag. Gomilla tested a small quantity of the cocaine. Defendant then weighed the cocaine. Gomilla exited momentarily to retrieve the briefcase in which the money was kept. Upon his return he gave the money to Greenberg who along with Siegel counted it. Jankovich then took the cocaine and exited with Gomilla. Defendant’s testimony as to these events substantially corroborated that of Jankovich.

This evidence demonstrates that defendant’s participation in the events from July 19-23 was limited to directing Jankovich and Gomilla to Saxe’s apartment on one occasion, informing her of the location of the transaction, allowing his home to be used as the site of the transaction and weighing the cocaine. There is no evidence that defendant exercised sufficient influence over his co-conspirators to systematize their activities. (People v. Lucas (1975), 33 Ill. App. 3d 309, 337 N.E.2d 103.) To the contrary the evidence shows that from July 20-23 Jankovich contacted Saxe directly to determine the amount to be sold, its price, as well as the location of the transaction. If after carefully reviewing the evidence it is the opinion of the reviewing court that the evidence is not sufficient to establish defendant’s guilt beyond a reasonable doubt, the conviction must be reversed. (People v. Jefferson (1962), 24 Ill. 2d 398, 182 N.E.2d 1.) In light of the evidence set forth and the degree to which defendant participated in this transaction relative to the involvement of his co-conspirators (People v. Lucas), we do not believe that the evidence supported a finding beyond a reasonable doubt that defendant organized the conspiracy from July 19-23 with which he was charged, and we, therefore, reverse his conviction of that charge. However, this evidence is sufficient to support the jury’s verdict that defendant was guilty beyond a reasonable doubt of the July 19-23 simple conspiracy and the July 23 delivery. The trial court, because of a finding that the simple conspiracy and the delivery merged into the calculated criminal drug conspiracy, did not sentence defendant for that simple conspiracy or the delivery. Having reversed the July 19-23 calculated criminal drug conspiracy into which the simple conspiracy and the delivery “merged,” that merger now fails. Therefore, judgment and sentence should be entered on either the July 19-23 simple conspiracy charge or the July 23 delivery charge of which defendant was also found guilty. See People v. Zazzetti (1979), 69 Ill. App. 3d 588, 388 N.E.2d 82; Ill. Rev. Stat. 1979, ch. 38, par. 8 — 5.

Defendant would next have this court declare the Class X felony of calculated criminal drug conspiracy unconstitutional as applied to him on the facts of this case. Because this offense has been characterized by the legislature as a Class X felony (Ill. Rev. Stat. 1979, ch. 56½, par. 1405(a)), the trial court could not consider defendant for probation. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)(2)(C).) Defendant argues that as he was entrapped and only on the periphery of the criminal transaction, he would have made a good candidate for probation. Defendant reasons that by forbidding the judge from considering probation in his case, the Class X felony of calculated criminal drug conspiracy violated article I, section 11 of the Illinois Constitution which provides in pertinent part that:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Defendant’s argument is without merit, however, because it rests on a premise that the jury rejected — that defendant was entrapped and only peripherally involved in those crimes charged. These matters bore directly on the issue of defendant’s guilt or innocence and were for the jury to determine. As we have already concluded defendant was proved guilty beyond a reasonable doubt of calculated criminal drug conspiracy from July 12-13, conspiracy to deliver from July 19-23, and delivery on July 23, defendant’s argument must of necessity fail.

It is defendant’s final contention that certain remarks of the prosecutors during closing argument were improper resulting in prejudicial error. However, only one of the allegedly prejudicial comments was objected to during trial. Those not objected to were, therefore, waived. People v. Daniels (1979), 76 Ill. App. 3d 646, 395 N.E.2d 163.

The following prosecutorial remark was objected to at trial:

“But Mr. Simon tells you that on — a couple of days after June 16, he [Dane Roth] called me franticly [sic] and said, I have been busted. You got to help me.
Well, use your common sense, because the evidence that we have presented and his statements don’t support that that was ever said. What the evidence and his statement do support is that that is a lie.”

It is clear that a prosecutor in closing argument may argue that a witness’ testimony is false, if in so doing he relies on the evidence and the inferences from it to support his conclusion. (People v. Sinclair (1963), 27 Ill. 2d 505, 190 N.E.2d 298; People v. Hine (1980), 88 Ill. App. 3d 671, 410 N.E.2d 1017.) Each case, of course, must be decided on its own facts. People v. Daniels (1979), 76 Ill. App. 3d 646, 395 N.E.2d 163.

A review of the record indicates that sufficient evidence was presented of actions taken and statements made by the defendant which were inconsistent with knowledge that Jankovich was a police agent. Thus, the prosecutor’s statement was not without evidentiary support and hence was proper.

Based on the following, we reverse defendant’s conviction for calculated criminal drug conspiracy July 19-23; we affirm defendant’s conviction for calculated criminal drug conspiracy July 12-13; and we remand the convictions for the July 19-23 simple conspiracy and the July 23 delivery for sentencing consistent with this opinion and section 8 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 5).

Reversed in part; affirmed in part; remanded for sentence.

SULLIVAN, P. J., and LORENZ, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
    CLIFFORD MOCK, Plaintiff-Appellee, v. SEARS, ROEBUCK AND CO., Defendant-Appellant.
    First District (2nd Division)
    No. 80-2546
    Opinion filed October 20, 1981.
    Arnstein, Gluck & Lehr, of Chicago (Arthur L. Klein, Paul L. Leeds, and Robert W. Boos, of counsel), for appellant.
    Gorham, Metge, Bowman & Hourigan, of Chicago (Robert J. Hourigan and Edward H. MacCabe, of counsel), for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Clifford Mock brought an action to recover damages for personal injuries allegedly caused by the negligence of Sears, Roebuck and Company. Defendant Sears moved for a directed verdict at the conclusion of plaintiff’s case and again at the close of all the evidence. Both motions were denied, and the jury returned a $2,000 verdict for plaintiff. Defendant appeals, contending that the trial court applied the wrong standard of care (the jury was instructed on negligence rather than willful and wanton misconduct), and that plaintiff was contributorily negligent as a matter of law.

On March 31,1973, plaintiff and his son traveled to the Sears store in St. Charles, Illinois, to pick up kitchen cabinets that had been ordered earlier. Following the instructions of Sears personnel in the catalog department, plaintiff proceeded to drive to the customer pickup area located at the back of the building. A loading platform approximately 10 feet square and elevated about 4 inches from the ground is stationed immediately outside the double doors of the customer pickup entrance. On the west side of the platform, to the right when exiting the building through the double doors, is a steel ramp permanently affixed to the platform. On the south side of the platform, facing away from the double doors, is a steel ramp approximately 4 feet long and 8 feet wide. This 250-pound ramp is attached to the platform by steel hinges that allow the ramp to be moved from a down position (bridging the gap between the ground and the platform) to an up position (slightly off the perpendicular, leaning towards the building). Plaintiff testified that on the morning of March 31, a movable garbage dumpster was positioned just east of the loading platform. Sears’ assistant store manager William Huberty’s automobile was parked just west of the platform, next to the permanent ramp. The movable ramp was in the up position when plaintiff arrived at the pickup area.

After squeezing between Huberty’s car and one of the two poles located on either side of the platform, plaintiff and his son rang the bell outside the double doors. Huberty opened the doors and invited plaintiff and his son inside. After the cabinets were located, plaintiff asked Huberty to move his car so the cabinets could be carried out to the parking lot. Huberty, who was talking to a female employee, said his car did not have to be moved and that the truck ramp (the movable ramp) could be used. According to plaintiff, Huberty then returned to his conversation with the employee.

Huberty, who was no longer employed by Sears at the time of trial, testified that he told plaintiff that he (Huberty) would lower the ramp and load the cabinets into plaintiff’s car. Huberty further testified that, shortly thereafter, he noticed plaintiff’s son attempting to lower the ramp and that plaintiff told his son to cease such attempts. Huberty then observed plaintiff attempt to lower the ramp while standing on the platform. Fearing this would break the hinges, plaintiff repositioned himself in front of the ramp and attempted to lower it to the ground by pulling it toward himself. Plaintiff had earlier noticed lines in the pavement apparently made by the ramp when it was in the down position. He originally placed his feet behind the line in the pavement, but admitted he put his right foot over the line in order to get a better grip on the ramp. The ramp, which was wet from the rain earlier that morning, slipped from plaintiff’s hands and landed on his right foot. Plaintiff hobbled to his car and discovered that two toes on his right foot were severely injured.

Plaintiff’s theory is that Sears was negligent in creating a situation where plaintiff’s alternatives were to wait for Huberty to finish his conversation and lower the ramp or to lower the ramp himself. Plaintiff asserts that Huberty authorized him to lower the ramp himself, an assertion which Huberty denies. The case was submitted to the jury with instructions on negligence. The jury returned a $2000 verdict in favor of plaintiff.

Defendant’s first contention on appeal is that the trial court erroneously characterized plaintiff as an invitee, rather than a volunteer, and thereby applied a higher standard of care than was warranted. Specifically, defendant argues that the trial court should have directed a verdict for defendant or granted defendant’s motion for a judgment notwithstanding the verdict. Motions for directed verdicts and for judgments notwithstanding the verdict are to be assessed, both by the trial court and the reviewing court, under the standard set out in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. Such motions should be granted only when all the evidence, when viewed in a light most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick, at 510.) This is the standard to be applied here.

The owner or occupier of land owes to invitees present on that property the duty of exercising ordinary and reasonable care to see that the premises are reasonably safe. (Sepesy v. Fuller (1978), 59 Ill. App. 3d 56, 59, 375 N.E.2d 180.) An owner or occupier of land violates his duty to an invitee when he negligently allows conditions to exist on the property which imperil the safety of persons on that property. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 158, 125 N.E.2d 47.) On the other hand, with respect to a volunteer, owners or occupiers have a duty only to refrain from gross negligence, willfulness or wantonness. (See Augsburger v. Singer (1968), 103 Ill. App. 2d 12, 14-15, 242 N.E.2d 436.) Therefore, the designation of plaintiff as an invitee or as a volunteer will determine the nature of the duty which defendant owed to plaintiff. In the case at bar, plaintiff admits defendant was not guilty of willful and wanton misconduct. Therefore, since plaintiff prevailed, the trial court had to find that plaintiff was an invitee.

Generally, an invitee is someone who enters the premises of another, either at the express or implied invitation of the latter, for a purpose connected with the latter’s business or for some purpose serving a mutually beneficial interest. (Augsburger, at 15; see Sepesy, at 58.) “To be upon premises by an implied invitation means that the person is there present for a purpose connected with the business in which the owner of the premises is engaged, or which he permits to be carried on.” (Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347, 97 N.E.2d 290.) A volunteer is one who introduces himself into matters which do not concern him and who does or attempts to do something he is not bound to do. George S. Mepham & Co. v. Industrial Com. (1919), 289 Ill. 484, 489, 124 N.E. 540.

A review of the record reveals that the trial court was correct in finding that plaintiff was an invitee. Plaintiff went to defendant’s store to pick up merchandise he had ordered from defendant. Clearly plaintiff had an implied, if not an express, invitation to enter defendant’s premises for a purpose connected with defendant’s business. By purchasing and picking up the merchandise from defendant, plaintiff was serving both his and defendant’s beneficial interests. Additionally, we agree with the trial court that plaintiff did not change his status from an invitee to a volunteer by attempting to lower the ramp himself. See generally Pauckner v. Wakem (1907), 231 Ill. 276, 281, 83 N.E. 202 (holding that an invitation to go to a warehouse for merchandise must be held broad enough to extend to all space occupied by the merchandise, together with necessary passageways into and out of the warehouse).

Because plaintiff was defendant’s invitee, defendant owed to plaintiff a duty of reasonable care. The issue properly before the jury, which found for plaintiff, was whether defendant exercised reasonable care toward plaintiff. All the evidence, viewed in a light most favorable to plaintiff, does not so overwhelmingly show that no verdict for plaintiff could ever stand. The trial court therefore acted properly in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

Defendant’s other contention is that plaintiff should have been foreclosed from collecting any damages because he was contributorily negligent as a matter of law. In support of his position defendant cites plaintiff’s thorough inspection of the ramp, the placing of his right foot over the indentation line in the pavement, and his attempting to lower the plate without the assistance of defendant’s employee.

A party is guilty of contributory negligence if he fails to exercise ordinary care for his own safety and his negligence was the proximate cause of his injury. (Old Second National Bank v. Baumann (1980), 86 Ill. App. 3d 547, 549, 408 N.E.2d 224.) The standard used in determining whether contributory negligence exists as a matter of law is the same standard used in determining whether a directed verdict or judgment notwithstanding the verdict was proper, that is, the Pedrick standard cited above. (See Atchley v. Berlen (1980), 87 Ill. App. 3d 61, 63, 408 N.E.2d 1177.) Reviewing the record in the light most favorable to plaintiff, we do not find evidence of contributory negligence so overwhelmingly favorable to defendant that no verdict for plaintiff could ever stand. Plaintiff, as an invitee, was entitled to assume that defendant’s premises were reasonably safe. (See Geraghty, at 158.) The jury could reasonably have decided that plaintiff’s actions were taken as a precaution to lessen any risk present in attempting to lower the ramp and that plaintiff was not negligent.

Defendant argues that plaintiff was contributorily negligent in not waiting for Huberty to lower the ramp. It is not, however, decisive that a safer course of action was available or that the actions taken entailed certain hazards. The issue is whether the choice of the less safe course was unreasonable. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 567, 396 N.E.2d 1197.) The trial court properly submitted the issue to the jury, and we find no reason to overturn the jury’s verdict.

The judgment below is affirmed.

Affirmed.

HARTMAN, P. J., and PERLIN, J., concur.

       In Poulson v. Poulson (1954), 1 Ill. App. 2d 201, 117 N.E.2d 310, the court held that while the general rule is that volunteers act at their own risk, an exception exists where the alleged volunteer has an interest in the work being done. In such a case even a volunteer is entitled to be protected from the carelessness of the servant of the master. 1 Ill. App. 2d 201, 205.


author: Mr. JUSTICE JOHNSON Mr. PRESIDING JUSTICE ROMITI,

text:
    LESTER EDWIN HAPPEL, Plaintiff-Appellant, v. HARRIET M. MECKLENBURGER et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-1662
    Opinion filed October 8, 1981.

      ROMITI, P. J., dissenting.

      J. Daniel Azulay, of Azulay & Azulay, of Chicago, for appellant.
    Schiller & Du Canto, of Chicago (Donald C. Schiller and Pamela S. Trapp Goodemote, of counsel), for appellees.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from the grant of defendants’ motion for a directed finding based on plaintiff having failed to prove a prima facie case and overcome the presumption of legitimacy of a child born to a marriage. Plaintiff raises the following issues for review: (1) whether the trial court’s directed finding was contrary to the evidence; (2) whether the trial court erred in denying plaintiff’s motion that defendant James submit to a blood test; (3) whether the trial court erred in denying plaintiff’s motion for the parties to submit to the Human Leucocyte Antigen (HLA) test; and (4) whether the statutory scheme as represented by the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) denies to males the equal protection of the laws and interferes with plaintiff’s fundamental right to exercise fatherhood.

We affirm.

Defendant Harriet Mecklenburger was called under section 60 and testified that in the summer of 1972 defendants advertised for a babysitter on the bulletin board of Northwestern University. The service of babysitting 3 days per week for the Mecklenburgers’ 3-year-old adopted daughter would be exchanged for a rent-free room. Plaintiff responded to the advertisement and, a few weeks later in September 1972, moved into defendants’ Evanston residence. A friendship and subsequent love affair developed between plaintiff and defendant Harriet.

Harriet further testified that she and her husband were having difficulty conceiving a child. Both were undergoing treatment at the Northwestern University Fertility Institute. Harriet had ovulatory problems and James was diagnosed as having a low sperm count. On December 12, 13, and 14, 1972, Harriet underwent treatment at the Institute. She stated that on December 13, 1972, she was artificially inseminated with sperm of her husband and an anonymous donor. On December 12,1972, she had sexual intercourse with her husband. Plaintiff testified that on that same evening, while James was asleep, Harriet had sexual intercourse with him. On January 5, 1973, Harriet’s pregnancy test was positive. She was delivered of a male child on August 31, 1973. Harriet’s husband, James, was considered the father of the child.

The love affair between plaintiff and Harriet continued intermittently during the pregnancy. However, in March 1973, plaintiff moved out to share an apartment with a woman he had begun to date. Plaintiff testified that Harriet would visit while the other woman was at work, or occasionally he would visit Harriet. After the birth of the child, Harriet took him on her visits to plaintiff.

Plaintiff and several witnesses testified that Harriet frequently made references to the events leading up to her pregnancy. According to the witnesses, Harriet stated that Jim, her husband, Ed (the plaintiff), or the donor could be the father. Plaintiff offered many love letters and cards he had received from Harriet which contained references to their relationship and references to the possibility that plaintiff might be the child’s father. After the birth of the child, though plaintiff and Harriet continued their affair on an infrequent basis, the record reflects that each engaged in affairs with others. Plaintiff saw the child on visits and occasionally purchased gifts for him. But, it was established that the gifts, consisting of a gold birth ring, a rattle and a toy car, were no more significant than those that plaintiff gave to the children of friends.

In 1976, plaintiff traveled extensively in Europe, Africa and the Middle East, returning to the United States in 1977. Most of the letters and cards offered into evidence were written by Harriet to plaintiff during this period. Also, during the 1976-77 period, the Mecklenburgers separated. Their marriage was dissolved by a District of Columbia court in December 1977. James was adjudicated the father of the two children born or adopted during the marriage. He has provided for their support. When plaintiff returned to the United States in January 1977, he needed a place to live. Harriet allowed plaintiff to move in with her. Plaintiff cared for the male child 3 days per week while Harriet worked. Harriet’s young daughter was attending school during the day. In April 1977, after a quarrel, Harriet asked plaintiff to leave her home.

On November 28, 1978, plaintiff filed his action seeking declaration that he is the father of the child, a grant of visitation rights, and an order preventing Harriet from removing the child from Cook County or secreting the child from plaintiff. A guardian ad litem was appointed for the child. The guardian attempted to restrain plaintiff from discussing the case with the press. In June 1979, the plaintiff, defendant Harriet, and the child underwent blood tests at Evanston Hospital. The results did not exclude plaintiff as the father of the child. In September 1979,' plaintiff petitioned for additional blood tests, specifically the Human Leucocyte Antigen Test (HLA). This request was denied. After filing motions and memoranda of law, plaintiff obtained leave to join defendant James as a party defendant on November 29, 1979. Hearings began in March 1980.

Harriet was called under section 60. Plaintiff’s exhibits consisting of love letters and cards sent by Harriet to plaintiff were offered into evidence. Harriet denied that she ever said plaintiff was the father of her son. Plaintiff testified and on cross admitted that he had not supported or offered to support the child. Friends of the plaintiff testified as to conversations they had with Harriet during the years of the affair. Each stated that Harriet had said it was possible that plaintiff was the father, but no one testified that Harriet said plaintiff was the father. On cross, these friends were shown to have a particular bias about the litigation and the parties — each, at one time, had been a lover of one of the parties to this litigation.

At the close of plaintiff’s case in chief, the defendants moved for a directed finding on the grounds that plaintiff had failed to overcome the presumption of legitimacy of a child born into a marriage. In granting the motion, the trial court stated that plaintiff had failed to show either the impossibility of James’ access to Harriet, James’ sterility, or James’ total lack of power of procreation. Under the law of Illinois, James, not plaintiff, is deemed to be the child’s father. Plaintiff appeals.

Plaintiff contends the trial court’s directed finding in favor of defendants was contrary to the evidence. We do not agree. Our. courts have held that in nonjury cases in ruling on a section 64(3) motion (Ill. Rev. Stat. 1979, ch. 110, par. 64(3)), the court must apply a two-step analysis. (Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 68, 415 N.E.2d 668, 676.) Firstly, the trial judge must determine, as a matter of law, whether the plaintiff has made out a prima facie case. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43, 45.) The plaintiff must have presented some evidence, more than a scintilla, on every essential element of his cause of action. (Chicago Title & Trust Co., at 68.) If he has not, the court should, without more, grant the motion and enter judgment in the defendant’s favor. Kokinis, at 155.

Secondly, if plaintiff has made out a prima facie case, the trial judge, in the role of finder of fact, must weigh the evidence. (Kokinis, at 155.) The court must consider all of the evidence, including any favorable to the defendant, and must pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence. Kokinis, at 154. Accord, City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 57, 349 N.E.2d 399, 408; Jackson v. Navik (1976), 37 Ill. App. 3d 88, 90, 346 N.E.2d 116, 120.

This weighing process may result in the negation of some of the evidence necessary to the plaintiff’s prima facie case, in which event the court should grant the defendant’s motion and enter judgment in his favor. (Kokinis, at 155.) If, however, after the weighing process, there is sufficient evidence to establish that plaintiff’s prima facie case remains, the court should deny the defendant’s motion and proceed as if the motion had not been made. (Kokinis, at 155.) On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis, at 154.

Plaintiff attempted to establish his paternity of a child born August 31, 1973 to the Mecklenburgers. To do this, plaintiff had the burden of proof of overcoming the presumption of legitimacy. The presumption is that a child born to a married woman is legitimate. People ex rel. Adams v. Mitchell (1980), 89 Ill. App. 3d 1023, 1028, 412 N.E.2d 678, 682; In re Ozment (1978), 61 Ill. App. 3d 1044, 1047, 378 N.E.2d 409, 412; People ex rel. Smith v. Cobb (1975), 33 Ill. App. 3d 68, 70, 337 N.E.2d 313, 315; People ex rel. Jones v. Schmitt (1968), 101 Ill. App. 2d 183, 186, 242 N.E.2d 275, 276; People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App. 2d 1, 7, 192 N.E.2d 691, 693; People v. Powers (1950), 340 Ill. App. 201, 204, 91 N.E.2d 637, 638.

The presumption, however, is not conclusive; it may be rebutted by clear and convincing evidence. (People ex rel. Smith, at 70.) The court in Orthwein v. Thomas (1889), 127 Ill. 554, 21 N.E. 430, described the quantum of evidence as clear and irrefragable. Our courts have held that this proof must conclusively show that the husband had no power of procreation or that the circumstances were such as to render it impossible that the husband could be the father of the child. People ex rel. Hood v. Gleason (1918), 211 Ill. App. 380, 383.

What the courts have found as clear and convincing evidence to overcome the presumption has been testimony that the mother did not know nor was she married to her husband at the time of conception. (People ex rel. Hood v. Gleason.) The mother and her husband had not lived together for many years prior to the birth of the child. People ex rel. Smith v. Cobb (1975), 33 Ill. App. 3d 68, 337 N.E.2d 313; Robinson v. Ruprecht (1901), 191 Ill. 424, 61 N.E. 631.

Where the wife and husband both testify that they did not cohabit, the courts have found this evidence sufficient to overcome the presumption. (People ex rel. Jones v. Schmitt (1968), 101 Ill. App. 2d 183, 242 N.E.2d 275; In re Ozment (1978), 61 Ill. App. 3d 1044, 378 N.E.2d 409.) Significantly, in Jones and Ozment, the putative father had assumed the responsibilities of fatherhood from the onset of pregnancy. Thus, acts by the putative father corroborated the evidence of the wife and husband. The courts require corroborating evidence of inaccessibility. (In re Ozment.) A husband, alone, may not challenge legitimacy (People v. Powers (1950), 340 Ill. App. 201, 91 N.E.2d 637; People v. Askew (1979), 74 Ill. App. 3d 743, 393 N.E.2d 1124), nor may a mother when she has continued to live and cohabit with her husband. People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App. 2d 1, 192 N.E.2d 691.

Plaintiff testified that he had intercourse with defendant on December 12,1972. Defendant denied having intercourse with plaintiff on that date. However, various admissions of defendant in letters to plaintiff and statements that she made to her friends would indicate that she had engaged in intercourse with the plaintiff during the period in question. Plaintiff testified that defendant told him that she had intercourse with her husband on the same evening. Defendant also testified that she cohabited with her husband. Defendant and her doctor testified that she was artificially inseminated with the sperm of her husband and an anonymous donor on December 13,1972. Further, the evidence was that James was diagnosed as having a low sperm count. But, a low sperm count, as the doctor testified, is not indicative of sterility or an inability to procreate.

Thus, the plaintiff failed to offer clear and convincing proof of inability of the husband to procreate or inaccessibility to overcome the presumption of legitimacy. As this was necessary to plaintiff’s prima facie case, the trial court did not err in entering judgment for the defendant.

After plaintiff had rested his case, and after defendant had filed a motion for a directed finding, plaintiff moved that James be required to submit to a blood test for the purpose of excluding him as the child’s father. The ordering of a blood test is a matter of discovery regulated by Supreme Court Rule 215 (Ill. Rev. Stat. 1979, ch. 110A, par. 215). (Zavaleta v. Zavaleta (1976), 43 Ill. App. 3d 1017, 1020, 358 N.E.2d 13,15.) A trial court has broad discretion to order a party to submit to a blood test. (People ex rel. Coleman v. Ely (1979), 71 Ill. App. 3d 701, 704, 390 N.E.2d 140, 142.) The rules require a showing of good cause (People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 224, 391, N.E.2d 164, 168), and that the motion be made within a reasonable time before trial. (Supreme Court Rule 215.) Because we think that plaintiff’s motion was not timely made, and that the trial court did not err in denying the motion, we need not reach the question of whether plaintiff had standing to order a blood test of the lawful father.

Plaintiff filed a motion requesting that the court order Harriet, the child, and plaintiff to submit to Human Leucocyte Antigen (HLA) tests. Plaintiff also requested that the results of the tests be admitted into evidence to establish his paternity. The motion was denied. Throughout the proceedings, plaintiff renewed his request for the HLA tests, citing recent decisions from other jurisdictions of the highly probative value of the tests. See Cramer v. Morrison (1979), 88 Cal. App. 3d 873, 153 Cal. Rptr. 865; County of Fresno v. Superior Court of Fresno County (1979), 92 Cal. App. 3d 133, 154 Cal. Rptr. 660; Malvasi v. Malvasi (1979), 167 N.J. Super. 513, 401 A.2d 279.

The Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1977, ch. 40, par. 1401 et seq.) provided that the court may order the mother, child and alleged father to submit to blood tests. (See People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 391 N.E.2d 164.) However, the results were not admissible unless definite exclusion was established. Ill. Rev. Stat. 1977, ch. 40, par. 1401; De Vos, at 223.

Plaintiff, Harriet, and the child submitted to blood tests at Evanston Hospital in June 1979. The results of the test did not exclude plaintiff as the father. We have held that even assuming that under the blood test act defendant could not be compelled to submit to a second test, the discovery provisions of Supreme Court Rule 215 would still be available to plaintiff. (People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 456, 392 N.E.2d 606, 607.) However, the provisions of Rule 215 are not mandatory, but vest broad discretion in the trial court to determine whether a physical examination should be ordered. (See People ex rel. Coleman v. Ely (1979), 71 Ill. App. 3d 701, 390 N.E.2d 140.) The request for a second test must be timely and show good cause. (See People ex rel. De Vos v. Laurin.) Thus, a court could properly determine that a second blood test was not warranted. De Vos, at 224.

In September 1980, after this case was decided, the legislature passed an act (Pub. Act. 81-1445) amending sections 1, 2, and 4 of the Act on Blood Tests to Determine Paternity. The amendment provides that the court may order the mother, child, and alleged father to submit to blood tests including the Human Leucocyte Antigen Tests. The amendment provides that the results shall be receivable in evidence. (Ill. Rev. Stat., 1980 Supp., ch. 40, par. 1401.) However, section 4(b) provides that the results of blood tests alone shall not be sufficient grounds for determining that the man is the father of the child. Ill. Rev. Stat., 1980 Supp., ch. 40, par. 1404(b).

Plaintiff contends, in the alternative, that the blood test act does not apply in our case. The trial court had power to order any other medical tests for discovery purposes under Supreme Court Rule 215. Plaintiff claims that denial of the motion was an abuse of discretion and reversible error.

Because we have held that application of Supreme Court Rule 215 is discretionary (People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 456, 392 N.E.2d 606, 608), the decision of the trial court will not be reversed absent an abuse of discretion. (Jackson v. Whittinghill (1963), 39 Ill. App. 2d 315, 188 N.E.2d 337.) Where, as here, the results of the additional tests would not be admissible, unless definite exclusion was established, under the law in effect at the time of the proceeding, and under the law now in effect the results of the additional test would be one factor and not the sole conclusory determination establishing paternity, we hold that the denial of the HLA test was not reversible error, as it would not have changed the outcome of the case.

Plaintiff contends that the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) denies equal protection of the laws to males because it provides no way for them to establish their paternity.

A paternity action is essentially a civil action to compel the putative father to support his child. (People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 456, 392 N.E.2d 606, 607.) Though the statute (Ill. Rev. Stat. 1979, ch. 40, par. 1354) provides that actions for support, maintenance, education and welfare may be instituted by the mother or by the Illinois Department of Public Aid on behalf of the minor child, a father has not been barred by the Act from having his paternity established when he has overcome the presumption of legitimacy. (See In re Ozment (1978), 61 Ill. App. 3d 1044, 378 N.E.2d 409.) In Ozment, the putative father had custody of the child and had cared for the child since its birth. The putative father offered testimony of the mother and the presumptive father showing lack of access by the presumptive father. Thus, the court held that the putative father had presented sufficient proof to overcome the presumption of legitimacy. Though the language of the Act grants a cause of action to the mother and child, our decisions since People ex rel. Slawek v. Covenant Childrens Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291, have recognized the rights of a biological father to seek custody of an illegitimate child.

In Illinois Housing Development Authority v. Van Meter, Jr. (1980), 82 Ill. 2d 116, 119-20, 412 N.E.2d 151, 152-53, the court stated:

“The * * 0 test in assessing an equal protection claim is to determine if the [statute] * * * operates to the disadvantage of a suspect class or infringes upon a fundamental right. (San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288.) If the legislation in question creates a ‘suspect classification,’ such as race (Loving v. Virginia (1967), 388 U.S. 1, 11, 18 L. Ed. 2d 1010, 1017,87 S. Ct. 1817, 1823), alienage (Graham v. Richardson (1971), 403 U.S. 365, 371-72, 29 L. Ed. 2d 534,541-42,91 S. Ct. 1848, 1851-52), national origin (Oyama v. California (1948), 332 U.S. 633, 646, 92 L. Ed. 249, 259, 68 S. Ct. 269, 275), or infringes upon a fundamental right, such as the right to travel (Shapiro v. Thompson (1964), 394 U.S. 618, 634-35, 22 L. Ed. 2d 600, 615, 89 S. Ct. 1322, 1331-32), the right to vote (Harper v. Virginia State Board of Elections (1966), 383 U.S. 663, 670, 16 L. Ed. 2d 169, 174, 86 S. Ct. 1079, 1083), or the right to fair treatment in the criminal process (Douglas v. California (1963), 372 U.S. 353, 355-56, 9 L. Ed. 2d 811, 813-14, 83 S. Ct. 814, 815-16), then the statute must promote a compelling or overriding State interest. If a suspect classification or fundamental right is not found, the legislation simply must bear a rational relationship to a legitimate governmental interest. Dandridge v. Williams (1970), 397 U.S. 471, 485-87, 25 L. Ed. 2d 491, 501-03, 90 S. Ct. 1153, 1161-62.”

Plaintiff contends the Paternity Act makes classification by gender and, thus, must serve an important governmental objective to meet the test of equal protection. However, we have found no cases which hold that a declaration of paternity is a fundamental right or that a class of illegitimate fathers is a suspect class. Since Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, we have held that where statutes make unreasonable distinctions between parents of illegitimates and parents of legitimates, the statutes violate equal protection. In People ex rel. Slawek v. Covenant Childrens Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291, the court held that insofar as provisions of the adoption and paternity acts conflict with Stanley, the provisions were unconstitutional.

Thus, the proper test in this case is whether the legislation bears a rational relationship to a legitimate governmental interest. When a rational basis test is used, a legislative classification is presumed valid. (Illinois Housing Development Authority v. Van Meter, Jr. (1980), 82 Ill. 2d 116, 122, 412 N.E.2d 151, 154.) The burden of rebutting the presumptive validity of the classification rests upon the party challenging its constitutionality. (Illinois Housing Development Authority, at 122.) A statutory classification will not be declared unconstitutional “if any state of facts reasonably may be conceived to justify it.” Illinois Housing Development Authority, at 122.

The purpose of a paternity proceeding under the Act is to determine the identity of the putative father, provide support for the illegitimate child, and prevent the child from becoming a public charge. (People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 1105, 401 N.E.2d 1177, 1181.) Plaintiff admits that this is a permissible State objective. But, plaintiff claims that to bar his assertion of paternity under the Act bears no rational relationship to the State’s objective because any male asserting paternity would be obliged to support the child. As we have shown in In re Ozment (1978), 61 Ill. App. 3d 1044, 378 N.E.2d 409, the Paternity Act was not a bar to a putative father asserting his claim of paternity. A statute is not unconstitutional because it affects one class and not another, provided that it affects all members of the same class alike and provided that there is a reasonable basis for differentiating between the class to which the statute is applicable and the class to which it is not. In re Marriage of Galvin (1981), 94 Ill. App. 3d 1032, 1035, 419 N.E.2d 417, 419, citing Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 290 N.E.2d 589; Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 281 N.E.2d 317.

The objective of the Paternity Act is support for the minor child. And the Act provides a mechanism whereby the father of an illegitimate child may be required to fulfill the same child support obligation as a married father. If the child is being supported by a legal father who has assumed the parenting responsibility of daily supervision, education, protection and care of the child (responsibilities listed in Quilloin v. Walcott (1978), 434 U.S. 246, 256, 54 L. Ed. 2d 511, 520, 98 S. Ct. 549, 555), then the provisions of the Paternity Act would not apply. The Quilloin court stated that in certain circumstances the State could recognize the difference in the extent of commitment to the welfare of the child and treat the illegitimate father differently than the State would treat a separated or divorced father. Such difference in treatment is not a violation of equal protection principles. It is our view that the legislation is not unreasonable in the light of the legislative objective and that it was within the province of legislative power. Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576, 376 N.E.2d 1382, 1389.

Finally, we turn to plaintiff’s contention that the statutory scheme interferes with his right to exercise his paternity and thus violates his right of due process. The cases hold that freedom of personal choice in matters of family life is one of the liberties protected by the due process clause of the fourteenth amendment to the United States Constitution. (Quilloin v. Walcott (1978), 434 U.S. 246, 255, 54 L. Ed. 2d 511, 519, 98 S. Ct. 549, 555.) But, where one’s assertion of the rights of paternity conflict with the countervailing interests of an existing family unit, the courts must balance the interests of the putative father, the child, the parents, and the State. The Quilloin court applied the standard of “best interests of the child.”

In In re Petition of Negron (1975), 33 Ill. App. 3d 112, 337 N.E.2d 375, the court faced a putative father who sought to disrupt a settled family structure. The Negron court stated that the policy of preserving and protecting an established family unit underlies Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, and People ex rel. Slawek v. Covenant Childrens Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291. In Illinois, the paramount concern in matters dealing with child custody must always be the welfare of the child. (Negron, at 117.) Illinois focuses on the need for emotional support, continuity and stability in a familial setting.

In our case, though the parents are divorced, a family unit remains. The mother has custody of the child. The child visits his father on vacations, and the father visits him when he comes to the area on business. The father has continued to shoulder the parental responsibility of the child who is now 8 years old.

Contrastingly, the plaintiff has never shouldered any responsibility for the child. (We do not equate babysitting in exchange for a free room an assumption of parental responsibility.) In this action, plaintiff seeks a declaration of his paternity and a right of visitation. These rights are correlative to, and can only be asserted with, the assumption of parental responsibilities. Thus, it is in the best interests of the child that the existing family unit remain unencumbered by challenges to his legitimacy. Plaintiff’s rights under the due process clause of the fourteenth amendment must be balanced against the countervailing interests of the family unit and the child.

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

Judgment affirmed.

LINN, J., concurs.

Mr. PRESIDING JUSTICE ROMITI,

dissenting:

Because I believe that the trial court barred plaintiff’s request for Human Leucocyte Antigen (HLA) tests solely because it erroneously believed it had no discretion to allow such tests, I would reverse and remand.

Well before trial plaintiff petitioned the court to allow HLA testing. The court denied this request but subsequently indicated it would reconsider if plaintiff produced expert testimony establishing that the test was “foolproof.” However, at trial plaintiff was barred from presenting the testimony of Dr. Chang Ling Lee, identified as an expert on paternity testing, concerning the reliability and viability of HLA testing. Indeed, the court even barred plaintiff from making an offer of proof as to Dr. Lee’s testimony. The court stated that although it would like to hear this testimony, it believed that the Act on Blood Tests to Determine Paternity (the Act) (Ill. Rev. Stat. 1979, ch. 40, pars. 1401-1407) barred the use of such evidence to affirmatively establish paternity. At the time section 1 of the Act provided:

“In a civil action, in which paternity is a relevant fact, the court, upon its own initiative, or upon motion of any party to the action, may order the mother, child and alleged father to submit to blood tests to determine whether or not the defendant shall be excluded as being the father of the child. The results of the tests shall be receivable in evidence only if definite exclusion is established. If the defendant refuses to submit to such tests, such fact shall not be disclosed upon the trial.” (Ill. Rev. Stat. 1979, ch. 40, par. 1401.)

It is clear from the record that the trial court believed that this provision applied to HLA testing. I believe the court erred in this conclusion. In Cramer v. Morrison (1979), 88 Cal. App. 3d 873, 153 Cal. Rptr. 865, the court determined that its Uniform Act on Blood Tests to Determine Paternity (Cal. Evid. Code §§890-897 (1966)), which, like ours, was drawn from the Model Act on Blood Tests to Determine Paternity (see 9A Uniform Laws Annotated 623, 624 (1979)), was not applicable to HLA tests. The court noted that when the California statute was adopted in 1953 the Landsteiner series of red cell blood grouping tests were in use, having been endorsed the year before by the American Medical Association as sufficiently accepted within the scientific community to be legally valid. Indeed, the court noted that as late as 1975 the Landsteiner tests were still the standard tests for non-paternity (citing Lee, Current Status of Paternity Testing, 9 Earn. L. Q. 615 (1975)), and the HLA test, which involves tissue typing of the white blood cells, was not yet in use for paternity testing in California. This reasoning is equally applicable to our Act, which was adopted only four years after that of California. Our legislature cannot be said to have contemplated barring use of evidence obtained by scientific techniques not then known to it. I would hold that the Act, as it existed at the time of trial, was not applicable to HLA testing and thus did not bar the use of the results of such tests as affirmative evidence of paternity. See J.H. v. M.H. (1980), 177 N.J. Super. 436, 426 A.2d 1073; Phillips v. Jackson (1980),_Utah_, 615 P.2d 1228; contra J.B. v. A.F. (1979), 92 Wis. 2d 696, 285 N.W.2d 880.

The majority in its opinion appears to concede that if the Act did not apply then the trial court possessed the discretion to order HLA testing under Supreme Court Rule 215 (Ill. Rev. Stat. 1979, ch. 110A, par. 215). This rule gives the court the authority to order the physical examination of a party (or a person in the custody or legal control of a party) where the physical condition of that individual is in controversy. The examination may be ordered prior to trial or even during trial. Here the physical condition at issue was the blood relationship of the plaintiff to the child of defendant H.M. But, contrary to the apparent holding of the majority, I believe it to be clear that the trial court, because of its construction of the Act, never exercised its discretion to determine whether the tests should be ordered.

The majority concludes, on the basis of the evidence plaintiff was allowed to present, that he failed to rebut the presumption of legitimacy accorded the child. But this begs the question. Where the HLA test does not exclude an individual as the father of a child, the probability of that person being the father will usually be over 90 percent. (Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Fam. L. 543 (1977-78).) In some instances the probability can be determined to be higher than 99 percent. (Terasaki, at 551.) At the time of trial the Act provided that blood test results could be utilized to rebut the presumption of legitimacy accorded a child during wedlock. (Ill. Rev. Stat. 1979, ch. 40, par. 1405; People v. Askew (1979), 74 Ill. App. 3d 743, 393 N.E.2d 1124.) Although I believe that the Act was not drafted in contemplation of HLA testing, the principle established by this provision, that scientific evidence disproving the paternity of a husband will suffice to rebut the presumption of legitimacy, applies equally to the use of HLA test results. Indeed, the Act as amended in 1980 retains this provision without alteration so that the “tests” to which it refers include, by reference to the amended provisions, the HLA tests. From this analysis it seems clear that an erroneous statutory construction by the trial court prevented plaintiff from obtaining evidence which could have rebutted the presumption of legitimacy invoked by the court to support its judgment for defendants. Accordingly I believe the judgment should be reversed and the cause remanded for a new trial. The newly amended Act would be applicable to that proceeding and would provide a proper framework for consideration of any renewed request by plaintiff for HLA testing.

I would also note that I find no basis for this court to consider plaintiff’s constitutional attack on the Paternity Act. (Ill. Rev. Stat. 1979, ch. 40, pars. 1351-1368.) Plaintiff’s constitutional arguments are based on the premise that the trial court construed that act so as to deny him the right to bring this action. But in fact plaintiff did not claim to be bringing this action by authority of the Paternity Act. More importantly, he was afforded a trial on the merits; he was not barred from bringing this action. For these reasons I believe the majority’s discussion of these issues can only be considered dictum.

       Plaintiff relies on Doornbos v. Doornbos (1954), 12 Ill. App. 2d 473, 139 N.E.2d 844, where a trial court ruled, that a child conceived through artificial insemination was not a child bom in wedlock. This issue was not before the appellate court,, however, and consequently has not been ruled on by an Illinois appellate court. The case has been strongly criticized by medical and legal commentators. (See Shaman, Legal Aspects of Artificial Insemination, 18 J. Earn. L: 331 (1979-80).) In Levisohn, Dilemma in Parenthood: Socio-legal Aspects of Human Artificial Insemination, 36 Chi.-Kent L. Rev. 1, 26 (1959), the author stated that “in cases where the husband’s semen has been mixed with that of a donor, there could be no possibility whatever of proof that the husband was not the biological father.”

       In Cramer, Fresno and Malvasi, the HLA tests were the only means of establishing paternity in cases that were factually distinguishable from this case. See also Jaffee, Comment on the Judicial Use of HLA Paternity Test Results and Other Statistical Evidence: A Response to Terasaki, 17 J. Fam. L. 457 (1978-79).

       See Annot., “Who May Dispute Presumption of Legitimacy of Child Conceived or Born During Wedlock,” 90 A.L.R. 3d 1032 (1979).

        Johannesen v. Pfeiffer (Me. 1978), 387 A.2d 1113 (putative father had right to seek declaration of paternity to protect any rights he may have under the inheritance laws or the laws relating to adoption of illegitimates).

        A. B. v. C. D. (1971), 150 Ind. App. 535, 277 N.E.2d 599 (putative father’s expectancy as an heir apparent was sufficient interest to maintain an action to have his paternity judicially declared).

        In re R. (1975), 13 Cal. 3d 636, 532 P.2d 123, 119 Cal. Rptr. 475 (interests of putative father outweighed interests of the State where evidence was that child was born while mother lived with putative father, and putative father’s name was carried on birth records as father of child).