APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
545 N.E.2d 1363, 190 Ill. App. 3d 92, 137 Ill. Dec. 348 1989.IL.1615
Appeal from the Circuit Court of Peoria County; the Hon. William Voelker, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, P.J., and STOUDER, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
This is an appeal from the final judgment of the circuit court of Peoria County pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301.) Defendants-appellants appeal from the circuit court orders of July 1, 1988, September 6, 1988, October 17, 1988, November 7, 1988, November 9, 1988, November 10, 1988, and December 7, 1988, wherein the court essentially reversed the decision of the Board of Fire and Police Commissioners of the City of Peoria (the Board) on three of four charges finding plaintiffs-appellees had violated certain sections of the Manual of Rules of the Peoria Fire Department (the Manual) and also reversed the Board's order discharging plaintiffs based on their violation of charge 4. Plaintiffs and cross-appellants appeal from the circuit court's order of July 1, 1988, affirming the Board's finding against plaintiffs on a fourth charge.
Plaintiffs, Melvin Blunier (Blunier) and Robert Ochs (Ochs), are each firemen with the City of Peoria and were assigned to duty at the Heart of Illinois Fair, Peoria, Illinois, during the early morning hours of July 13, 1986. Each plaintiff was charged with four violations of the Manual arising from an incident that allegedly took place at the Heart of Illinois Fair on July 13, 1986. The charges for each plaintiff were essentially the same and stated:
"1. That on the 13th day of July, 1986, the said [plaintiff] did while in uniform and assigned to fire fighting duties at Exposition Gardens, 1601 W. Northmor Road, Peoria County, Illinois, did commit an act of sexual penetration with Tammie Lacks which was against her will and without her consent, which is conduct unbecoming an employee which might be detrimental to the service in violation of Section 2000.28of the Manual of Rules of the Peoria Fire Department.
2. On July 13, 1986, the said [plaintiff] did while in uniform and while assigned to fire fighting duties at Exposition Gardens, 1601 W. Northmor Road, Peoria County, Illinois engage in conduct involving moral turpitude so as to be detrimental to your performance and effectiveness in the Department in that he did commit an act of sexual penetration with Tammie Lacks which was against her will and without her consent, in violation of Section 2000.28of the manual of Rules of the Peoria Fire Department.
3. On July 13, 1986, the said [plaintiff] was neglectful of his assigned duty in that he did engage in sexual relations with Tammie Lacks while in uniform and assigned to fire fighting duties at Exposition Gardens, 1601 W. Northmor Road, Peoria County, Illinois in violation of Section 2000.28of the Manual of Rules of the Peoria Fire Department.
4. That on the 13th day of December, 1986, the said [plaintiff] did disobey and fail to comply with Departmental Orders, in that he did repeatedly fail to answer the questions of Donald R. Sorensen of Sorensen Investigative Agency, Inc., concerning the incident which was the basis of the pending charges filed against [plaintiff] dated December 13, 1986, although ordered by his superior officer, Assistant Fire Chief Robert Frye, to so answer the questions, in violation of Section 2000.28of the Manual of Rules of the Peoria Fire Department."
The first issue is whether the circuit court erred in reversing the Board's findings against both Ochs and Blunier as to charges 1, 2 and 3. A summary of the facts regarding the first three charges follows.
Tammie Lacks (Tammie), the complaining witness, testified at the Board hearing that she arrived at the Heart of Illinois Fair in midafternoon on July 12, 1986. She went to the fair with her husband, Bill, who then went to work at the fair for the Crystal Ice Company about 4 p.m. After Bill went to work, Tammie testified that she walked around with a friend until evening and then met some people who worked at the fair and spent the rest of the time getting cigarettes, sandwiches and coffee for the individuals running the carnival rides. Bill got off work at 10 to 10:30 p.m., at which time he and Tammie talked to an individual working for the carnival who invited them to stay after the fair closed for a party. Tammie and Bill stayed for the party, and while there, Tammie sat around and talked and related she did not have any alcoholic beverage. After a while Bill brought his car over by the party so they could listen to music. Tammie then walked to a brick rest room facility and came back to the party and sat in a truck with her purse beside her. When she later got up to change the tape in the car she noticed her purse was gone. She stated that her purse contained her Mysoline, which she takes to control seizures, and about $50. She then went back to the rest rooms to see if she had left the purse there but did not find it. While standing outside of the rest rooms, two men walked by and Tammie asked them if they had seen her purse. They responded they had not but that they were firemen and had a phone where they were working so she could report it. Tammie further stated she wanted to go get her husband, but the shorter fireman said he would get her husband for her. They then proceeded to a building where the tall fireman made a call. Tammie described the building as containing a table and some chairs, two phones and a pickup truck. The shorter fireman left to supposedly get her husband. Both firemen were described by Tammie as dressed in normal blue jeans, like her, with the tall fireman wearing glasses. It is generally undisputed throughout that the building being referred to by Tammie is known as the "labor building."
Tammie related that after the shorter fireman left, the tall fireman was "real nice and he offered me a beer and I said no and he told me to go ahead and sit on the back of the gate of the truck and so I did." The shorter fireman came back and closed the front door and said her husband would be coming shortly. Tammie testified that the two firemen were talking in riddles and were drunk, with the tall fireman sitting beside her and the shorter fireman standing next to her. Tammie then stated she had to go to the rest room, and the tall fireman said he also had to use the rest room and went over to a beam holding up the rafters and told Tammie to come over with him. She said no, but the shorter fireman grabbed her arm and took her over to the pole "[k]ind of with force but not too forceful." The tall fireman then pulled his zipper down, exposed his penis and asked Tammie to hold it. She stated that each time he tried to pull her hand to his penis she pulled her hand away. After the tall fireman urinated, he attempted to force Tammie's head to his penis and she kept pulling away stating she had to go to the rest room. The shorter fireman was still holding her arm during this time. The tall fireman then told her there was a portable rest room outside the building and walked her to it. The shorter fireman stayed behind in the building to supposedly wait for Tammie's husband to arrive.
Tammie testified she went into and used the portable rest room and while she was pulling up her pants the tall fireman opened the door and pushed her back onto the stool. He then started mumbling words and got onto his knees and fondled her vagina with his fingers. He then put his penis in her vagina and ejaculated. She testified he next forced her to perform fellatio until he again ejaculated. The tall fireman then "mumbled something about it felt good and then he just kind of laid over and passed out." Tammie stated she then wiped her mouth on the sleeve of her jacket, left the portable rest room and "ran the wrong way" and went back to the labor building, where the shorter fireman was waiting, because she thought he would help her. The shorter fireman then stated that they had better go get the tall fireman and asked Tammie to help bring him back, so they walked over to the portable rest room and helped the tall fireman back to the building because "she loves people." The shorter fireman and Tammie then sat and talked for awhile after they got back to the labor building. The shorter fireman then grabbed her by the arm and forcefully walked her over to a corner and pushed her down on something that felt like a lawn chair. He then forcefully took her pants down and inserted his fingers into her vagina. Tammie testified she was menstruating at this time. The shorter fireman then wiped his finger off and inserted his penis into her vagina. She kept pleading with him to quit and he eventually complied. Tammie then got up and asked if she could please leave, and he said she could if she promised to come back and see him later. She promised she would be back in order to leave.
Tammie testified she ran trying to find a security guard or her husband and finally found her husband, who took her to the front office. She there talked to security personnel and policemen prior to going to the hospital. Tammie identified the tall fireman as wearing glasses and going by the name Mick. It is undisputed that Melvin Blunier goes by the name Mick.
On cross-examination, Tammie was questioned whether she had talked about this incident with certain individuals at a boarding house where she lived for a time. Tammie also indicated on cross-examination that she arrived at the party about 11:30 p.m.; that she had no beer while at the party or through the course of the evening nor did she tell anyone she did; that she met the two firemen at about 2:15 a.m.; that she left the building where the alleged assault occurred at about 6 a.m.; that she did not tell Detective Wood about the oral sex with the tall fireman in the portable rest room; and that she knew where she was when she ran to the labor building after she left the portable rest room where the tall fireman had allegedly assaulted her.
Blunier's and Ochs' testimonies were substantially similar. Both testified they had reported to work on July 12, 1986, a few minutes before midnight. They both testified to walking around the grounds, getting something to eat and then retiring in their respective vehicles they had earlier pulled into the building at about 2 a.m. Both further indicated, however, that a young woman had approached Ochs about a missing purse and that Ochs then yelled to Blunier about whether anyone had reported a missing purse. Ochs stated that he called Blunier by his nickname ...