author: JUSTICE DiYITO

text:
    NORTHERN LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. IPPOLITO REAL ESTATE PARTNERSHIP et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—90—3316
    Opinion filed January 14, 1992.

      Donald L. Johnson and Steven R. Hansen, both of Chicago, and George T. Drost, of Arlington Heights, for appellants.
    Peterson & Ross, of Chicago (J. Robert Geiman, David J. Novotny, and Donald A. Murday, of counsel), for appellee.
   JUSTICE DiYITO

delivered the opinion of the court:

Plaintiff Northern Life Insurance Company (Northern Life) brought suit to rescind six life insurance policies issued to John Ippolito on the ground that he had materially misrepresented the condition of his health when applying for the insurance. Defendants Ippolito Real Estate Partnership, Ippolito Beauty Academy, Inc., and International Beauty Systems, Inc., beneficiaries of the six policies, counterclaimed, seeking the proceeds of the policies. The circuit court granted Northern Life’s motion for summary judgment as to the sixth policy, but denied summary judgment as to the first five policies. Defendants appeal the court’s order entering summary judgment, made final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), raising in issue whether the circuit court erred in granting summary judgment on the sixth insurance policy in Northern Life’s favor.

Sometime in 1982, both John Ippolito and his brother Rosario obtained life insurance policies from Northern Life. Should one of the Ippolito brothers die, it was planned that the proceeds from the policies were to be used to fund certain stock repurchase agreements they had instituted for each of the businesses they owned. Thus, the businesses owned by the brothers were named beneficiaries of the life insurance policies.

By the end of 1984, due to the growth of their companies, the Ippolitos’ stock repurchase agreements were inadequately funded. Consequently, on January 17, 1985, John Ippolito completed five new applications for life insurance and submitted them to Northern Life for approval. In each of these applications, as in the previous insurance policies, Ippolito disclosed that he suffered from hemophilia. In addition, the applications requested that Ippolito provide information on his medical history and medical condition, including whether he had had a weight change in the past year; he responded in the negative.

On April 26, 1985, while the five policies were being considered for approval, but before they were delivered, Ippolito was seen as an outpatient at Michael Reese Hospital by his physician, Margaret Telfer, M.D., a hematologist. During her examination of Ippolito, Dr. Telfer noted that he had experienced a weight loss of approximately 20 pounds, although he had not attempted to lose weight. At the time of his examination, Ippolito was experiencing a recurring sinus infection; according to Dr. Telfer, Ippolito was concerned about his recurrent infections, but was not concerned about the weight loss. In her report of the examination, Dr. Telfer noted her worry about the possible onset of AIDS or pre-AIDS; however, she said nothing to Ippolito of her worry nor did he give any indication to her that he was aware of this possibility.

On May 9, 1985, Ippolito was presented with the five policies and, as a condition of coverage, executed an “Amendment to Application” for each of the policies, verifying that all the information on the policies was correct and that he had continued in good health.

On June 25, 1985, Ippolito met with his insurance agent to complete an application for an additional insurance policy (sixth application). The sixth application contained the same questions as the previous five, including the question concerning weight loss. Ippolito responded to those question in essentially the same manner as he had done on the first five; he disclosed his hemophilia condition and further disclosed all his treatments and physicians in the previous five years. He did not, however, disclose his weight loss.

On July 27, 1985, Ippolito was hospitalized at Michael Reese Hospital and treated by Dr. Telfer. At the time of his admittance, Ippolito was experiencing a dry cough and intermittent fevers. While at the hospital, Ippolito was diagnosed as suffering from pneumocystic carinii pneumonia, an opportunistic infection associated with AIDS. Dr. Telfer advised Ippolito of this infection and of the apparent onset of AIDS; she told him that he would not die from the infection, but that there was no cure for AIDS and “he would eventually die” from it.

After Ippolito was discharged from the hospital on August 10, 1985, he was treated again by Dr. Telfer as an outpatient on August 23, 1985; at that time, Dr. Telfer discussed the AIDS diagnosis again with him. Dr. Telfer also examined Ippolito on an outpatient basis on September 6 and September 27,1985.

On October 1, 1985, Ippolito’s agent presented him with the sixth policy and its accompanying “Amendment to Application.” Ippolito signed the amendment, as he had done with the previous five policies; specifically, he verified that “the information stated in the application as amended by this form is true and correct in all material respects as of the date of this form,” and that he had “continued in good health” and had “not suffered any *** sickness or consulted or been attended by a physician.”

On February 8, 1987, Ippolito died as a result of pneumonia and renal failure, both related to his AIDS condition. Because of its routine procedure to investigate claims presented within the first two policy years (the first five policies had effective dates of May 2, 1985, the sixth policy had an effective date of July 15, 1985), Northern Life conducted an investigation into the claims made by defendants.

As a result of that investigation, Northern Life filed a complaint for declaratory judgment on July 4, 1987, seeking rescission of all six policies. In its complaint, Northern Life alleged that Ippolito made certain misrepresentations in the applications for insurance and in the amendments to the applications that deemed the six policies void. Northern Life further averred that Ippolito breached his fiduciary duty to inform Northern Life as to the changed condition of his health during the pendency of the applications.

Following discovery, Northern Life moved for summary judgment on all six policies. As to the first five policies, Northern Life contended that Ippolito breached his fiduciary duty in not disclosing the change in his health condition (i.e., his weight loss and sinus infection). Northern Life further contended that Ippolito made material misrepresentations on the amendments to the applications. As to the sixth policy, Northern Life argued that Ippolito made material misrepresentations on his application when he failed to disclose his weight loss, and further, he made material misrepresentations on his amendment to the application when he failed to disclose his AIDS diagnosis.

On August 6, 1990, after hearing arguments, the circuit court held that genuine issues of fact existed which precluded summary judgment as to the first five policies. The court, however, granted summary judgment on the sixth policy, holding that Ippolito had an intent to deceive Northern Life regarding the condition of his health, and that the sixth application and amendment contained misrepresentations material to Northern Life’s risk.

Thereafter, defendants moved to have the court’s order deemed final and appealable pursuant to Rule 304(a). Northern Life moved the court to reconsider its order and enter summary judgment on the first five policies. Defendants also asked the court to reconsider its order granting summary judgment on the sixth policy. The court denied both motions to reconsider and made its August 6, 1990, order final and appealable.

In this appeal from the court’s grant of summary judgment on the sixth policy, defendants offer several reasons in support of their contention that the circuit court erred. Not only do defendants maintain that issues of fact preclude an award of summary judgment, they also argue that the court’s award of summary judgment was premised upon a faulty finding that the amendment was part of the application for insurance.

A

Defendants initially argue that the circuit court erred in granting summary judgment based upon its finding that the “Amendment to Application” was part of the application for insurance. Specifically, defendants maintain that the amendment was not part of the negotiations phase of the insurance contract and, thus, material representations thereon cannot be used to defeat coverage.

For support, defendants rely upon section 154 of the Illinois Insurance Code, which provides:

“No misrepresentation or false warranty made by the insured or in his behalf in the negotiation for a policy of insurance, or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or endorsement or rider attached thereto, or in the written application therefor, of which a copy is attached to or endorsed on the policy, and made a part thereof. No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.” (Ill. Rev. Stat. 1989, ch. 73, par. 766.)

Defendants argue that the October 1, 1985, “Amendment to Application” was not part of the negotiations for the policy because “negotiations are already concluded and the amendment simply records the parties’ expressed intentions regarding the coverage that was bargained for.”

Defendants’ contention, however, is not borne out by the record. Nowhere does Gregory Hogue, Northern Life’s chief underwriter, state in his deposition that negotiations were completed prior to the execution of the amendment. Rather, Hogue stated that Northern Life required the amendment to discern whether a change in health had occurred in the proposed insured. According to Hogue, had Ippolito disclosed his AIDS diagnosis, Northern Life would have declined coverage. Moreover, the language in the “Amendment to Application” further diminishes defendants’ argument. The amendment provides that “[¿¡overage under the policy described, will be in force only after this form is signed.” Thus, negotiations were not completed until sometime after the amendment had been signed by the insured and accepted by the insurer.

Not only does the record fail to support defendants’ contention, but their reliance upon Inter-Insurance Exchange of Chicago Motor Club v. Milwaukee Mutual Insurance Co. (1978), 61 Ill. App. 3d 928, 378 N.E.2d 391, is misplaced. In Inter-Insurance, the insurer contended that certain misrepresentations made on the application voided coverage. The court, however, found that the “application was no longer pending but the policy without the application being attached had already been issued when the accident occurred.” (Inter-Insurance, 61 Ill. App. 3d at 932.) Because the insurer failed to attach the application to the policy, the court held that it could not rely upon misrepresentations contained in the application.

In the instant case, both the application and the amendment were attached to the policy when delivered. As such, and because the amendment was clearly executed during negotiations for the policy, defendants’ argument must fail.

B

In a similar vein, defendants further argue that Northern Life has contractually restricted itself to misrepresentations made solely on the application and not on the amendment. For support, defendants point to Ippolito’s life insurance policy, which states in its “general provisions”:

“The entire contract is:
1. this policy; and
2. all applications, riders and amendments attached at the time of issue; and
3. all later applications, riders and amendments we may attach or send you to attach.
Unless fraudulent, all statements made by or on behalf of anyone covered by this policy are representations and not warranties. Only statements found in an attached application may be used to cancel this policy or as our defense if we refuse to pay a claim.”

Defendants maintain that Northern Life thus restricted its defenses to only those misstatements in “an attached application.” Correspondingly, defendants argue, an application, by definition and implication, is distinct from an “amendment”; thus, since the alleged misrepresentation occurred in the “Amendment to Application,” defendants maintain that Northern Life cannot now use the amendment to defeat coverage.

For support, defendants rely upon National Fidelity Life Insurance Co. v. Karaganis (7th Cir. 1987), 811 F.2d 357, a case they describe as “squarely on point.” In Karaganis, the insurance policy contained a general provision similar to the one in the case at bar which restricted the insurer’s defenses to misrepresentations made only on the application. The insurer in Karaganis attempted to void coverage based upon misrepresentations made by the insured in a “smoking statement,” submitted some time after the initial application. The Karaganis court held that an insurer could not rely upon misrepresentations contained in the “smoking statement” to defeat coverage because that document did not indicate that it was part of the application. (Karaganis, 811 F.2d at 358-59.) The court, conversely, found that a completed medical examination report, submitted by the insured approximately one month after the application, was part of the application. (Karaganis, 811 F.2d at 358-59.) In so finding, the court stated “[u]nlike the medical examination report, the smoking statement does not bear the heading ‘Supplement to Application,’ but is labeled simply ‘Smoking Statement’.” Karaganis, 811 F.2d at 358-59.

Like the insured in Karaganis, Ippolito executed a document some time after completion of his application for insurance. That document, however, unlike the “smoking statement” in Karaganis, was clearly labeled “Amendment to Application.” Thus, based upon the reasoning in Karaganis, we find that the amendment was clearly part of the application and, as such, Northern Life may rely upon misrepresentations in the amendment to deny coverage.

Defendants’ reliance on Roberts v. National Liberty Group of Cos. (1987), 159 Ill. App. 3d 706, 512 N.E.2d 792, to support their contention, is also misplaced. In Roberts, the insured, in response to a television commercial, applied for life insurance offered only to persons under 60 years of age. The insured’s initial application, submitted prior to his sixtieth birthday, was either lost or misplaced by the insurer; the subsequent application, received after the insured attained 60, was backdated so that the 60-year limitation could be avoided. After the insured died, the insurer attempted to void coverage on the basis that the insured had misrepresented his condition of health on the application. In finding for the insured, the Roberts court held that the insured’s failure to notify the insurer of his cancer diagnosis, made one month prior to the insurer’s receipt of his application, could not defeat coverage because equity required that, due to the insurer’s “action of backdating the application and policy,” the insurer was barred from asserting the nondisclosure defense. (Roberts, 159 Ill. App. 3d at 709-10.) Roberts is thus inapposite to the instant case.

Accordingly, the circuit court did not err in finding that the amendment was indeed part of the application, and thus, misrepresentations on the amendment may defeat coverage. See, e.g., Marshall v. Metropolitan Life Insurance Co. (1950), 405 Ill. 90, 90 N.E.2d 194.

C

Defendants, for the first time on appeal, maintain that there remains a question of fact whether Ippolito’s case of AIDS was the maturation of a preexisting illness or a change in his health which would have required him to notify Northern Life; thus, defendants contend that summary judgment was improper.

Because the circuit court was not given the opportunity to review this issue, defendants cannot now raise it on appeal (Jackson v. Chicago Board of Education (1989), 192 Ill. App. 3d 1093, 1099, 549 N.E.2d 829); however, even if this court were to entertain defendants’ argument, we must find in favor of Northern Life.

Defendants’ contention is based upon their allegation that Ippolito began to suffer AIDS-like symptoms in April 1985. Defendants argue that because Northern Life was aware of the relationship between AIDS and hemophilia, the known connection put Northern Life on notice of the probability that Ippolito had already contracted AIDS by the time he applied for each of the six policies in 1985. Defendants acknowledge that, if Ippolito contracted AIDS during the pendency of the application, “it may be true that he had a legal duty as well as a contractual obligation to disclose this to Northern Life”; however, they argue that Ippolito’s AIDS was simply a manifestation of a preexisting AIDS infection, and thus, he fulfilled his duty at the time of application when he disclosed his hemophilia.

Defendants’ reliance on Seidler v. Georgetown Life Insurance Co. (1980), 82 Ill. App. 3d 361, 402 N.E.2d 666, where the insurer did not require an affirmation of continued good health like that in the instant case, is misplaced. The rationale of Seidler is that if the proposed insured discloses a medical condition, the insurer may not void the policy if the proposed insured suffers an illness during the pendency of the application which is solely a manifestation of the previously disclosed condition. (Seidler, 82 Ill. App. 3d 361.) Here, despite defendants’ assertions otherwise, the connection between AIDS and hemophilia is not so great that Ippolito’s disclosure of hemophilia put Northern Life “on notice” that he also had AIDS. Thus, the purported “issue of fact,” which defendants argue precludes summary judgment, is not material to the disposition of the instant case. See, e.g., National Boulevard Bank v. Georgetown Life Insurance (1984), 129 Ill. App. 3d 73, 472 N.E.2d 80.

D

Defendants next contend that summary judgment was improperly granted because Ippolito did not intentionally misrepresent his health on the amendment and, further, that that misrepresentation did not materially affect Northern Life’s risk.

Summary judgment is appropriate only when the pleadings, depositions, affidavits, and admissions on file present no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill. 2d 121, 552 N.E.2d 783.) Correspondingly, where certain facts are not in dispute with respect to the terms of a contract, the construction of the contract and its effect on insurance coverage are questions of law which can properly be determined on a motion for summary judgment. Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 458 N.E.2d 644.

The statute governing misrepresentations made in insurance applications is section 154 of the Illinois Insurance Code. As previously stated, that statute provides that only a misrepresentation which has “been made with actual intent to deceive” or which “materially affects *** the acceptance of the risk” can defeat a policy for insurance. (Ill. Rev. Stat. 1989, ch. 73, par. 766.) Thus, a life insurance policy can be held void if either the applicant made misrepresentations with actual intent to deceive or the misrepresentations materially affected the risk of the insurer. Campbell v. Prudential Insurance Co. (1958), 15 Ill. 2d 308, 312-13, 155 N.E.2d 9.

A misrepresentation in an application for insurance is a statement of something as a fact which is untrue and affects the risk taken by the insurer. (Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 577, 60 N.E.2d 207; Garde v. Country Life Insurance Co. (1986), 147 Ill. App. 3d 1023, 1031, 498 N.E.2d 302.) Thus, whether an insured’s statements are material is determined by whether reasonably careful and intelligent persons would have regarded the facts stated as substantially increasing the chances of the events insured against, so as to cause a rejection of the application. (Weinstein, 389 Ill. 571.) Incomplete answers or a failure to disclose material information in response to a question in an application may thus constitute a material misrepresentation. (Garde, 147 Ill. App. 3d at 1031.) A statement cannot be misleading, however, unless an insurer relies upon it in order to determine its risk. Logan v. Allstate Life Insurance Co. (1974), 19 Ill. App. 3d 656, 659, 312 N.E.2d 416.

In establishing the materiality of a misrepresentation, an insurer may rely upon the underwriter’s testimony or testimony of its employees. (Alperin v. National Home Life Assurance Co. (1975), 32 Ill. App. 3d 261, 336 N.E.2d 365.) Ordinarily, the materiality of a misrepresentation is a question of fact; however, where the misrepresentation is of such a nature that all would agree that it is or is not material, the question is appropriate for summary judgment. Garde, 147 Ill. App. 3d at 1031; La Penta v. Mutual Trust Life Insurance Co. (1954), 4 Ill. App. 2d 60, 66,123 N.E.2d 165.

In the instant case, the record indicates that Northern Life did indeed rely upon representations made by Ippolito in the amendment. Gregory Hogue, Northern Life’s chief underwriter, stated that disclosures made by Ippolito in the amendment would be considered in evaluating whether Northern Life could accept the risk. According to Hogue, if Ippolito had disclosed his AIDS diagnosis on the amendment, Northern Life would have declined coverage because AIDS was then, and is now, uninsurable. Further, Clifton L. Reeder, M.D., stated that, although he was not an employee of Northern Life, he was familiar with industry-wide practices and, in his opinion, Ippolito’s misrepresentation was material. Despite defendants’ protestations that the testimony of Hogue and Reeder did not properly establish Northern Life’s underwriting policies and standards, we find that the testimony of both was proper and sufficient.

Certainly, it is clear that Ippolito misrepresented his condition of health on the amendment to the sixth application. Not only did he fail to disclose that answers on the sixth application were false due to the subsequent diagnosis of AIDS (an obvious change in health), but he wrongly stated that he continued in good health.

Accordingly, we find that reasonably careful and intelligent persons would regard the diagnosis of AIDS, an uninsurable condition, as substantially increasing the risk assumed by Northern Life. Thus, it was not improper for the circuit court to hold that Ippolito materially misrepresented his condition of health on the October 1, 1985, amendment.

Likewise, it appears from the record that Ippolito’s misrepresentation was deliberate and intentional. Northern Life had not sent out the amendment merely because of a change in policy terms; rather, it had sent the amendment to determine if Ippolito’s health had changed since the date of the application. Because, “if any length of time elapses between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured,” Northern Life insisted that the amendment be completed. (James v. National Life & Accident Insurance Co. (1932), 265 Ill. App. 436, 438.) Ippolito learned of his AIDS diagnosis in late July 1985 and he discussed this diagnosis with his physician during several subsequent examinations. Thus, Ippolito’s assertion made in the amendment on October 1, 1985, that he was in good health was clearly an intentional misrepresentation. See, e.g., Carroll v. Preferred Risk Insurance Co. (1966), 34 Ill. 2d 310, 215 N.E.2d 801; Western & Southern Life Insurance Co. v. Tomasun (1934), 358 Ill. 496, 193 N.E. 451.

The Carroll court described the relationship between the insured and the insurer as one requiring

“good faith on the part of the applicant because of the peculiar character of the insurance contract. The applicant has an obligation imposed by law to notify the insurer of any changed condition materially affecting the risk during the pendency of the application for insurance.” (Carroll, 34 Ill. 2d at 312.)

In Stipcich v. Metropolitan Life Insurance Co. (1928), 277 U.S. 311, 316-17, 72 L. Ed. 895, 898, 48 S. Ct. 512, 513-14, the United States Supreme Court said of the relationship between the applicant and the insurer that

“even the most unsophisticated person must know that in answering the questionnaire and submitting it to the insurer he is furnishing the data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure. If he fails to do so the company may, despite its acceptance of the application, decline to issue a policy, [citation] or if a policy has been issued, it has a valid defense to a suit upon it. [Citation.]”

Accordingly, based on the foregoing, we find that the amendment was clearly part of the application and, as such, any misrepresentations thereon support avoidance of the policy. Because Ippolito’s undisclosed AIDS diagnosis was a material risk to Northern Life, we find that the circuit court did not err in granting Northern Life’s motion for summary judgment on the sixth policy.

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

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.

      Dr. Telfer’s appraisal of Ippolito’s weight loss was based upon her observation of his appearance only; contrary to procedure, he was not weighed during his examination.

      According to Dr. Telfer, she saw Ippolito in May 1985 at a dinner for the Hemophilia Foundation and he appeared “very cheerful” and had regained five pounds.

      Defendants’ argument that Ippolito somehow thought that he was in “good health” despite his AIDS diagnosis, because Dr. Teller told him that he would not die immediately from AIDS, strains reason. However, we need not determine whether Ippolito was informed by Dr. Telfer that his AIDS diagnosis was terminal; it is clear from the record that Ippolito failed to report on the amendment his obvious change of health.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADRIAN BALLE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—1029
    Opinion filed January 28, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Alexandra C. Buzanis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Adrian Baile (Baile) appeals from the judgment of the circuit court, sitting without a jury, finding him guilty of the aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16) of S.J., a seven-year-old child, for which he was sentenced to four years in the custody of the Department of Corrections. At trial, S.J., who had been found competent to testify, gave the following testimony.

On August 15, 1986, she went to Mrs. Bessie’s Candy Store with her two friends, Lamar and Laronda. S.J. had previously seen Baile in the store; he was the grandson of the owner, Mrs. Barnes. On this particular afternoon, Baile was in the store alone, and after he had given her a free candy bar, he took her by the wrist and forced her into a nearby gangway. While in the gangway, Baile allegedly touched S.J. “in between” her legs with his hand, which he put inside her shorts, and touched her vagina with his finger. While Baile touched S.J., he looked at Lamar and Laronda and told them “to juice, too.” S.J. and her friends knew that this was a “bad word,” connoting that they should “do it to each other,” but they did not comply.

Seven-year-old Lamar, also found competent to testify, related that S.J. had received a free candy bar from Baile and that he had seen him grab S.J. and force her into the gangway alongside the store. Lamar watched from the sidewalk, approximately 2x/z feet away, while Laronda watched from the gangway. Baile was crouched down in front of S.J., four inches away, face to face, while she stood with her back pressed up against a building wall. Lamar further testified that he then saw Baile “sticking his hand in her,” through the right side of her shorts, in the area of her groin. Meanwhile, Mr. Barnes, Balle’s grandfather, approached the scene from the street, and while Balle’s hand was still inside S.J.’s shorts, Barnes stopped by Lamar and also watched. Barnes then yelled “[g]et out of that gangway,” and Baile removed his hand from inside S.J.’s shorts and ran towards an alley.

It was not until August 24, 1986, that S.J. first told anyone of the incident. She had been staying with her maternal grandparents when her mother (Mrs. J.) was notified that something had happened between Baile and S.J. Mrs. J. went directly to her parents’ house, where she confronted S.J., demanding to know what Baile had done to her. S.J. told her mother that Baile had put his hands in her shorts, “and she [S.J.] said, Adrian put his hand in my cat.” S.J. pointed to her vagina. Mrs. J. then had S.J. take off her clothes so “I could see what I could see.” Mrs. J. saw nothing, but called the police, who took her to Mt. Sinai Hospital, where she remained for five days. At trial, Mrs. J.’s conversation with S.J. was admitted over Balle’s objection. Mrs. J. also testified that about a week before that conversation, around August 18, 1986, she saw S.J. asleep with her hand on her vaginal area. At that time S.J. told her about some personal hygiene problems she was experiencing. Mrs. J. examined the vaginal area and saw that it was red and chafed.

At the hospital S.J. was examined by a special team of doctors, psychiatrists, and child-life specialists to determine whether or not she had been a victim of child abuse. Dr. Sharon Ahart, an expert in pediatrics, testified that on August 25, 1986, she examined, evaluated, observed and interviewed S.J. in Mt. Sinai Hospital’s Pediatric Ecology Unit, which specializes in maltreated children. Dr. Ahart testified that when S.J. was asked why she was in the hospital she replied that she was “sick because someone had stuck a finger in her, in her cat.” S.J. also told the doctor that this incident occurred in a gangway and that Baile had touched her under her clothes. S.J.’s colloquy with Dr. Ahart was also admitted over Balle’s objection.

Dr. Ahart conducted a complete physical examination of S.J., which included her vaginal area, both external and internal. A tiny scar was visible inside S.J.’s genital region, on her labia majora, which could have been caused inadvertently by S.J. when she wiped herself. The internal exam also revealed a “severe amount of erythema [redness] on the inside of the labia majora and minora,” a condition caused by “increased vascular irritation.” S.J.’s hymen was thin and irregular, indicating that she had been traumatized in her vaginal area, even though her hymenal opening indicated a normal size. Dr. Ahart testified that in her opinion, S.J. had been digitally penetrated.

The defense presented two witnesses. One was Rita Parida, a child-life specialist, who testified that S.J. had told her that Baile had kissed her and put her on his lap, and that he had “juiced” her. S.J. also told Parida that “he wanted to feel on my coo coo. He felt on my coo coo.” Parida also testified that S.J. had told her that Baile had touched her once, with a finger, over her clothes.

The other defense witness was Dr. Benjamin Emanuel, an expert in pediatrics. He testified that erythema without ecchymosis (blood under the tissue) will disappear within three to four days. He further testified that the thinness and irregularity of the hymen observed by Dr. Ahart was completely normal, and that S.J.’s hymen could not have been abused because there were no lacerations. In his opinion the physical evidence was consistent with explanations other than penetration and that the evidence did not support a finding of abuse.

At the conclusion of the trial, the court acquitted Baile of aggravated criminal sexual assault, with which he had also been charged, but found him guilty of the criminal sexual abuse charge. His motions for a new trial and in arrest of judgment were denied; and after a hearing in mitigation and aggravation, Baile was sentenced to four years in the custody of the Illinois Department of Corrections.

Baile contends that the trial court failed to find him guilty beyond k reasonable doubt. He argues that a reviewing court must find the testimony of the complaining witness to be “clear and convincing” or “substantially corroborated” before affirming a conviction of aggravated criminal sexual abuse. (People v. Taylor (1987), 153 Ill. App. 3d 710, 712.) He further asserts that courts continue to adhere to these standards in sexual abuse cases. (See People v. McCartney (1990), 206 Ill. App. 3d 50, 55; People v. Diaz (1990), 201 Ill. App. 3d 830, 834; People v. Foley (1990), 206 Ill. App. 3d 709, 715; People v. Gibson (1990) , 205 Ill. App. 3d 361, 367.) Therefore, he claims, this court is “free to likewise so conclude and determine whether the State’s proof here was clear and convincing or substantially corroborated.”

Baile also claims that S.J.’s testimony was not clear and convincing because she was unable to answer approximately 35% of the questions put to her by both the State and the defense, and that she had been coached in the answers she gave. He also suggests that her testimony was not substantially corroborated because the medical evidence was inconclusive, and that the statements made to her mother and Dr. Ahart were not identical.

While it is true that in sexual assault cases the standard employed by our courts has been to require that a complaining witness’ testimony be “clear and convincing” or “substantially corroborated” (People v. Thompson (1978), 57 Ill. App. 3d 134, 139-40), this court but a few months ago held in People v. Byrd (1990), 206 Ill. App. 3d 996, 1006:

“ ‘We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt.’ (People v. James (1990), 200 Ill. App. 3d 380, 394.)” (206 Ill. App. 3d at 1006.)
“[T]he standard to be used in reviewing the sufficiency of evidence in all criminal cases is proof beyond a reasonable doubt, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291.)” 206 Ill. App. 3d at 1006.

More recently, the Illinois Supreme Court, in People v. Schott (1991) , 145 Ill. 2d 188, 202, held it “incongruous for an appellate court to view a sex-offense victim’s testimony with skepticism by employing this special standard of review ***. In place of this standard, we find that the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, should govern an appellant’s claim of evidentiary insufficiency in sex-offense cases.”

Prior appellate court decisions have also rejected the more heightened standard of review in sexual offense cases. (People v. Allen (1991), 220 Ill. App. 3d 772; People v. Wheeler (1991), 216 Ill. App. 3d 609; People v. Mack (1991), 216 Ill. App. 3d 239; People v. Thomas (1991), 215 Ill. App. 3d 751; People v. Murff (1991), 214 Ill. App. 3d 1034; People v. Hart (1991), 214 Ill. App. 3d 512; People v. McCarthy (1991), 213 Ill. App. 3d 873, 879-80; People v. Casiano (1991), 212 Ill. App. 3d 680; People v. Stengel (1991), 211 Ill. App. 3d 337, 346; People v. Puhl (1991), 211 Ill. App. 3d 457; People v. Lemons (1991), 210 Ill. App. 3d 33; People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1012; People v. Westfield (1990), 207 Ill. App. 3d 772, 777; People v. Byrd (1990), 206 Ill. App. 3d 996; People v. Roy (1990), 201 Ill. App. 3d 166, 185.) The correct question to ask on review now is “whether the evidence, viewed in the light most favorable to the State, would support a rational trier of fact’s determination that the essential elements of the crime have been proved beyond a reasonable doubt.” (Allen, 220 Ill. App. 3d at 777.) In light of this standard, we need not consider whether the testimony of S.J. was “clear and convincing” or “substantially corroborated.” Rather, the “inquiry is limited to whether the evidence, when considered in the light most favorable to the State, supports the trial court’s determination that [Baile was] guilty of the sexual [abuse of S.J.].” Allen, 220 Ill. App. 3d at 777.

“ ‘In a bench trial, it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.’ ” (People v. Allen (1991), 220 Ill. App. 3d 772, 779, quoting People v. Slim (1989), 127 Ill. 2d 302, 307, citing People v. Hall (1990), 194 Ill. App. 3d 532; People v. Hutson (1987), 153 Ill. App. 3d 1073.) And it is for the trial court also to “resolve inconsistencies and conflicts in the State’s evidence.” Allen, 220 Ill. App. 3d at 779.

S.J. was found to know the difference between lying and telling the truth. That she may not have been able to answer more than a third of the questions put to her by the defense and the prosecution is of no moment in light of the fact that she plainly answered every question that went to the core issues of the case. Even on cross-examination, she testified with great certainty about Baile’s acts: she felt his finger, and she pointed to the place that he fondled — her groin area. She remembered also that she spent five days in Mt. Sinai Hospital, and that while she was there, she used anatomically correct dolls and explained to Dr. Ahart and Rita Parida (the latter, a defense witness) Baile’s sexual actions. She was positive about all that took place in the gangway, the focal point of the occurrences that form the gravamen of the indictment in this case, and she identified Baile. Moreover, her delay in reporting the abuse is understandable, since such delays are acknowledged in the law as being very often due to recognized shame. (See People v. Campos (1978), 60 Ill. App. 3d 36, 38-39.) In Campos, a five-month delay was excused by factors such as the nature of the attack and the shame associated with such an experience. (Campos, 60 Ill. App. 3d at 37-39.) We hold that the evidence in this case clearly supports a finding of guilt beyond a reasonable doubt.

Baile next argues that in this case the indictment failed to charge an essential element of the offense: that Baile touched S.J. for the purpose of sexual gratification or arousal of the victim or the defendant. Baile further argues that where an indictment fails to comply with the requirement of section 111 — 3 of the Code of Criminal Procedure of 1963 that it set forth the “nature and elements of the offense charged,” and such failure is raised in a motion in arrest of judgment, as was done here, a court of review must reverse any conviction based on such a defect.

The elements of section 12 — 16(c)(l) are as follows:

“(c) The accused commits aggravated criminal sexual abuse if:
(1) the accused was 17 years of age or over and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed.” Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(l).

The count charging Baile with aggravated criminal sexual abuse reads as follows:

“Adrian Baile committed the offense of aggravated criminal sexual abuse in that he, a person over 17 years of age, committed an act of sexual conduct, to wit: Adrian Balle’s hand fondled the vagina of [S.J.], a person under 13 years of age, in violation of Chapter 38, [section] 12 — 16(c)(1) of the Illinois Revised Statutes 1985 as amended ***.”

The definition of “sexual conduct” appears in section 12 — 12(e) of the Criminal Code of 1961 as:

“any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” Ill. Rev. Stat. 1985, ch. 38, par. 12—12(e).

We first consider the State’s argument that Baile waived his right to contest the sufficiency of the aggravated criminal sexual abuse count of the indictment by failing to attack the sufficiency of the aggravated criminal sexual assault count as well, and we find it unconvincing. Even if the aggravated criminal sexual abuse charge were defective, the State asserts, the aggravated criminal sexual assault charge, the sufficiency of which was not challenged, was adequate to convict Baile of aggravated criminal sexual abuse. Since he is deemed to have received adequate notice with respect to the aggravated criminal sexual assault charge, the State continues, he cannot now claim that the notice he had of the lesser included charge of aggravated criminal sexual abuse was inadequate.

The State offers no plausible reason as to why Baile should have contested the sufficiency of the aggravated criminal sexual assault when he was not found guilty of that charge; nor does the State cite any authority for this proposition. (See People v. Felella (1989), 131 Ill. 2d 525, 540 (“[a] point raised but not argued or supported by citation to relevant authority fails to satisfy the requirements of Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)) and is therefore waived”).) We therefore find the State’s contention that it was necessary for Baile to complain of the adequacy of the indictment for the greater offense in order to make a successful attack on its sufficiency for the lesser included offense to be totally without foundation.

As to the merits of the issue he raises, Balle cites People v. Edwards (1990), 195 Ill. App. 3d 454, as controlling. In Edwards, the defendant was charged with two counts of aggravated criminal sexual abuse in an indictment which was returned in language similar to the one brought in this case. There the State alleged that the defendant “knowingly committed an act of sexual conduct with [the victim], who was at least 13 years of age but under 17 years of age, in that [he] placed his mouth on the vaginal area of [the victim, and] was at least five years older than [the victim].” (Edwards, 195 Ill. App. 3d at 457.) The charge in Edwards “omitted the Code’s provision that the relevant sexual conduct was ‘for the purpose of sexual gratification or arousal of the victim or the accused,’ ” and the court held that the “purpose of sexual gratification” provision “was not *** inessential merely because its source is the statutory definition *** of the charged offense, aggravated criminal sexual abuse.” (Edwards, 195 Ill. App. 3d at 457.) Consequently, the court reversed the defendant’s convictions on those counts.

We do not agree with Edwards; instead, we find that People v. Lewis (1986), 147 Ill. App. 3d 249, appeal denied (1987), 113 Ill. 2d 580, cert. denied (1987), 482 U.S. 907, 96 L. Ed. 2d 379, 107 S. Ct. 2487, correctly states the law. In Lewis, the indictment charged that the defendant had committed the offense of aggravated criminal sexual abuse, in that “he, a person 17 years of age or over, committed an act of sexual conduct, to wit: sexual intercourse with [O.S.], a person under 13 years of age, in violation of chapter 38, section 12 — 16—0(1) of the Illinois Revised Statutes 1983 as amended.” (Lewis, 147 Ill. App. 3d at 251.) It is to be noted that the language in Lewis is quite similar to that used in the instant indictment and that both track the language of section 12 — 16(c)(l). The Lewis court held the test to be that “ ‘[i]t is sufficient to allege an offense in the language of a statute if the words so far particularize the offense that by their use alone an accused is informed with reasonable certainty of the precise offense with which he is charged.’ ” (Lewis, 147 Ill. App. 3d at 251, quoting People v. Abrams (1971), 48 Ill. 2d 446, 459.) The court went on to hold that the words “ ‘sexual conduct,’ standing alone *** were sufficiently specific to inform defendant with reasonable certainty of the offense with which he was charged.” (Lewis, 147 Ill. App. 3d at 252.) Accordingly, we hold that Baile fails to show that he was not apprised with reasonable certainty of the charges brought against him.

In his third assignment of error, Baile claims that there was no proof that he intended to arouse either himself or S.J. In order to sustain the charge of aggravated criminal sexual abuse, the State needed to prove the following elements beyond a reasonable doubt: (1) that Baile was at least 17 years old; (2) that S.J. was under 13 years old; (3) that Baile intentionally or knowingly touched or fondled S.J., either directly or through clothing; and (4) that the touching was for the purpose of sexual gratification or arousal of the victim or the accused.

Baile maintains that “where an accused is tried under section 12 — 16(c)(l)(i), the quantum of proof necessary to show intent to arouse in touching a child should be something affirmative, something more than mere insinuations.” (Emphasis added.) Here again Baile fails to cite any authority for his assertion. Instead, he contends that the circumstances in this case are consistent with innocent behavior, that there was no proof that he was a pedophile, nor of arousal, e.g., no flushed faces, heavy breathing, or close body contact.

Baile fails to consider, however, that “[i]ntent to arouse or satisfy sexual desires may be established by circumstantial evidence” —that the trier of fact may consider the “circumstances and facts and infer defendant’s intent from his conduct.” (People v. Goebel (1987), 161 Ill. App. 3d 113, 125, appeal denied (1988), 118 Ill. 2d 547.) We are persuaded that Balle’s acts themselves — his “method of abuse upon S.J.,” as the State expresses it in its brief — supplied the proof of the requisite sexual arousal or gratification. His actions and words in the gangway admit no doubt as to the criminality of his behavior. There was ample evidence that he had performed an act of sexual abuse, namely, his touching of the victim’s vagina; and the witnesses heard him directing them to “juice too,” the meaning of which appears to have been undisputed. Baile did not inadvertently, accidentally, or medically touch S.J.’s vaginal area. His intentions were clearly and unmistakably for sexual gratification and arousal, and under the circumstances surrounding the events that transpired in this case, they could have had no other purpose — certainly not an innocent one.

As his fourth issue, Baile complains that he was denied a fair trial because of the State’s use of what he alleges was hearsay evidence, and as to which he makes a four-pronged argument. First, he argues that the trial court erroneously applied amended section 115 — 10, of the Code of Criminal Procedure. Between the time the offense was committed and the time Baile went to trial, section 115 — 10 was amended. The offense occurred prior to January 1, 1988, but the trial took place after January 1, 1988, the effective date of the amended section.

Prior to January 1, 1988, section 115 — 10 permitted a person other than the complainant to testify only to the fact that a complaint was made, but not to the substance or details of the complaint. Since January 1, 1988, amended section 115 — 10 has permitted testimony regarding the fact that a complaint was made, as well as the details of the complaint.

Baile urges that section 115 — 10 is a procedural statute affecting substantive rights because, although it does not allow identity to be admissible, it does allow details, previously inadmissible, now to be admissible; therefore, it cannot be applied retroactively. (See Hogan v. Bleeker (1963), 29 Ill. 2d 181.) To apply the statute retroactively, he asserts, violates the ex post facto clauses of the Illinois and United States constitutions, in that it “alter[s] the legal rules of evidence in order to convict the defendant.” People v. Anderson (1973), 53 Ill. 2d 437, 441.

Balle errs. This court, in People v. Hart (1991), 214 Ill. App. 3d 512, 519, dealt with a challenge to amended section 115 — 10 that it was ex post facto, and it adopted the rationale expressed in the second district case of People v. Priola (1990), 203 Ill. App. 3d 401. In Priola, the court determined that “the more recent version [of section 115 — 10] does not necessarily make convictions easier” simply because it allows more testimony concerning the specific details of a corroborative complaint. (Priola, 203 Ill. App. 3d at 418.) The court went on to state that a corroborative complaint “[had] always [been] admissible if the child testified. *** Such testimony is now admissible only if the trial court determines in a hearing outside the jury’s presence that sufficient safeguards and reliability exist.” (Priola, 203 Ill. App. 3d at 418.) Applying this reasoning, the Hart court held

“that the trial court did not err by applying the amended version of the statute retroactively. The statute, as amended, is a procedural rather than a substantive change, which does not alter the elements of the offense, increase the punishment, or decrease the State’s burden of proof. Such alterations, which merely remove existing restrictions upon the competency of certain witnesses, relate to modes of procedure only, in which no one has a vested right. [Citations.] Accordingly, the retroactive application of the amended statute does not offend our constitutional concepts concerning ex post facto laws.” (Hart, 214 Ill. App. 3d at 519.)

Thus, Balle’s argument as to this prong of the issue cannot be upheld.

In the second prong of his argument, Baile maintains that even if the trial court was correct in applying amended section 115— 10, that section requires that the court conduct a hearing to determine if the “time, content, and circumstances of the statement provide sufficient safeguards of reliability,” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b)(l)) and that since no such hearing was held in this case, the trial court erred. Baile also contends that he was not given notice, pursuant to section 115 — 10(d), of the State’s intention to offer the statement in evidence; therefore, he urges, his conviction should be reversed.

People v. Hart (1991), 214 Ill. App. 3d 512, dealt also with the issue of a trial judge’s failure to conduct a separate hearing to determine the admissibility of a minor’s statements made prior to trial. In that case, as in the instant one, the defendant was charged, in part, with aggravated criminal sexual abuse, and numerous witnesses testified, including the victim’s mother. In Hart, however, the court did not allow the victim to testify because it found that although she “knew the difference between the truth and a lie, she did not appreciate the meaning of an oath.” (Hart, 214 Ill. App. 3d at 517.) The case was tried before the bench, and the trial judge determined that the accounts of the victim’s statements were admissible. In following People v. Roy (1990), 201 Ill. App. 3d 166, the Hart court held that

“the requirement of a ‘hearing outside the presence of the jury’ is not wholly inapplicable to bench trials. However, since the trial judge is presumed to have considered only admissible evidence, he may be presumed to have considered the time, content, and circumstances under which the statement [sic] was made in determining the reliability of the statements [sic]. ***
In Roy, the failure to conduct a hearing was not held to be error even though the trial court never specifically articulated its findings as to the reliability of the statements [sic].” (Hart, 214 Ill. App. 3d at 524, citing People v. Roy, 201 Ill. App. 3d at 183.)

In a fact situation similar to that in Roy, the trial court here, too, “never specifically articulated its findings as to the reliability of the statements” (Roy, 201 Ill. App. 3d at 524); however, applying the principles deducible from Roy and Hart, we hold that under the circumstances of this case it was not necessary to have a separate hearing, and even if it were, it would amount to no more than harmless error.

In the third prong of his argument, Baile argues that it was error for the trial court to allow S.J.’s mother to testify to S.J.’s out-of-court statement to her. His initial contention as to this claim is that S.J.’s statement did not qualify as a complaint under the statute, since it was made in response to leading questions. Assuming that S.J.’s statement does qualify as a complaint under the statute, Baile argues, Mrs. J.’s statement that S.J. had told her that Baile had put his hand under S.J.’s shorts and put his hand in her “cat” is beyond the exception to the hearsay rule, because it includes details and identification of the defendant. People v. Valko (1990), 201 Ill. App. 3d 462.

Balle’s reliance on the standard in Valko is unwarranted. Although he correctly states the rule of law as enunciated in Valko, he overlooks that Valko interprets the 1985 statute, that is, the preamendment version of section 115 — 10. As noted above, the critical part of the statute in question was modified in 1988, thus making the Valko rule, based upon the 1985 statute, no longer pertinent. Further, S.J.’s statement certainly qualifies as a complaint; a victim’s responding to a question of “what happened” does not make the statement inadmissible. People v. Miller (1978), 58 Ill. App. 3d 156.

As we have previously noted in this opinion, detail, but not identification, is admissible. Yet in the case at bar although detail in the form of an identification of the defendant was admitted into evidence, we find it to be harmless error because S.J., Mrs. J. and Lamar identified Baile in court as the perpetrator of the offense with which he was charged. (People v. Server (1986), 148 Ill. App. 3d 888.) More important, Baile did not raise a misidentification defense. In order to refute “penetration,” he presented a defense of “inadvertent touch.” Therefore, we do not perceive how he could have been prejudiced by S.J.’s out-of-court statement to her mother.

In the fourth and final prong of his argument, Baile complains that Dr. Ahart’s testimony regarding S.J.’s out-of-court statement to her exceeded the scope of the statutory exception to the hearsay rule under amended section 115 — 10 and section 115 — 13 of the Code of Criminal Procedure. His initial claim is that “[S.J.’s] statements to [the doctor] did not qualify as a complaint under [amended section 115 — 10]. Instead of going to her family doctor, [S.J.] was taken by the police to a hospital where she was examined by medical personnel experienced in testifying in court.” Baile also argues that the statements do not qualify as an exception to the hearsay rule under section 115 — 13 because Dr. Ahart was an examining doctor and not a treating doctor. People v. Taylor (1987), 153 Ill. App. 3d 710.

It will be noted, however, that the rule in Taylor does not deal with the section 115 — 13 exception to the hearsay rule. Instead, it deals with general hearsay rules regarding statements made to treating physicians. Rather, we find her testimony admissible pursuant to the medical personnel exception provision of section 115 — 13. In Roy, the fourth district declined to make any distinction between types of physicians testifying under section 115 — 13. (People v. Roy (1990), 201 Ill. App. 3d 166.) There the court held that

“[sjection 115 — 13 does not provide for a distinction between examining physicians and treating physicians. Instead, it provides statements of sexual assault victims to medical personnel for purposes of ‘diagnosis or treatment’ shall be admitted. The reference to diagnosis or treatment evinces a legislative intent to apply this provision broadly and not to limit the testimony only to treating physicians. [Citation.]” (Roy, 201 Ill. App. 3d at 178.)

Thus S.J.’s statement, introduced in evidence through Dr. Ahart, was properly admitted.

In his fifth and last issue, Baile claims that the trial court abused its discretion when it improperly weighed the mitigating and aggravating factors in sentencing him to four years’ incarceration. At sentencing, the trial judge considered in mitigation the fact that Baile had no record of convictions. Baile complains, however, that the trial court considered, as an aggravating factor, the fact that he might have been in need of mental treatment. In addition, Baile argues, the trial judge improperly relied on speculation that the crime could have developed into one with even more serious consequences. Baile argues that because he was not proven guilty of committing a more serious offense, it was improper for the trial judge to deny him probation or to sentence him to more than the minimum term.

The law is clear that a trial judge’s imposition of sentence will not be disturbed absent an abuse of discretion, and her decision is to be given great weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) It is not the function of the reviewing court to serve as a sentencing court (People v. Edwards (1988), 167 Ill. App. 3d 324, 337), since the trial court is in the best position to fashion a sentence. (People v. Steppan (1985), 105 Ill. 2d 310, 323.) Baile was found guilty of aggravated criminal sexual abuse, a Class 2 felony, which carries a sentence of not less than three and not more than seven years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 16(c), 1005 — 8—l(a)(5).) The record confirms that the trial court balanced Balle’s rehabilitative potential against other factors. Accordingly, we hold that Baile was properly sentenced to a term of four years.

For all of the above reasons, the judgment of the circuit court is affirmed, but we deny the State’s request for costs in this appeal.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.

      Amended section 115 — 10 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10) reads as follows:
      “(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violation of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
      (1) testimony by such child *** that he or she complained of such act to another; and
      (2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
      (b) Such testimony shall only be admitted if:
      (1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
      (2) The child either:
      (A) Testifies at the proceeding; or
      (B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.”

      Section 115 — 13 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 13) reads as follows:
      “In a prosecution for violation of Section 12 — 13, 12 — 14, 12 — 15 or 12 — 16 of the ‘Criminal Code of 1961’, statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.”


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL THOMAS, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—0454
    Opinion filed April 23, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Michael Davidson and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, defendant was convicted of multiple counts of criminal sexual assault, aggravated criminal sexual assault, kidnapping, and aggravated kidnapping, one count of unlawful restraint and one count of aggravated battery. Judgment was entered on eight counts of aggravated criminal sexual assault, three counts of aggravated kidnapping, aggravated battery and violation of parole. Defendant received concurrent sentences of 12 years’ imprisonment on each of aggravated kidnapping and aggravated criminal sexual assault convictions, five years for aggravated battery and three years for violation of parole. On appeal, defendant contends that the evidence was not sufficient to prove him guilty beyond a reasonable doubt on five of the counts of aggravated criminal sexual assault; that one count of aggravated kidnapping should be vacated; and that he is entitled to a new sentencing hearing.

At trial, the victim, T.W., testified that she was 15 years of age when the offenses occurred, on March 30, 1987. Defendant, then age 17, had been her boyfriend between August 1986 and late February 1987, when she broke off the relationship. At approximately 5 p.m. on the date of the crimes, she was home alone in the second-floor apartment where she lived with her family. The doorbell rang, and when she went downstairs to answer it, she saw Myron Holmes, whom she knew through defendant. Defendant then appeared, and when she attempted to close the door, Holmes pulled it open and defendant stepped into the entranceway. T.W. informed defendant that she was not allowed to have company when she was home alone. T.W. then went upstairs to answer the telephone. Defendant and Holmes followed her up to the apartment. Defendant told her that he needed to talk to her, but she repeated that she was not allowed visitors. The telephone rang again, and as she turned to answer it, defendant grabbed her by the hair and the back of her neck. He then retrieved her coat and shoes from her bedroom, forced her to put them on and told her to come with him because he wanted to talk to her.

They exited the building and walked down the street with Holmes in front and defendant holding her arm and pushing her from behind. After an attempt by T.W. to run away, defendant held her by her neck as they continued walking until they reached the Fila Club. The door was locked but when defendant knocked, someone let them inside. T.W. had never been there before, but described it as a bar and dance club. Defendant led her through the bar area to a room in the rear where the dance floor was located. Defendant knocked on that door and asked the person who opened it if he could use the room for a while. After the person left, defendant gave T.W. the note she had written him a month earlier severing their relationship and told her to read it aloud. After she read it, he tore it into bits and told her to “eat her words.” When she refused to eat the paper, he slapped her in the face, forced the papers into her mouth and ordered her to swallow them. She eventually complied after being slapped again by defendant.

Defendant next told her to undress and then went to a small boiler room from where he brought out a woolen item, which may have been a coat. He threw the coat on the floor near a chair and repeated his order that T.W. undress. After she did, he sat on the chair and ordered her to perform oral sex on him. When she refused, he pushed her down onto the coat and engaged in forced vaginal and then anal intercourse with her. Defendant then unlocked the door and told some men in the bar area that they could do whatever they wanted to her. Holmes came into the room and said he wanted T.W. to perform oral sex. When she refused, defendant slapped her and forced her to comply.

After Holmes left the room, defendant removed a barbecue fork from a cabinet and placed it on a heating plate. He also brought out a splintered wooden mop or broomstick with which he threatened to anally assault her. Someone came to the door and spoke with defendant. Defendant then returned the splintered broom to the closet and brought out a different broomstick which he placed against the chair between her legs. Next, he took the fork from the heater and, holding her down, burned her with it on the left side of her chest, explaining that the bum marks would give her “something to remember [him] by,” and stating that he “should be branding his name in [her] chest.” When she kicked him away, defendant came back toward her and “pushed the stick and it hit [her] vagina.” He then grabbed her and burned her right shoulder and chest with the hot fork.

When Holmes came in and told defendant that T.W.’s cousins had learned she was there, defendant directed T.W. to dress. He then took T.W. to a store across the street. When a store cashier asked T.W. why she was crying, defendant slapped her, ordered her to “shut up” and told the cashier to “stay out of it.” Defendant led her to a telephone and instructed her to call her family and give them false information of her whereabouts. She tried but was unable to relay the information to her sister because she was still crying.

Defendant then took her to a third-floor apartment where a man unlocked the door and a set of burglar bars to let them inside and then relocked the door and bars. Defendant led her to the living room and then left for awhile. While he was gone, T.W. fell asleep on the couch. When defendant returned, he covered her with a blanket he had brought back, and apologized to her, explaining that his actions stemmed from her rejection of him and his jealousy. T.W. then falsely told defendant that she was pregnant in the hope that he would not hurt her again. Defendant nevertheless ordered T.W. to undress and engage in sex with him, threatening to kill her if she refused. The following morning, defendant took T.W. to a bus and allowed her to return home.

It was stipulated that defendant told a police detective that he did not have sex with T.W. but that he did inflict the bums. The assistant State’s Attorney who later took a statement from defendant testified that defendant admitted having sex with T.W. but stated that she consented because she was his ex-girlfriend and was trying to “get back with him.” Defendant denied burning T.W. in his statement to the attorney.

Defendant testified that he had gone to T.W.’s house to borrow a television he had given her as a gift. She told him that she could not have visitors, but would go with him to his house as long as she was home before her mother returned. They went to the Fila Club, where defendant worked as a disk jockey. T.W. had been there with him on two or three prior occasions. There were a few people in the front, so they went to the rear area where their conversation escalated into an argument concerning defendant’s sexual involvement with one of T.W.’s friends. The argument lasted only 10 minutes and was not violent. Defendant denied committing any of the acts described by T.W. in her testimony. After leaving the Fila Club, they went to a store and then to the apartment of a friend named Carl where T.W. agreed to spend the night with him. He left the apartment three times, on one occasion for three hours. When he returned, they had a long conversation in which she told him that she was pregnant. They spent the night together and had consensual intercourse. The following morning, he took T.W. to a bus stop and put her on a bus which took her home.

We turn first to defendant’s contention that his conviction of aggravated kidnapping as charged in count XIX of the indictment should be vacated. His position is that the basis of count XIX was the commission of criminal sexual assault, which convictions had been vacated by the court on the ground that they had merged into his convictions of aggravated criminal sexual assault. He further asserts that count XIX was duplicative of count XVIII, which charged him with aggravated kidnapping based upon aggravated criminal sexual assault. The State agrees with defendant’s contention. Consequently, defendant’s conviction and sentence for aggravated kidnapping based upon criminal sexual assault as charged in count XIX of the indictment are vacated.

We next consider defendant’s contention that he was not proven guilty of those of the counts of aggravated criminal sexual assault based upon sexual penetration of T.W. with a broomstick. Defendant argues that there was no evidence of sexual penetration. We are constrained to agree.

In order to obtain a conviction of criminal sexual assault, the State must prove the occurrence of sexual penetration. (Ill. Rev. Stat. 1989, ch. 38, par. 12—13.) Sexual penetration by means other than bodily contact by the offender with the sex organ of the victim includes “any intrusion, however slight, of any *** object into the sex organ *** of another person.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(f).

In the present case, T.W. testified that defendant placed the broom or mop stick against the chair between her legs and then held her down and burned her. After kicking defendant away, he came back toward her and, in her words, “pushed the stick and it hit my vagina.” This testimony does not establish an intrusion into her sex organ as is required to establish penetration with an object. Consequently, defendant’s convictions and sentences on those counts of aggravated criminal sexual assault based upon sexual penetration by a broomstick must be vacated. See People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125.

Defendant also contends that his convictions of three counts of aggravated criminal sexual assault predicated on the burning of T.W. must be reversed because the bums were not inflicted “during the commission of a criminal sexual assault” (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(a)(2)). Defendant argues that an injury or bodily harm which is not sufficiently linked to a sexual assault cannot serve as the aggravating factor underlying the charge of aggravated criminal sexual assault. (People v. Boyer (1985), 138 Ill. App. 3d 16, 485 N.E.2d 460.) He maintains that the evidence here established that the acts of burning T.W. occurred after the acts of sexual assault rather than during their commission and therefore cannot be used as the basis for aggravated criminal sexual assault charges.

This same issue was raised and addressed in People v. Colley (1989) , 188 Ill. App. 3d 817, 544 N.E.2d 812, and People v. White (1990) , 195 Ill. App. 3d 463, 552 N.E.2d 410. In Colley, the defendant entered the victim’s home during the night and committed various acts of sexual assault. He thereafter demanded money, and when she denied having any, he hit her in her eye, briefly placed a pillow over her face and then cut her neck and chin with a pocket knife. A jury found the defendant guilty of aggravated criminal sexual assault and armed robbery. On appeal, he argued that he could not be convicted of aggravated criminal sexual assault because the stabbing occurred too long after the sexual acts to be considered part of the same course of conduct.

The Colley court noted that the stab wounds were inflicted soon after completion of the sexual acts and held that they were sufficiently close in time to those acts so that they could be found to have been committed during the course of the sexual assault. The court stated it would “not draw a bright line between the ending of the sexual acts and the bodily harm occurring afterward, as that would defeat the statutory purpose of protecting victims from sex offenders.” Colley, 188 Ill. App. 3d at 820.

The reasoning and holding in Colley was expressly followed by the court in White. In that case, the defendant hit the victim several times and ripped off her nightgown. He then followed her upstairs where he sexually assaulted her. The court found that the period between the beating and the sexual assault was sufficiently close so as to support a finding that it was committed in the course of a sexual assault.

Similarly, in the present case, the evidence presented established that defendant forced T.W. to accompany him to a dance club where he engaged in a course of conduct which began with slapping her and forcing her to eat paper. He then compelled her to disrobe and sexually assaulted her, following which he forced her to submit to another sexual act with an individual, Holmes, whom defendant had invited into the room. When Holmes left the room, defendant removed a long fork from a cabinet and placed it on a hot plate. He also produced a broom with a splintered handle and threatened to anally assault her with it. Immediately after another brief interruption by someone who came to the room, defendant used the hot fork to “brand” T.W., who was still naked, on her left and right chest areas and left shoulder. After burning T.W., defendant forced her to accompany him out of the dance club and eventually took her to a friend’s apartment where, she testified, additional acts of sexual assault occurred.

The burnings of T.W. were part of an unbroken series of events and were both very near in time and closely linked to the forced sexual acts. These burnings were sufficient to support the charges and convictions of aggravated criminal sexual assault based upon the infliction of bodily harm during the commission of a criminal sexual assault. The case of People v. Boyer (1985), 138 Ill. App. 3d 16, 485 N.E.2d 460, on which defendant relies, is factually and analytically distinguishable in that the issue was whether there was sufficient evidence that the sexual assault victim sustained bodily harm or injury. In the case before us, T.W.’s injuries were proven by both testimonial and photographic evidence.

Defendant’s final contention is that he is entitled to a new sentencing hearing. Citing People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, he argues that the trial court may have been influenced by the convictions which we have found necessary to reverse, and that the remaining sentences may have been improperly enhanced as a result. In Alejos, the supreme court ordered a new sentencing hearing because the record established that the trial judge expressly referred to and improperly relied on a factor which served as the basis for a conviction which was subsequently reversed in imposing sentence on the remaining conviction.

Defendant in this case does not point to anything in the trial court’s remarks, nor from our review of the transcript have we found anything, to support his hypothesis. The court made no specific reference to the number of convictions or the nature of those which have been reversed. In imposing sentences, the trial judge noted that defendant committed the crimes against his former girlfriend out of anger at her decision to sever their relationship. The judge also remarked upon the nature and extent of the “branding” of T.W. by defendant. The judge then concluded that this was not a case in which minimum sentences were appropriate, as the defense requested; but he also declined to impose extended terms, as sought by the State, or even the maximum allowable terms. Rather, he imposed concurrent sentences of 12 years, a term 18 years less than the maximum for Class X felonies (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1) of which aggravated criminal sexual assault is one. The decision of the sentencing judge will not be disturbed absent a showing that it was an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882), which we do not find in this case.

In accordance with our rulings herein, the judgment of the trial court is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

JIGANTI, P.J., and LINN, J., concur.