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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD RASMUSSEN, Defendant-Appellant.
    Second District
    No. 2—91—0117
    Opinion filed August 26, 1992.

      G. Joseph Weller and Sherry R. Silvern, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford, and Joan M. Kripke, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Donald Rasmussen, was convicted after a jury trial in September 1990 of the offenses of (1) criminal fortification of a residence (Ill. Rev. Stat. 1989, ch. 38, par. 19—5); (2) unlawful use of a weapon by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1); (3) possession of a firearm without an owner’s identification card (Ill. Rev. Stat. 1989, ch. 38, par. 83—2); (4) possession of cocaine (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b)); (5) possession of cannabis (Ill. Rev. Stat. 1989, ch. 561/2, par. 704(b)); and (6) possession of a hypodermic needle or syringe (Ill. Rev. Stat. 1989, ch. 38, par. 22—50). He was sentenced in January 1991 to concurrent terms of (1) five years’ imprisonment for criminal fortification of a residence; (2) three years’ imprisonment for unlawful use of a weapon by a felon; (3) two years’ imprisonment for possession of cocaine; (4) six months in jail for possession of cannabis; and (5) 60 days in jail for possession of a hypodermic needle.

Five issues are raised on appeal, four of which deal with the criminal fortification of a residence charge: (1) whether the criminal fortification of a residence statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) is unconstitutionally vague; (2) whether that statute violates due process as an unreasonable exercise of the State’s police power; (3) whether the indictment as to defendant’s violation of that statute was fatally defective; (4) whether the State proved the elements of the offense of criminal fortification of a residence beyond a reasonable doubt; and (5) whether the State proved the elements of unlawful possession of a weapon by a felon beyond a reasonable doubt. We affirm.

Facts

Ten witnesses testified at the three-day trial in September 1990. Detective Bruce Olson of the Rockford police department testified that he and eight other officers went to 816 Fitch Road in Rockford at 12:30 p.m. on April 26, 1990, to execute a search warrant. Olson stated that all the officers were dressed in navy blue rain jackets, with the word “police” stenciled across the back in large letters, police patches on the top of both sleeves, and a badge on the upper right torso. Olson described the building at that address as a two-story building with a garage on the first floor and an apartment above the garage. There was an interior stairway that led to the apartment. The officers ran up the stairway yelling “police; search warrant.” After 15 to 20 seconds, the officers at the top of the stairs began beating at the door with a 55-pound, concrete-filled battering ram.

Olson and Detective Russell Nelson, also with the Rockford police department, were on the stairs trying to look into the apartment through a window. The window had a covering on the inside and the officers could not see in. When the officers heard running inside, Nelson smashed the window with his baton, tearing down the curtain in the process. Through the window, Olson saw a shirtless man standing seven feet from him and holding a pistol. Nelson testified that the man had the pistol pointed down and away from the officers. Olson leaned into the window with his shotgun and yelled to the man, whom Olson identified to be defendant, to drop the gun.

According to Olson and Nelson, defendant threw the pistol toward a couch in the apartment and out of view of the officers. Defendant then dove in that same direction. Ten to fifteen seconds later, defendant raised his empty hands and held that position for another 5 to 10 seconds. Olson testified that once the door gave way, Officer Marlin Peterson rushed in and began struggling with defendant. Olson entered the apartment, ran to where he thought the pistol was and unloaded the weapon. He found another magazine of bullets in a nearby hole in the wall. Olson then replaced the weapon and magazine in the position he found them near the hole in the wall by the floorboards. Deputy Arthur Blewett of the Winnebago County sheriff’s department identified a photograph that he took of the weapon and magazine in that position.

Detective Olson testified that he saw another man in the apartment when he entered through the door. The man was lying on the floor, stomach side down. Nelson stated that he did not see the other man until he came into the apartment. The other man was handcuffed and later released before the officers brought defendant to the police station.

Officer Blewett testified that he was standing on the staircase landing while Detective Steve Olson of the Rockford police department started hitting the door with the battering ram. Blewett stated that the whole side of the house was moving “like an accordion” as Olson hit the door 12 to 15 times. Blewett stated that he could see in a window at the top of the stairs and saw a shadow go past the window. Steve Olson stated that he became winded while hitting the door and gave the battering ram to Officer John Versetti, who hit the door another 10 times. Olson and Versetti then hit the door with their shoulders, causing the door to give way. The officers stepped over a broken 2 by 4 board as they rushed into the apartment.

Blewett opined that the reason it took so long to break through the door was because there were brackets holding the 2 by 4 board across the door frame. The brackets were bolted through the wall. Photographs were introduced into evidence showing two brackets on each side of the door for a total of four brackets, each bracket being secured by three bolts through the wall. Blewett also stated that the door was secured with a dead-bolt lock, which he identified in one of the photographs.

Officer Blewett stated that several officers had to subdue defendant, who was thrashing, kicking and screaming. Defendant was handcuffed and his legs were secured with plastic flexicuffs. Blewett stated that defendant continued to kick his legs so the officers fastened his handcuffs to his leg flexicuffs.

Officer Blewett testified as to several items he found or photographed in defendant’s apartment, including the gun and ammunition, a triple beam scale, a small wood box containing a bag filled with a green leafy substance, a plastic bag with white powder, several pieces of magazine pages which were folded up and contained a white powder, and various syringes. Blewett also stated that he found a pill bottle and a plate which had a white powdery residue on it in the kitchen sink. Blewett identified a color photograph showing the plate in the sink, which was full of water that appeared white.

Edward McGill, a forensic scientist with the Illinois State Police, testified that the white powder in the plastic bag weighed 1.4 grams and tested positive for cocaine. The green leafy substance in the wood box weighed 3.1 grams and tested positive for cannabis.

Detective Joseph Vincere of the Rockford police department testified that he was present when the police executed the search warrant on defendant’s apartment. After the other officers broke into the apartment, he tried to read the search warrant to defendant as he was thrashing about. Vincere saw defendant again at the police station, where defendant was handcuffed to a bench. As Vincere walked past defendant, defendant asked why the officers were after him and what the charges were. Vincere told him the charges. Defendant told Vincere that he did not own the gun. Defendant also denied selling drugs and told Vincere that the drugs he had were for personal use only.

At the close of the State’s case, defendant made a motion for a directed verdict and to dismiss the criminal fortification of a residence charge because the statute was unconstitutionally vague. The court denied defendant’s motions.

For the defense, Rick Winkler testified that he knew defendant since February 1990 and was at defendant’s apartment on April 26 prior to the police arriving. Winkler stated that he and defendant were talking and getting high on cocaine earlier that day. When the police arrived, the officers shouted from the staircase and pounded on the apartment door. When the shotgun barrel came through the window, Winkler fell to the floor and stayed there the entire period that the police were in defendant’s apartment. Winkler testified that defendant did not have a gun in his hands and that Winkler did not know who the recovered pistol belonged to.

Winkler stated that when the police officers rushed in, they began “pounding” on defendant and continued hitting defendant after he was subdued. As to the 2 by 4 board across the apartment door, Winkler stated that defendant placed the board across the door as a “lock” since there was no latch on the door. Winkler stated that the 2 by 4 board kept the door closed and prevented the door from swinging open.

Michael Clark testified that the recovered pistol belonged to him. Clark had lived with defendant during April 1990 and was living there on April 26. Clark stated that he had purchased the pistol earlier that day or the day before and, without defendant’s knowledge, had hidden the pistol in the hole in the wall near the floorboards. Clark testified that defendant kept a padlock on the door to the garage. According to Clark, when defendant was home, the garage door padlock was unlocked, and there was no lock on the second-floor apartment door.

Defendant testified in his own defense. Defendant admitted that he and Winkler had been using cocaine on April 26. He stated that they had used about a half of a gram and that he was still feeling some of the effects of the drug when the police arrived. Defendant admitted that a pellet gun was in plain view on a table when the police arrived.

Defendant’s testimony regarding the padlock on the first-floor garage door and the 2 by 4 board across the second-floor apartment door paralleled that of Winkler and Clark. Defendant stated that the only way he could lock his apartment door when he was home was by using the 2 by 4 board. He denied that the purpose of the 2 by 4 board was to keep police officers out of his apartment.

Defendant described a square opening in the upper portion of his apartment door. The opening used to have a plexiglass insert, but defendant covered the opening with a used metal street sign for security reasons. As was evident from the photograph taken by the police after they entered the apartment, the metal piece became dislodged from the door leaving the opening exposed.

According to defendant, when the officers came to the door, he ran to the kitchen and dumped some cocaine from the pill bottle into the kitchen sink and then ran back to the front room of the apartment. Defendant stated that he did not know of Clark’s gun until 15 or 20 minutes after the police arrived when one of the officers said “armed violence,” “we got armed violence because they found a gun.” Defendant thought that the only gun in the apartment was a pellet gun on a table in the living room. He had seen Clark and the gun that Clark had bought the night before, but did not know that Clark had hidden the gun in the apartment.

Defendant stated that when Officer Peterson came through the apartment door, Peterson grabbed defendant by the hair and threw him onto the bed. Defendant testified that officers hit him in the head and back, and one officer hit him in the face after he had been secured with handcuffs and flexicuffs. Various photographs of defendant’s black eye and body wounds were introduced into evidence. Defendant admitted that the bag of cannabis was his, but only for personal use. He also admitted that the cocaine he dumped in the sink was his, for personal use only, but did not recall any plastic bag of cocaine being in his apartment.

The parties stipulated that defendant did not have a firearm owner’s identification card and that he was previously convicted of a felony in 1982. After hearing closing arguments and instructions, the jury found defendant not guilty of armed violence and possession of cocaine with the intent to deliver. The jury found defendant guilty of the remaining charges.

Defendant filed a motion in arrest of judgment, again arguing that the criminal fortification of a residence statute was vague and unconstitutional. He also argued that he was not proved guilty beyond a reasonable doubt of the unlawful use of a weapon by a felon charge. The trial court denied the motion.

The trial court sentenced defendant on January 18, 1991. No sentence was imposed for defendant’s failure to have a firearm owner’s identification card. The court explained that the unlawful weapon sentence would cover both weapon charges. Defendant filed this timely appeal.

IS THE CRIMINAL FORTIFICATION STATUTE UNCONSTITUTIONALLY VAGUE?

At issue in this case of first impression is whether the recently enacted criminal fortification of a residence statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) is unconstitutionally vague. The statute reads:

“(a) A person commits the offense of criminal fortification of a residence or building when, with the intent to prevent the lawful entry of a law enforcement officer or another, he maintains a residence or building in a fortified condition, knowing that such residence or building is used for the manufacture, storage, delivery, or trafficking of cannabis or controlled substances as defined in the Cannabis Control Act [Ill. Rev. Stat. 1989, ch. 561/2, par. 701 et seq.] or Illinois Controlled Substances Act [Ill. Rev. Stat. 1989, ch. 561/2, par. 1100 et seq.].
(b) ‘Fortified condition’ means preventing or impeding entry-through the use of steel doors, wooden planking, crossbars, alarm systems, dogs, or other similar means.
(c) Sentence. Criminal fortification of a residence or building is a Class 3 felony.” Ill. Rev. Stat. 1989, ch. 38, par. 19—5.

Defendant argues that the above statute violates his constitutional guarantees of due process (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2) because the following italicized phrases are vague and indefinite: “to prevent the lawful entry of a law enforcement officer or another” in subparagraph (a) (emphasis added) (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(a)), and “steel doors, wooden planking, crossbars, alarm systems, dogs, or other similar means” in subparagraph (b) (emphasis added) (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(b)). Defendant included various hypothetical situations within his argument in an attempt to explain the vagueness of the statute. Defendant argues that his installing a 2 by 4 board across his apartment door was an innocent act aimed at “locking” his apartment rather than thwarting attempts by the police to enter the apartment. Defendant also seeks to portray himself as a mere drug user and argues that the legislature intended the criminal fortification statute to punish “those individuals who are involved in the drug milieu at a higher level than those who possess small amounts for personal use.”

The State responds that defendant has not met his burden of proving that the statute is unconstitutional since his argument is not supported by the legislative history, case law interpretation or the facts of this case. The State argues that the statute has three elements and that all three are met by the facts of this case. The State also posits that the allegedly vague areas of the statute that defendant points to do not apply in this case and are thus not at issue.

In People v. Fabing (1991), 143 Ill. 2d 48, our supreme court discussed due process in light of a claim that a statute was unconstitutionally vague:

“Due process requires that a statute must not be ‘so vague that men of common intelligence must necessarily guess at its meaning or application. [Citations.]’ (People v. Garrison (1980), 82 Ill. 2d 444, 453.) In addition, ‘the statute must provide sufficiently definite standards for law-enforcement officers and triers of fact that its application does not depend merely on their private conceptions. [Citations.]’ (Garrison, 82 Ill. 2d at 453.) To satisfy the requirements of due process, a statute’s prohibitions must be sufficiently definite when measured by common understanding and practices. [Citation.] However, as we are ‘[condemned to the use of words, we can never expect mathematical certainty from our language.’ Groyned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294, 2300.
We note that all statutes are presumed to be constitutional [citation], and the party challenging the statute has the burden of clearly establishing its constitutional infirmity [citation]. In considering a vagueness challenge to a statute, absent a contrary legislative intent, a court will assume ‘the words used in a statute have their ordinary and popularly understood meanings. [Citations.] In addition to the language used, consideration [will] also [be] given to the legislative objective and the evil the statute is designed to remedy. [Citation.]’ (People v. LaPointe (1981), 88 Ill. 2d 482, 499.)” Fating, 143 Ill. 2d at 53-54.

Furthermore, our supreme court has repeatedly held that “[a] defendant may be prosecuted under a statute without violating his right of due process if his conduct falls squarely within the statute’s proscriptions, even though the statute may be vague as applied to other conduct.” (People v. Taylor (1990), 138 Ill. 2d 204, 211; see People v. Rogers (1989), 133 Ill. 2d 1, 15.) In Rogers, the court concluded that defendant lacked standing to raise an unconstitutional vagueness argument since he was charged under precise terms of a statute rather than the terms he argued were vague. (Rogers, 133 Ill. 2d at 15.) The Rogers court also stated that defendant “ ‘may not pose hypothetical situations in which the statutory standards might conceivably be unconstitutionally vague.’ ” Rogers, 133 Ill. 2d at 15, quoting People v. Garrison (1980), 82 Ill. 2d 444, 456.

Applying those rules to the instant case, we initially question whether defendant has standing to raise a constitutional vagueness argument as to the criminal fortification statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5). Defendant was simply not charged under any of the terms or phrases that he argues are vague. As to the phrase in subsection (a) of the statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(a)), that reads “to prevent the lawful entry of a law enforcement officer or another,” defendant was charged with preventing the lawful entry of the nine police officers who executed the search warrant rather than under the phrase “or another,” which he argues is vague and undefined. Similarly, as to the phrase in subsection (b) of the statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(b)) that defines “fortified condition” as including the use of “steel doors, wooden planking, crossbars, alarm systems, dogs, or other similar means,” defendant’s use of a wood 2 by 4 board with four brackets to prevent access to his apartment fell within the terms “wooden planking” or “crossbars” rather than the phrase “or other similar means,” which he argues is vague and undefined. We therefore conclude that defendant lacks standing to challenge the alleged vagueness of the criminal fortification statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) by way of argument or hypothetical situation. See Taylor, 138 Ill. 2d at 211; Rogers, 133 Ill. 2d at 15.

Furthermore, even were we to consider defendant’s vagueness arguments on the merits, we do not believe that he has met his “burden of clearly establishing [the statute’s] constitutional infirmity.” (Fabing, 143 Ill. 2d at 54.) The phrase “or another” in subsection (a) of the statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(a)) implies someone who has a legal right to be in the residence or building and is not so obscure that people of “ ‘common intelligence must necessarily guess at its meaning or application.’ ” (Fabing, 143 Ill. 2d at 53, quoting Garrison, 82 Ill. 2d at 453; see Rogers, 133 Ill. 2d at 15 (the court concluded that the phrase “other than a lawful purpose” was not unconstitutionally vague).) Likewise, the phrase “or other similar means” in subsection (b) of the statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(b)) implies the use of building materials or security systems similar to those listed and is not unconstitutionally vague. (Fabing, 143 Ill. 2d at 53; Rogers, 133 Ill. 2d at 15.) We conclude that defendant has failed to establish the constitutional infirmity of the criminal fortification of a residence statute (Ill. Rev. Stat. 1989, ch. 38, par. 19-5).

DOES THE CRIMINAL FORTIFICATION STATUTE VIOLATE DUE PROCESS?

At issue is whether the criminal fortification of a residence statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) violates due process because it constitutes an unreasonable exercise of the State’s police power.

Defendant argues that the statute is an unreasonable exercise of police power because while the statute was, according to defendant, enacted to punish “large-scale drug dealers, manufacturers and traffickers” who fortify their “drug houses, drug storage facilities and manufacturing plants,” he was merely someone caught with a small amount of drugs that he kept for personal use. The State responds that the statute is a reasonable exercise of police power since it seeks to punish those in the drug world, such as defendant, who endanger law enforcement officials by actively preventing or impeding their legal entry into a building.

Under the State’s police power, the legislature has the discretion to prescribe penalties for defined offenses. (People v. P.H. (1991), 145 Ill. 2d 209, 233; People v. Morris (1990), 136 Ill. 2d 157, 161.) “However, that power is tempered by constitutional limitations which prohibit deprivation of liberty without due process of law.” (P.H., 145 Ill. 2d at 233.) The well-accepted test in determining whether the legislature has properly exercised its power is whether the statute is reasonably designed to alleviate the dvils which the legislature has determined to be a threat to the public health, safety and general welfare. (P.H., 145 Ill. 2d at 233; Morris, 136 Ill. 2d at 162; Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.) In construing a statute, it is instructive to consider relevant statements by legislators concerning the proposed law. Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 555.

The evils that the legislature was concerned about when it enacted the criminal fortification statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) are illustrated by briefly reviewing some of the floor debate in the Illinois legislature over the measure:

“[Representative] Petka: *** This Amendment was drafted by the State’s Attorney of Will County in connection with a series of problems that he perceived in connection with the execution of search warrants. *** The reason for this Amendment and the reason for this type of Bill is very simple. A number of years back when I was a state’s attorney, we had a drug house in Joliet, unfortunately very similar to other establishments like this in the metro areas throughout the State of Illinois. And this particular drug dealer was able at various intervals to basically deter police action against a drug storehouse that he maintained there. And it became necessary on one occasion for a...an undercover agent to risk his life by literally using a tow truck to pull off the door and part of the wall collapsed simply to get into this place. We think that...and during that process all the drugs disappear, so there’s no criminal offense. And that’s what this Bill has been mainly aimed at and that’s why I support this Amendment.
* * *
[Representative] Novak: *** Now I realize in certain areas in the City of Chicago and all over this state in urban areas and other areas, rural areas for that fact, that bars are put on windows for security reasons. This [measure] has no intent to deter people from doing that. What we’re trying to do is simply give our law enforcement people some additional tools to go into situations where they...where they have the legal justification to come in and make the arrest. Now, if I’m a law enforcement officer and I know that a building or an apartment is barricaded and we have...we know through the search warrant that’s been approved by the judge that articles, contraband and other drug paraphernalia are there, we’re going to go into that place and make the arrest. We’ve had...this whole Bill arose out of a situation in the City of Decatur and as Representative Petka has indicated, the City of Joliet in Will County has had problems. And we even have a problem in my home town in Kankakee, two blocks from our courthouse where our police officers are virtually afraid to go in this apartment building, it looks like Fort Apache. So we’re just...what we’re trying to do is give law enforcement some additional tools, reasonable tools we believe, to go in and make the arrest.” 86th Ill. Gen. Assem., House Proceedings, June 16, 1989, at 78-80 (statements of Representatives Petka and Novak).
“[Representative] Novak: *** [This measure] developed out of a situation that occurred in the City of Decatur. We’ve also had problems with the situation with drug houses, crack houses ***. The Criminal Code does not allow for a penalty such as that. And as the Bill progressed through the Judiciary II Committee, we refined the definition of a fortified drug house with the advice and consent of the Illinois State Bar Association and that Amendment tightened up the definition ***. I think it’s a good piece of Legislation. It’s a phenomenon that has developed in the urban areas all over the state and also all over the country. You’ve read stories in Time magazine about busting the crack houses in Los Angeles and the crack *** fortified drug houses where those nefarious individuals manufacture drugs and sell...sell marijuana and other invidious drugs that are hurting our kids and destroying our society. So I think it’s a necessary tool that we give to our police agencies around the state to fight these people that are doing...that are perpetrating these crimes.” 86th Ill. Gen. Assem., House Proceedings, June 20,1989, at 169 (Statements of Representative Novak).

Plainly, the legislature intended to punish those in the drug world who impede or endanger law enforcement personnel who are making a valid entry into a building. We are not persuaded by defendant’s arguments that the legislature acted unreasonably when it enacted the criminal fortification statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5). The legislature defined “fortified condition” as we discussed earlier and then made it a Class 3 felony to maintain a residence or building in a fortified condition with the intent to prevent the lawful entry of a law enforcement officer or another, knowing that such a residence or building is used for the manufacture, storage, delivery, or trafficking of drugs. (Ill. Rev. Stat. 1989, ch. 38, par. 19—5.) Had the legislature intended that this statute be targeted solely at large-scale drug dealers, which defendant posits but with which we do not agree, language could have been included identifying the minimum amount of drugs in the building that would trigger this statute. We conclude that the criminal fortification statute was reasonably designed to alleviate the evils which the legislature has determined to be a threat to the public health, safety and general welfare. Defendant therefore suffered no deprivation of constitutional due process when he was convicted under the statute since the statute was a reasonable exercise of the State’s police power.

WAS THE CRIMINAL FORTIFICATION INDICTMENT FATALLY DEFECTIVE?

At issue is whether the indictment of defendant for the criminal fortification of a residence offense (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) was fatally defective.

Defendant contends that the indictment did not specify what particular fortification—the 2 by 4 board on the apartment door, the dead-bolt lock on the apartment door or the padlock on the garage door—triggered the criminal fortification charge and subsequent conviction. Defendant claims that as a result he could not prepare an appropriate defense and the conviction will not bar a future prosecution by the State, citing section 111—3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111—3(a)). Section 111—3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111—3(a)) requires, inter alia, that an indictment: (1) state the name of the offense; (2) cite what statutory provision has been alleged to have been violated; and (3) list the nature and the elements of the offense that is charged. See People v. Nelson (1991), 210 Ill. App. 3d 977, 980.

The State responds that the language in the indictment, which tracks the language of the criminal fortification statute, clearly apprised defendant that the charge was based on the 2 by 4 board across his apartment door.

Our analysis is guided by the Illinois Supreme Court’s discussion in People v. Thingvold (1991), 145 Ill. 2d 441, where the court distinguished the two standards of review that a court of review should apply when an indictment is challenged on appeal:

“When an indictment or information is attacked for the first time on appeal, it is sufficient that the indictment or information ‘apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.’ [Citations.] In other words, the appellate court should consider whether the defect in the information or indictment prejudiced the defendant in preparing his defense. If, however, the information or indictment is attacked before trial, *** the information must strictly comply with the pleading requirements of [section 111—3(a) of] the Code of Criminal Procedure of 1963 [Ill. Rev. Stat. 1989, ch. 38, par. 111—3(a)].” Thingvold, 145 Ill. 2d at 448.

We note that defendant first objected to the indictment halfway through the trial, at the close of the State’s case in chief, when he filed a motion to dismiss the criminal fortification of a residence count. Defendant failed to object to any alleged defect in the indictment prior to trial. For example, defendant could have filed a bill of particulars prior to trial as a means of obtaining further information concerning the criminal fortification charge against him. (Thingvold, 145 Ill. 2d at 464 (Miller, C.J., dissenting, joined by Bilandic, J.).) We will therefore apply the less strict standard of review, rather than determine whether the indictment strictly complied with section 111—3(a) (Ill. Rev. Stat. 1989, ch. 38, par. 111—3(a)).

The indictment, filed on May 9, 1990, reads:

“That on the 26th day of April, 1990, in the County of Winnebago and State of Illinois, DONALD E. RASMUSSEN committed the offense of CRIMINAL FORTIFICATION OF A RESIDENCE, in that he, with intent to prevent the lawful entry of law enforcement officers, maintained his residence at 816 Fitch Road, Rockford, Illinois, in a fortified condition, knowing that said residence was being used for the storage or delivery of cannabis or cocaine, in violation of Paragraph 19—5, Chapter 38, Illinois Revised Statutes.”

It is apparent from the trial record that defense counsel treated the above indictment as charging a violation of section 19—5 (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) based on defendant’s use of a 2 by 4 board and brackets to secure his apartment door. Defendant and the two defense witnesses testified extensively concerning why defendant used a 2 by 4 board to secure his apartment. They all explained that, since the dead-bolt lock on the apartment door did not work, defendant used the 2 by 4 board to “lock” his apartment when he was home. Defendant specifically denied that the 2 by 4 board was intended to keep police officers out of his apartment.

We are not persuaded by defendant’s arguments that the indictment was insufficient in that it did not apprise him of which fortification—the 2 by 4 board, the dead-bolt lock or the padlock—triggered the indictment. The indictment contains the phrase “fortified condition,” which is defined in subsection (b) of the statute as meaning “preventing or impeding entry through the use of steel doors, wooden planking, crossbars, alarm systems, dogs, or other similar means.” (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(b).) Defendant and his two witnesses testified that the padlock on the ground-level garage door was unlocked whenever defendant was home, such as when the search warrant was executed, and that the dead-bolt lock on the second-floor apartment door was broken. Therefore, the 2 by 4 board was the only viable means of “impeding entry” and easily falls within the meaning of “wooden planking” or “crossbars” in subsection (b) of the statute. We conclude that the indictment was of sufficient specificity to apprise defendant that he was being charged with criminal fortification of a residence based on the presence of the 2 by 4 board across his apartment door and to allow him the opportunity to prepare a defense.

This leaves for determination the question whether the indictment and subsequent conviction would be sufficient to plead in bar of a future prosecution. The indictment alleged the date and place of the commission of the offense. Furthermore, the record in this case shows that the criminal fortification of a residence charge of which defendant was convicted is specifically identifiable and could be pleaded in bar of subsequent prosecutions. (See People v. Gilmore (1976), 63 Ill. 2d 23, 30 (prior prosecution on the same facts may be proved by resort to the record).) We conclude that there was no error in the criminal fortification of a residence indictment.

DID THE STATE PROVE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT OF THE CRIMINAL FORTIFICATION OFFENSE?

At issue is whether the State proved defendant guilty beyond a reasonable doubt of criminal fortification of a residence (Ill. Rev. Stat. 1989, ch. 38, par. 19—5). Defendant argues that the 2 by 4 board across his apartment door was a “lock” rather than a fortification and that the 3.1 grams of cannabis and 1.4 grams of cocaine seized from his apartment are amounts too small to fall within the reach of the drug activity portion of the statute. The State responds that any rational trier of fact could have found the requisite elements of the criminal fortification statute beyond a reasonable doubt.

A court of review will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of defendant’s guilt. (People v. Burrows (1992), 148 Ill. 2d 196, 224.) It is not this court’s function to retry a defendant when considering a challenge to the sufficiency of the evidence. (People v. Steidl (1991), 142 Ill. 2d 204, 226.) “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Frieberg (1992), 147 Ill. 2d 326, 360, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

The criminal fortification of a residence statute (Ill. Rev. Stat. 1989, ch. 38, par. 19—5) has three elements: (1) an intent to prevent law enforcement officers, or others with a legal right, from entering a residence or building; (2) fortification of the premises, as defined in the statute itself; and (3) knowledge that illegal drugs are being manufactured, stored, delivered or sold on the premises.

Our review of the record finds support for each element of the offense. We note that the jury heard defendant testify that after the police announced their presence and knocked, he ran to the kitchen sink to dispose of some cocaine. That action by itself supports a finding that defendant intended to prevent or impede police access to his apartment, since he chose not to answer the knock on the door.

As to the second element, we note that the jury heard testimony from various police officers concerning the execution of the search warrant at defendant’s apartment: that after announcing their presence and knocking, two officers took turns beating on the door with a 55-pound battering ram; that they stepped over a broken 2 by 4 board when they finally gained access to the apartment; and that they found four brackets, each secured by three bolts through the wall, that kept the 2 by 4 board in place across the door. That testimony supports a finding that defendant maintained his apartment in a “fortified condition.” The 2 by 4 board could be considered either “wooden planking” or a “crossbar” under the statutory definition of “fortified condition” (Ill. Rev. Stat. 1989, ch. 38, par. 19—5(b)).

Finally, we note that the jury heard testimony concerning the 3.1 grams of cannabis and 1.4 grams of cocaine seized by the police from defendant’s apartment. Defendant admitted dumping another amount of cocaine into the kitchen sink when he heard the police outside his apartment door. Such evidence satisfied the third element of the statute, that defendant knew that illegal drugs were being stored on the premises.

Defendant’s contention on appeal that the 2 by 4 board was merely a “lock” to keep his apartment door closed since the dead-bolt lock did not work was a question of fact for the jury. We note that Officer Blewett testified that the dead-bolt lock appeared to be working. The jury chose not to believe defendant or his two witnesses, since the jury convicted defendant on the fortification charge. Such a question of fact, one in particular that is based on witness credibility determinations, is within the particular province of the jury. (Frieberg, 147 Ill. 2d at 360.) We find no reason to disturb the jury’s finding in this regard.

We also are not persuaded by defendant’s argument that the amounts seized from his apartment do not fall within the reach of the criminal fortification statute. The legislature could have specified the minimum amounts of drugs that would trigger the statute, but chose not to. Were this court to accept defendant’s argument, we would be in the position of setting thresholds, completely arbitrary thresholds at that, for what amount of drugs would trigger the criminal fortification of a residence statute. Such a determination is not for the courts to make.

We conclude that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the three essential elements of the crime of criminal fortification of a residence beyond a reasonable doubt.

DID THE STATE PROVE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT OF UNLAWFUL POSSESSION OF A FIREARM BY A FELON?

The final issue is whether the State proved defendant guilty beyond a reasonable doubt of the offense of unlawful possession of a firearm by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1). Defendant argues that the State failed to prove his actual or constructive possession of the pistol recovered during the execution of the search warrant, pointing to inconsistent and improbable testimony by the police officers. The State responds that any rational trier of fact could have concluded beyond a reasonable doubt that defendant, a convicted felon, knowingly possessed a weapon. We will analyze this issue using the same reasonable doubt standard of review as we used with the previous issue.

The unlawful use of a weapon by a felon statute provides, in pertinent part:

“It is unlawful for a person to knowingly possess on or about his person or on his land or in his abode or fixed place of business *** any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(a).)

Therefore, to sustain a conviction, the State must prove beyond a reasonable doubt that (1) defendant knowingly possessed a firearm or firearm ammunition, and (2) that defendant has been convicted of a felony. (People v. Hammer (1992), 228 Ill. App. 3d 318, 323; People v. Rangel (1987), 163 Ill. App. 3d 730, 739.) The parties stipulated to defendant’s prior felony conviction, so all that remains at issue is whether defendant knowingly possessed a firearm.

Possession may be actual, based on direct evidence such as eyewitness testimony that defendant actually possessed the firearm. (See, e.g., People v. Bond (1989), 178 Ill. App. 3d 959, 966 (defendant admitted firing gun; additional proof supplied by three eyewitnesses).) Or possession may be constructive, based on circumstantial evidence. (See, e.g., People v. Akis (1976), 63 Ill. 2d 296, 298-99 (court affirmed unlawful use of weapons charge on grounds that police officer’s testimony that defendant passed an object to his passenger, who then dropped a gun out of the car, was “convincing and competent”); Hammer, 228 Ill. App. 3d at 323 (gun found in defendant’s marital closet).) This court stated in Hammer:

“[Constructive possession of a firearm by a felon is established by showing that defendant had knowledge of the weapon and that he exerted immediate and exclusive control over the area where the weapon was found. [Citation.] Although defendant’s mere presence near the weapon is insufficient, control over the location gives rise to the inference that defendant possessed the weapon, which inference is not undermined by the presence of others in the vicinity.” Hammer, 228 Ill. App. 3d at 323.

We believe the record in this case supports a finding that defendant either actually possessed or constructively possessed the pistol. We agree with the State that this issue depends on whether the jury chose to believe the testimony of the various police officers or the testimony of defendant and his corroborating witnesses. As such, defendant has a high burden since issues of witness credibility are within the particular province of the jury as the trier of fact. Frieberg, 147 Ill. 2d at 360.

Both Detective Bruce Olson and Detective Nelson testified that, as other officers were using the battering ram on the apartment door, they broke the glass in a stairway window and could see defendant holding a pistol. Nelson testified that defendant had the pistol pointed down and away from the officers. Olson testified that he leaned through the broken window with his shotgun and yelled for defendant to drop the gun. This testimony was contradicted by defendant’s and Winkler’s testimony. Defendant denied any knowledge that the gun was in his apartment, and Winkler denied that defendant was holding a gun when the police executed the search warrant.

However, both defendant and Winkler admit to getting high on cocaine shortly before the police arrived, which by itself casts doubt on their testimony. Furthermore, Winkler testified that shortly after the police announced their presence and attempted to gain access to the apartment, he quickly lay facedown on the floor. From that prone position, and because his attention was probably focused on the apartment door and window where police were loudly attempting to get in, his ability to observe and recall whether defendant was holding a gun is cast in doubt. We are not persuaded by defendant’s arguments that the police officers’ testimony is inconsistent or unconvincing. Any inconsistencies in their testimony were minor and not dispositive of this issue. We conclude that any rational trier of fact could have found that defendant actually possessed the pistol beyond a reasonable doubt, based on the eyewitness testimony of Olson and Nelson.

Assuming, arguendo, that the testimony of the police officers was insufficient to prove that defendant actually possessed the pistol, we believe that the record supports a finding that defendant constructively possessed the pistol. Disregarding Olson’s and Nelson’s testimony that they saw defendant with the pistol, we may still consider Olson’s testimony that, just prior to their gaining access to the apartment, defendant dove towards the corner of the room where the pistol was eventually found. In that comer, Olson found a loaded automatic pistol, which he emptied, and an extra magazine of bullets near a hole in the wall by the floorboards. Clark’s testimony that he owned the gun and that he hid it in defendant’s apartment is suspect since Clark testified that the gun was unloaded when he hid it in the wall, in direct contradiction to Olson’s testimony that the gun was loaded when he found it.

Defendant’s reliance on People v. Rangel (1987), 163 Ill. App. 3d 730, is misplaced. In Rangel, the defendant was convicted of the unlawful use of a weapon by a felon after a .22 caliber pistol was recovered from his car. (Rangel, 163 Ill. App. 3d at 733.) The appellate court affirmed, based on its finding “that the totality of the facts reflected in the record lead to a reasonable inference that defendant was in knowing possession of the weapon and was properly found guilty of the offense.” (Rangel, 163 Ill. App. 3d at 739.) The court noted that after the bench trial the trial judge stated that defendant had failed to rebut the presumption that arose from the facts presented that he was in constructive possession of the pistol recovered from his car, in large part because one of defendant’s key witnesses was not credible. Rangel, 163 Ill. App. 3d at 740.

We believe Rangel supports our finding here, that, based on the totality of the facts in the record, the State established that defendant was in constructive possession of the pistol recovered from his apartment. (See Hammer, 228 Ill. App. 3d at 323-24 (constructive possession of weapons found where guns were recovered from marital closet, and defendant’s wife and son denied using them); People v. Elam (1990), 197 Ill. App. 3d 8, 12-13 (constructive possession of weapon found where pistol was recovered from defendant’s girlfriend’s apartment, which defendant frequented and in which he sometimes slept).) We conclude that any rational trier of fact could have found that defendant was in constructive possession of the pistol recovered from his apartment beyond a reasonable doubt.

For the above reasons, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

McLAREN and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN JUSTICE McLAREN,

license: Public Domain

text:
    DIMPLE GILBERT, Special Adm’x of the Estate of Jack Gilbert, Deceased, Plaintiff-Appellant, v. IRVING FRANK, Defendant-Appellee (Sycamore Municipal Hospital, Defendant-Appellee).
    Second District
    No. 2—91—0898
    Opinion filed August 28, 1992.

      McLAREN, J., dissenting.

      Bernard R. Nevoral and David L. Cwik, both of Bernard R. Nevoral & Associates, Ltd., of Chicago, for appellant.
    Robert R. McWilliams, of Kostantacos, Traum, Reuterfors & McWil-liams, RC., of Rockford, and Franklin C. Cook, of Freeport, for appellee Sycamore Municipal Hospital.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Dimple Gilbert, acting as special administratrix for the estate of her late husband, Jack, filed an action for medical malpractice and wrongful death against defendants, Sycamore Municipal Hospital (hospital), and Irving Frank, M.D. Dr. Frank, who reached a settlement with plaintiff, is not a party to this appeal. The hospital moved for summary judgment on the basis that it was not vicariously liable for Dr. Frank’s alleged negligence because he was not an agent of the hospital. Plaintiff appeals from the order of the circuit court of De Kalb County granting the motion. The issue on appeal is whether summary judgment should have been denied because a material issue of fact existed as to whether the hospital could be held liable under the doctrines of apparent agency or agency by estoppel. We affirm.

The evidence submitted in connection with the hospital’s motion for summary judgment established the following facts. Jack Gilbert arrived by ambulance at the hospital’s emergency room at about 2:30 p.m. on April 8, 1981. He had experienced chest pains and pain in his left arm while lifting weights that morning. When he arrived at the hospital, Jack asked to be treated by Dr. Stromberg, a member of the hospital’s active staff who was not on call that day. Dr. Frank had been asked to cover the emergency room by Dr. Wassner, a surgeon who was on call that day. An emergency room nurse called Dr. Frank at home, and he arrived at the hospital a few minutes later.

After Jack arrived at the emergency room, he signed a form which stated in part as follows:

“The undersigned has been informed of the emergency treatment considered necessary for the patient whose name appears above and that the treatment and procedures will be performed by physicians and employees of the hospital. Authorization is hereby granted for such treatment and procedures.”

The hospital prepared the consent form which contained the above statement.

Dr. Frank had Jack undergo several tests including an electrocardiogram or EKG. The tests did not reveal any signs of heart disease or trouble. Dr. Frank ordered some pain medication for Jack and discharged him at 4:20 p.m. Jack died later that evening as a result of a myocardial infarction. An autopsy revealed that Jack was suffering from heart disease at the time of his death.

Marty Losoff was the hospital’s administrator at the time of the above events. Losoff testified as follows timing his deposition. The hospital was a full-service, acute care facility. Between 14 and 20 physicians, including Dr. Frank, were on the active staff. Active staff physicians were required to be on call in the emergency room when scheduled, although they sometimes arranged for backups to replace them.

Losoff further testified that the emergency room was not operated by an outside contractor; it was considered a function of the hospital. The emergency room nurses were hospital employees, and the hospital owned the equipment in the emergency room. The hospital’s emergency room committee reviewed emergency medical treatment rendered by physicians.

According to Losoff, patients in the emergency room would be treated by the physician who was on call unless a patient requested his or her own doctor and that doctor was available. The emergency room physicians had the authority to admit patients to the hospital. The hospital considered them to be independent contractors, however, because they billed the patients separately for their services. The hospital also billed emergency room patients, but not for the physician’s services. The hospital did not pay any salary to its active staff physicians. If the hospital administration did not approve of a physician’s conduct, a hospital representative would speak to the physician. Lo-soff acknowledged that the behavior of emergency room physicians could have an impact upon the hospital in a public relations sense. He also stated that he did not believe the hospital ever advised patients that the emergency room physicians were independent contractors.

The hospital submitted an affidavit from Losoff in support of its motion for summary judgment. The affidavit stated that the hospital did not pay Dr. Frank’s withholding taxes or provide him insurance, sick leave or vacations. Additionally, Dr. Frank determined his own work schedule and fee rates. According to the affidavit, Dr. Frank was not an agent or employee of the hospital; he was merely granted staff privileges.

In its motion for summary judgment, the hospital contended that it could not be held liable for the alleged negligence of Dr. Frank because he was not an agent or employee of the hospital. Plaintiff argued in her response that potential liability existed under the doctrines of apparent agency and agency by estoppel, thereby precluding entry of summary judgment. The trial court granted the motion, and plaintiff now appeals.

A motion for summary judgment should be granted only if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is a drastic means of resolving litigation, and it should be granted only if the movant’s right to such relief is free from doubt. Purtill, 111 Ill. 2d at 240.

The hospital initially argues that we should not consider the issue raised by plaintiff because count II of her complaint alleges that Dr. Frank was an agent of the hospital rather than an apparent agent or an agent by estoppel. In count II, plaintiff alleged that Dr. Frank treated Jack in the hospital’s emergency room on April 8, 1981, and that Dr. Frank was an agent and employee of the hospital at that time. Plaintiff further alleged in count II that Dr. Frank was guilty of several negligent acts or omissions relating to his treatment of Jack and that the hospital was liable for these acts or omissions of its agent and employee.

Although in their briefs the parties discuss apparent agency and agency by estoppel separately, the doctrine of apparent agency is based upon the doctrine of equitable estoppel. (Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278; Crittendon v. State Oil Co. (1966), 78 Ill. App. 2d 112, 115.) We therefore agree with the conclusions of the court in Northern Trust Co. that these doctrines are based upon the same elements, and there is no practical difference between them. (Northern Trust Co., 168 Ill. App. 3d at 278.) Accordingly, we consider apparent agency and agency by estoppel to be different labels applied to the same doctrine. We shall refer to this doctrine as apparent agency in the remainder of this opinion.

Pleadings should be construed liberally in order to achieve substantial justice. (Ill. Rev. Stat. 1989, ch. 110, par. 2—603(c); Champaign National Bank v. Illinois Power Co. (1984), 125 Ill. App. 3d 424, 428.) A pleading is not considered to be bad in substance if it reasonably informs the adverse party of the nature of the claim that he or she must meet. (Ill. Rev. Stat. 1989, ch. 110, par. 2—612(b); Champaign National Bank, 125 Ill. App. 3d at 428.) Bearing these principles in mind, we shall consider whether plaintiff’s complaint was sufficient to allege apparent agency.

An apparent agent is an individual who, whether authorized or not, reasonably appears to third parties to be authorized to act as the agent for another person or entity as a result of the actions of that other person or entity. (Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill. App. 3d 226, 232.) An apparent agency is an agency relationship. (See Lang, 222 Ill. App. 3d at 232-33.) Therefore we believe plaintiff’s allegation that Dr. Frank was the hospital’s agent could refer to either an actual or apparent agency.

Furthermore, precision pleading should not be required if knowledge of the pertinent facts is within the control of the defendant rather than the plaintiff. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 658.) In the case at bar, the hospital would have had knowledge about the nature of its relationship with Dr. Frank, but it is highly unlikely that plaintiff would have had access to this information when she filed her complaint. Therefore we do not believe it is unfair to the hospital to construe the allegation that Dr. Frank was its agent to be an allegation that he was either an actual or apparent agent. We conclude that plaintiff adequately alleged in count II that Dr. Frank was an apparent agent of the hospital and reject the hospital’s contrary contention.

On appeal, plaintiff does not challenge the trial court’s apparent conclusion in granting summary judgment that the evidence established conclusively that Dr. Frank was not an actual agent of the hospital. Her sole contention is that a genuine issue of material fact existed as to whether Dr. Frank was an apparent agent of the hospital. The hospital argues that the doctrine of apparent agency does not apply to the relationship between a hospital and a physician.

In general, there are two theories upon which recovery from a hospital may be based in a medical malpractice action. (Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 198.) The first is the existence of a principal-agent relationship between the hospital and a negligent physician; the second is the breach of a hospital’s duty to supervise and review the medical care administered to a patient. (Rohe, 203 Ill. App. 3d at 198.) The second of these theories is not implicated here.

The Appellate Court, Third District, has refused to extend liability to a hospital under the first of the above theories unless the physician was an actual agent of the hospital. (See Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 175; Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1016; see also Heubner v. Galesburg Cottage Hospital (1991), 215 Ill. App. 3d 129, 133-34.) The Appellate Court, First District, has held, however, that hospitals are liable for the negligence of physicians who are apparent agents of the hospital. See Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, 251; Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278-79; Sztorc v. Northwest Hospital (1986), 146 Ill. App. 3d 275, 278-79.

In support of its holding, the court in Uhr stated that, unless the patient has reason to believe that a treating physician in a hospital is an independent contractor, it is natural for the patient in seeking treatment to rely upon the reputation of the hospital. (Uhr, 226 Ill. App. 3d at 250.) The court felt that this was especially true in an emergency room context as a patient seldom knows who his or her treating physician will be. (Uhr, 226 Ill. App. 3d at 250.) A number of other jurisdictions have held that a hospital will be liable for the negligence of a treating physician who is an apparent agent even if the physician’s actual relationship to the hospital is that of an independent contractor. See, e.g., Paintsville Hospital Co. v. Rose (Ky. 1985), 683 S.W.2d 255, 257; Grewe v. Mount Clemens General Hospital (1978), 404 Mich. 240, 252, 273 N.W.2d 429, 432-33; Hardy v. Brantley (Miss. 1985), 471 So. 2d 358, 370-71; Adamski v. Tacoma General Hospital (1978), 20 Wash. App. 98, 111, 579 P.2d 970, 977.

We believe that the cases recognizing apparent agency in this context fail to take into account the unique nature of the relationships between physicians and patients and between physicians and hospitals especially in emergency situations. As the court pointed out in Greene, the treating physician directs and controls the treatment administered to an emergency room patient. (Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1015; see also Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 175.) Although a hospital’s medical staff often engages in a peer-review process, it is not realistic to expect the staff or the hospital administration to direct or control treatment to an individual emergency room patient especially when split-second decisions are required. (See Greene, 147 Ill. App. 3d at 1015.) This factor demands recognition of the independent relationship between a hospital and an emergency room physician and militates strongly against extension of a hospital’s vicarious liability to physicians who are not actual agents or employees of the hospital. 147 Ill. App. 3d at 1015.

Additionally, applying the doctrine of apparent agency in this situation would be contrary to the fundamental public policy of tort law that the tort-feasor be financially responsible to the injured party for damages resulting from his or her conduct. (Johnson, 160 Ill. App. 3d at 175.) For these reasons we conclude that a hospital may be held vicariously liable for the negligence of an emergency room physician only if the physician was an actual agent or employee of the hospital.

As the court pointed out in Greene, a hospital is still guilty of negligence if it knows or should have known that a physician is incompetent but allows the physician to practice in its facility. (Greene, 147 Ill. App. 3d at 1015; see also Pickle v. Curns (1982), 106 Ill. App. 3d 734, 739.) This would constitute a breach of the hospital’s duty to supervise and review patient care. (Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 198-99.) A hospital cannot be reasonably expected to insure that independent physicians practicing within the facility will never be negligent, however. (Pickle, 106 Ill. App. 3d at 739.) In our view, applying the doctrine of apparent agency in a case such as this would be a step toward the recognition of such a duty. We decline to take this step.

For the above reasons, the order of the circuit court of De Kalb County granting summary judgment to the hospital is affirmed.

Affirmed.

WOODWARD, J., concurs.

JUSTICE McLAREN,

dissenting:

I respectfully dissent. I disagree with two aspects of the majority opinion and therefore must respectfully dissent. First, I agree with the plaintiff that an issue of material fact exists because the consent form formulated by the hospital clearly states that the physician is an employee of the hospital. I therefore believe that reasonable minds could differ as to whether the physician was or was not an employee of the hospital. Although the physicians billed for their services separately and the administrator stated that the hospital did not withhold taxes and the like, these facts ought not be dispositive of whether there was an agency or apparent agency relationship. I believe that the factual matters raised in the pleadings, affidavits, depositions, and exhibits do not clearly demonstrate the absence of some form of agency relationship and preclude us from determining, as a matter of law, that summary judgment was proper.

Second, I disagree with the majority in its decision to exempt hospitals from the application of the legal principles of apparent agency and/or agency by estoppel.

The emerging trend of the law is to recognize that a hospital may be vicariously liable for negligent medical acts committed on its premises by health-care providers who are apparent or ostensible agents (Uhr, 226 Ill. App. 3d at 251 (and cases cited therein); Sztorc, 146 Ill. App. 3d at 278-79), or who are deemed agents by estoppel (see, e.g., Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278-79; Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 44-45 (estoppel must be shown by good-faith reliance on conduct of another which leads person to change his position for the worse)).

Of the other States that have considered the issue in recent years, the near-unanimous rule is that independent contractor status is not automatically a bar to a hospital’s vicarious liability for malpractice committed on its premises and particularly in the emergency room. See, e.g., Martell v. St. Charles Hospital (1987), 137 Misc. 2d 980, _, 523 N.Y.S.2d 342, 349-50 (and numerous cases cited therein); see also Jackson v. Power (Alaska 1987), 743 P.2d 1376, 1380, 1380 n.7 (and cases cited therein; court criticized Greene v. Rogers (1986), 147 Ill. App. 3d 1009, for its refusal to recognize apparent agency in tort actions for medical malpractice, but Greene court may have overlooked Sztorc, 146 Ill. App. 3d 275).

In reaching this conclusion, other jurisdictions have cited section 429 of the Restatement (Second) of Torts, which states: “One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.” Restatement (Second) of Torts §429 (1965); Martell, 137 Misc. 2d at_, 523 N.Y.S.2d at 350.

Still others cite section 267 of the Restatement (Second) of Agency, which states: “One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the cafe or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” (Restatement (Second) of Agency §267 (1958); Martell, 137 Misc. 2d at _, 523 N.Y.S.2d at 350; see also Jackson v. Power, 743 P.2d at 1380 (examining rules of both Restatements).) One of the common themes in these cases is that, when patients seek medical treatment at a hospital’s emergency room, they are unaware of the contractual relationship between the hospital and the physicians who provide medical services. The patients in this situation have looked to the hospital as the provider of medical services; the hospital has given the appearance that it is the provider of the medical services; and the patient has reasonably relied on that appearance. Martell, 137 Misc. 2d at _, 523 N.Y.S.2d at 350.

In Martell, the court went beyond recognizing the principle of apparent agency and concluded that sound public policy demanded that a full-service hospital should not be permitted to insulate itself contractually from acts of medical malpractice committed in its emergency room. The court reasoned that, even with knowledge that emergency room physicians were independent contractors, an individual requiring emergency room medical care, given a choice, would nevertheless opt for the emergency room of the hospital which that individual perceived to have the better reputation. It is the hospital's location and reputation which draw patients to its emergency room, as well as the exigencies of the moment, and, in this regard, the contractual relationship between the hospital and the emergency room physicians is irrelevant as a practical matter. Martell, 137 Misc. 2d at _, 523 N.Y.S.2d at 351-52.

Other courts, although recognizing vicarious liability of hospitals under apparent agency or agency by estoppel principles, have found that a hospital may also be held liable for the acts of independent contractors based on .the principle of the “nondelegable duty.” Under this principle, an acute care hospital may be held liable, as a matter of law, for negligence or malpractice committed by a physician on a patient who came to the hospital seeking emergency room services. This is so because the hospital, as a highly regulated, commercial institution, is charged by law with a nondelegable duty to provide nonnegli-gent health-care emergency services. Jackson v. Power, 743 P.2d at 1385.

Still other courts have premised liability on “corporate negligence.” This variant of the (direct) liability of a hospital for the malpractice of physicians on its premises, even where they are not agents or employees, is a doctrine under which the hospital may be held liable if it fails to uphold the proper standard of care owed to the patient, which is to ensure the patient’s safety and well-being while at the hospital. (See, e.g., Thompson v. Nason Hospital (1991), 527 Pa. 330, 339, 591 A. 2d 703, 707.) Under this doctrine, the hospital has a nondelegable duty which the hospital owes directly to the patient, and the injured party does not have to rely on and establish the negligence of a third party. The hospital has an independent duty, among others, to oversee all persons who practice medicine within its walls as to patient care. Nason Hospital, 527 Pa. at 339, 591 A.2d at 707, citing Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326.

Thus, in Nason Hospital, the Pennsylvania Supreme Court held that hospital staff members have a duty to recognize and report abnormalities in the treatment and condition of its patients, and, if the attending physician fails to act after being informed of such abnormalities, it is then incumbent upon the hospital staff member or employee to so advise the hospital authorities so that appropriate action might be taken. When there is a failure to report changes in a patient’s condition or question a physician’s order which is not in accord with standard medical practice and the patient is injured as a result, the hospital will be liable for such negligence where it has actual or constructive notice of a defect or procedure which caused the harm and the hospital’s negligence was a substantial factor in bringing about the harm. Nason Hospital, 527 Pa. at 342-43, 591 A.2d at 708-09.

Until recently, in Illinois, there have been two theories of liability permitting recovery of damages from a hospital in a medical malpractice case: (1) the hospital may be liable because of a principal-agency relationship between the hospital and the physician; and (2) the hospital may owe a duty, independent of any relationship between physician and patient, to review and supervise the medical care administered to a patient. (Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 198; Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 550, citing Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326.) In one case, the latter theory has been referred to as corporate negligence. (See Andrews v. Northwestern Memorial Hospital (1989), 184 Ill. App. 3d 486, 488, 491.) Thus, for example, a hospital has a duty to know the qualifications and the standard of performance of the physicians who practice on its premises. It is a breach of the hospital’s duty of care to its patients to permit a physician who the hospital knows or should have known is unqualified, or negligent, to practice on its premises. Rohe, 203 Ill. App. 3d at 199, citing Reynolds v. Mennonite Hospital (1988), 168 Ill. App. 3d 575, 578.

Under the rubric of corporate negligence, it may be said, for example, that a hospital has a duty to use reasonable efforts to assist the treating physician in obtaining consultation in a specialized area of treatment in accordance with established standards. (Hansbrough, 141 Ill. App. 3d at 550; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 716-18.) The theory of corporate negligence appears to stem from the following language in Darling:

“ ‘The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of “hospital facilities” expects that the hospital will attempt to cure him, not that its nurses or other employes will act on their own responsibility.’ (Fuld, J., in Bing v. Thunig, (1957) 2 N.Y.2d 656, 143 N.E.2d 3, 8.) The Standards for Hospital Accreditation, the state licensing regulations and the defendant’s bylaws demonstrate that the medical profession and other responsible authorities regard it as both desirable and feasible that a hospital assume certain responsibilities for the care of the patient.” Darling, 33 Ill. 2d at 332.

More recently, three different panels of the Appellate Court, First District, have recognized a third basis for the liability of a hospital on the basis of apparent agency or agency by estoppel, notwithstanding the hospital’s defense that the staff were independent agents. In Sztorc v. Northwest Hospital (1986), 146 Ill. App. 3d 275, in reversing summary judgment entered in favor of the defendant hospital, the court determined that, despite the hospital’s claims that its radiologists were neither its actual nor its apparent agents, there was a question of fact regarding the agency relationship of the defendants which precluded summary judgment. In Sztorc, plaintiff was injured as a result of overexposure to radiation in the radiation department located in the hospital. Operative facts considered included the following: (1) the radiology department was independently operating within the hospital and each physician in the department was not employed by the hospital but had staff privileges; (2) the radiology group collected its fees directly; (3) the equipment was owned by the department; and (4) the radiation department served both inpatients and outpatients, and there was no manner by which patients or the general public could differentiate between the department’s employees and those of the hospital itself.

The Sztorc court first noted that, under Darling, even absent an actual agency relationship, a hospital may be held liable for the acts of independent physicians practicing on the premises. After noting that several other States had adopted the doctrine of apparent agency, the court pointed out that the underlying rationale behind these decisions is that patients, who are generally unaware of the independent status of the treating physicians, should not be bound by secret limitations which are contained in private contracts between a hospital and a doctor. (Sztorc, 146 Ill. App. 3d at 278.) The court adopted the theory of apparent agency and concluded that the totality of the facts in the case would lead a normal person, such as the plaintiff, reasonably to believe that the radiology services being provided to her were being provided by the hospital and there was a triable issue of fact with respect to apparent agency precluding summary judgment. 146 Ill. App. 3d at 279.

In Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, a medical malpractice case involving a hospital setting, the court recognized the doctrine of apparent agency which rests on the doctrine of equitable estoppel; there is no practical difference between them. Citing 3 Am. Jur. 2d Agency §80 (1986), the court stated that, to prove apparent agency, one must establish (1) the principal’s consent to or knowing acquiescence in the agent’s exercise of authority; (2) the third person’s knowledge of the facts and good-faith belief that the agent possessed such authority; and (3) the third person’s reliance on the agent’s apparent authority to his or her detriment. Northern Trust Co., 168 Ill. App. 3d at 278.

Most recently in Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, after an extensive review of the cases from various jurisdictions including Illinois, the court recognized the expansion of hospital liability for medical malpractice committed on a hospital’s premises by health-care providers who are apparent or ostensible agents. Plaintiff has submitted this case as additional authority for her position. In Uhr, the court considered whether there was sufficient evidence to support a jury verdict against the hospital where the negligence of its “contract” anesthesiologist was alleged to have contributed to the death of the patient. The plaintiff proceeded on a theory of apparent agency. The Uhr court specifically declined to analyze the theory of liability on the basis of traditional rules of agency because that application has often led to unrealistic and unsatisfactory results from the standpoint of the injured party and from the standpoint of rationally apportioning fault. (Uhr, 226 Ill. App. 3d at 251.) The court noted that the delivery of the anesthesiologist’s services was intertwined with those of the hospital’s operating room employees.

The Uhr court noted that Northern Trust had stated that Illinois courts do not infer the element of detrimental reliance and the doctrine of equitable estoppel would not be applied without satisfaction of the requirement. The Uhr court rejected that requirement because it continues the charade which limits the liability of certain health-care providers. Uhr, 226 Ill. App. 3d at 249.

In his dissent in Uhr, Justice Rizzi urged a broader rule. He opined that, if it is established that a doctor negligently treated a hospital’s patient on the premises of the hospital, the hospital should be liable for the injury or death of the hospital’s patient if the injury or death was a proximate result of the doctor’s negligence and the doctor was authorized by the hospital to treat the hospital’s patient. The vagaries of apparent or ostensible agency or estoppel should not be issues. Justice Rizzi stated that the outmoded conception that a hospital does not undertake to treat the patient no longer reflects reality. Since the hospital is the central point of the compass around which its patients receive medical care by doctors functioning on its premises and the hospital’s costs of delivering care are factored into the amount that patients are charged by the hospital, it follows that a patient at a hospital is indeed the hospital’s patient and that the hospital is responsible for the negligence of a doctor who performs medical services on the hospital’s patient on the premises of the hospital. Uhr, 226 Ill. App. 3d at 280 (Rizzi, J., dissenting).

My review of the cases discussed above leads me to disagree with the majority in this case. My disagreement is based primarily upon section 267 of the Restatement (Second) of Agency. Furthermore, although there is merit to the holdings in the first district cases, I do not agree that apparent agency ought to be so broadly applied.

In this case there was a written statement made by the hospital as to the employer/employee relationship contrary to that of the claimed independent contractor relationship. If the hospital is allowed to say one thing and claim another, this court would be permitting the perpetration of a misrepresentation at best and a fraud at worst upon the patrons of this particular hospital.

I see no reason why hospitals should be allowed to escape liability in situations where the hospital represents independent contractors to be employees as was set forth in the consent form. The majority seems to be concerned with opening up a window of liability if the plaintiff was allowed to proceed on the merits. I would suggest that this window would never have opened if the hospital had indicated on the consent form that the doctor was an independent contractor, rather than an employee.

The hospital had and has the ability to limit its liability by properly disclosing the relationship between it and its independent contractors. To immunize the hospital under the alleged facts herein is taking a step backwards, in my mind, rather than taking a step at all in allowing an individual or entity to escape liability for its own “misrepresentations” of fact.

In conclusion, I believe section 267 of the Restatement of Agency ought to apply to this cause. I also believe the plaintiff has presented sufficient evidence arguably to sustain its case. Therefore, I would reverse the trial court’s grant of summary judgment in favor of the defendant.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. P.T., Defendant-Appellant.
    Second District
    No. 2—90—0924
    Opinion filed August 25, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and Beth Katz, of Evanston, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, P.T., appeals from the order of the circuit court of Lee County adjudicating him a sexually dangerous person under section 1.01 of the Sexually Dangerous Persons Act (Act) (Ill. Rev. Stat. 1991, ch. 38, par. 105—1.01). He was committed to the Department of Corrections in Menard, Illinois. On appeal, he contends the trial court erred by denying his motion in limine. In the motion, he sought to exclude from the jury all testimony regarding incidents in which he had sexual contact with animals 30 years prior to the charge. Since the testifying psychiatrists relied upon the incidents in formulating their opinions, the issue on appeal is whether the undue prejudice of the testimony outweighed its probative value.

On April 25, 1990, defendant was charged with aggravated sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(b)(l)) for molesting his three-year-old daughter, M.T. The State also filed a petition to commit defendant under the Act. Defendant was also charged with the battery of his sister-in-law, D.S. (Ill. Rev. Stat. 1989, ch. 38, par. 12—3), and criminal trespass to her property (Ill. Rev. Stat. 1989, ch. 38, par. 21—3).

Prior to the trial, defense counsel filed a motion in limine to exclude testimony regarding the earlier acts of bestiality. The trial court denied the motion on the ground that the acts were considered by the psychiatrists when they formulated their opinion of defendant’s condition.

At trial, K.T. testified that she was the wife of defendant and that he was the father of M.T. and their son J.T., who was five years old. On April 22, 1990, she saw defendant grab the chest of her sister-in-law, D.S. D.S., who was 26 or 27 years old, was married to K.T.’s brother.

Dr. Carl Aagesen testified that he was a board-certified psychiatrist. He examined defendant for about 1 hour and 15 minutes on June 11, 1990. In his examination, he used defendant’s answers and defendant’s admissions which appeared on the police reports. Aagesen stated that defendant suffered from a paraphilia, namely, pedophilia, and had a probable personality disorder of a schizoid type. Aagesen also found a possibility of mental deficiency because defendant may have had an IQ below 70, although Aagesen did not formally make that diagnosis because defendant had only a limited education.

Aagesen defined his terms. A paraphilia is a significant disturbance of sexual function where the impulses are discharged in channels that are not normal for human adults. If the object of the sexual energy is a child, the disturbance is labelled pedophilia; if the object of the impulse is an animal, the label is zoophilia. If there is no outward act, a paraphilia is diagnosed only if the subject is under repeated extreme emotional discomfort as a result of the urges. Without the mental discomfort, an actual act must be committed to form the basis of the diagnosis.

Aagesen also testified that he diagnosed defendant as having a schizoid personality disorder. The characteristics of the disorder are long-standing, normally beginning in childhood or adolescence. Defendant had a disorder in relating to other people such that he had a lifestyle of distant relationships without bonding. Defendant remained disconnected from the mainstream of human values, which implied a greater possibility for the emergence of deviant sexual behavior. Aagesen believed that defendant’s illness rendered him liable to having continuing occurrences of his impulses and thus he had a propensity to be sexually dangerous. Aagesen believed that children would remain the focus of defendant’s sexual attention and energy. Aagesen based his opinion regarding defendant’s propensity on the reports of sexual contact with his daughter and son, the animals and with his brother in adolescence. Defendant admitted to Aagesen that he had touched the genitals of animals and had had intercourse with a cow when he was an adolescent. Defendant denied that he had made contact with his son or daughter and called the allegations lies but admitted that it was possible that the events could have happened. Defendant also experienced hearing some words repeated intermittently for a period of three years, but this symptom was not specific to any diagnosis.

Dr. Werner Tuteur testified he was a board-certified psychiatrist, was the former clinical director of the Elgin Mental Health Center and was the former chief of the section of psychiatry at the American Academy of Forensic Sciences. On June 8, 1990, Tuteur examined defendant in a one- or two-hour session. Tuteur used defendant’s answers and the police reports in the examination. Tuteur determined that defendant had a borderline intellectual condition but was not quite mentally deficient. The mental deficiency eventually led to the molesting of children. For many years, defendant never had mature relationships with women because he was afraid of them and did not dare approach them. A man with defendant’s type of personality approached children because they are easier to approach. All his life, defendant endeavored to make contacts with people, and that endeavor resulted in contacts with people who were his intellectual and emotional equal, namely, children. Tuteur told defendant that the police reports suggested defendant molested 10 other children whose names defendant could not recall; defendant told Tuteur he would not do it again. Defendant also told Tuteur of a sexual contact with a brother in childhood.

Tuteur believed that the mental disorder had existed since defendant was in school, at least 30 years ago. The pedophilia had lasted for as long as the time when he started molesting children, but that time period was unknown. Tuteur believed that, if given the opportunity, defendant would again approach children in an indecent manner for sexual contact. Tuteur concluded that defendant was a sexually dangerous person as defined by the statute.

On cross-examination, Tuteur admitted that, because defendant’s intellect was borderline, he could easily be led by others in a conversation. Tuteur noted that people in custody try to give authorities the answers that they think the authorities wish to hear.

D.S. testified that she was a frequent guest in defendant’s home and hosted defendant and his family in her home. In March and April 1990, she witnessed defendant commit many indecent acts. On the evening of April 22, M.T. refused to go to bed. Defendant walked into the bedroom, and M.T. jumped into bed and pulled up the covers. Defendant pulled down the covers and put his hand in her underpants. He fondled her in the area of her clitoris and vagina. When D.S. protested, defendant said he was playing with M.T. because he wanted to see if she was wet. D.S. removed M.T. to the bathroom to change her. D.S. noticed that M.T.’s crotch was red and that a white creamy pus was coming from the vagina.

The next day, M.T. came into D.S.’s house to use the bathroom. She had urine running down her leg, and D.S. got a paper towel to help clean her. Defendant entered, grabbed the paper towel and put it down M.T.’s underwear. He removed the tissue and started to fondle M.T.’s clitoris and vagina with his middle finger. D.S. told defendant that he was sick and she would stop him, but defendant laughed and left with M.T.

D.S. also testified that, earlier that month, while defendant’s wife had taken J.T. to the bathroom, defendant put M.T. on his lap on the couch. He put her on his “privates” and bounced her up and down. They were fully clothed. Defendant said that “this is how you prime them to get them ready to f— them.” Another time, D.S. saw defendant stick a garden hose between his legs and tell J.T. to suck it; the water was not running. Later the same evening, defendant grabbed M.T.’s nipples and said “too bad they’re not big enough to suck.” Another time, D.S. saw defendant fondle M.T. when he changed her panties.

D.S. also related that, in January or February 1990, defendant told her that he had grabbed women at his workplace. He showed her his citations for these acts. D.S. also testified that several times defendant grabbed her own breasts. Once, while she was in the bathroom, defendant entered and grabbed D.S. by the crotch and breasts and said “he wanted to f — ” her.

Keane Hudson was a detective sergeant of the Lee County sheriff’s department. He interviewed defendant on April 24, which was just after D.S. reported the commission of the acts against M.T. Defendant admitted that he fondled her, but said he had not done it very often and only for about two months. Edwin Blake, another detective, made a video tape of one of the interviews, and the tape was played for the jury. With an agent of the Department of Children and Family Services, Blake interviewed defendant again. In the taped interview, defendant had denied sexual contact with J.T., but in the later interview Blake asked him if he had oral sex with his son, and defendant responded affirmatively. The act occurred two weeks prior to the interview. Defendant said he had oral sex with his brother 40 years ago. Defendant admitted rubbing his penis against M.T. to the point of ejaculation. Defendant told Blake that he had intercourse with a cow when he was 19 and that, when he lived in Oregon, he had a dog that would lick his penis. Defendant stated he had oral sex with about 10 other children but could not remember their names. He stated that he thought about grabbing the paper girl’s breasts, which she was just starting to develop.

Defendant’s father testified that, when defendant was 20, he received an injury while working on a farm. A hammer mill exploded and threw defendant into the air. His head landed in a grinder which chopped six holes in his skull. Defendant was unconscious and spent 31 days in the hospital. Since that time, defendant complained of headaches and had difficulty conversing. Defendant had some difficulty in understanding statements. He was reluctant to talk to people and often walked away from conversations.

During closing argument, the State’s Attorney claimed Dr. Aage-sen diagnosed defendant as having zoophilia. The State’s Attorney also made the following statements:

“He’s not able to control those [sexual urges] and he takes them out on whatever may be [the] most convenient object before him, adult, a little boy, little girl or animals. *** He has these propensities, these sexual urges that he cannot control and given the opportunity and the circumstances I submit to you that he again will fulfill those sexual urges on other people, young boys, young girls, animals and particularly on people who cannot defend themselves.
*** He is indiscriminate. Makes no difference to him, be it other adults, be [sic] young boy, young girl or animals, any one of those he will use to fulfill his sexual urges.”

Defendant did not object to the prosecutor’s arguments that defendant was likely to assault animals.

Following the closing arguments and instructions, the jury returned a verdict finding defendant to be a sexually dangerous person. The trial court denied defendant’s post-trial motion, and he appeals. Defendant contends that the evidence concerning the bestiality was not relevant to any issue before the jury and was unduly prejudicial and this fact was demonstrated when the prosecutor inflamed the jury with improper characterizations of the evidence.

Section 1.01 of the Act provides the following definition:

“All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons.” (Ill. Rev. Stat. 1989, ch. 38, par. 105—1.01.)

This language requires proof of three separate elements:

“(1) the existence of a mental disorder for more than one year; (2) the existence of criminal propensities to the commission of sex offenses; and (3) the existence of demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children.” (People v. Allen (1985), 107 Ill. 2d 91, 105, aff'd (1986), 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988.)

The purpose of the Act, which provides for a civil proceeding, is to provide treatment, not punishment, of sexually dangerous persons. Allen, 107 Ill. 2d at 99-101.

Defendant notes that the statute applies to prevent sex offenses against humans only and not animals. Moreover, defendant notes that the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 1—1 et seq.) does not criminalize sexual contact against animals. (Cf. Ill. Rev. Stat. 1991, ch. 8, par. 703.01 (cruelty to animals).) Prior to the enactment of the Code, the State prohibited “crimes against nature,” which included unnatural acts by humans with animals. The legislative history reveals that it was no longer necessary or desirable to proscribe unnatural acts with animals criminally unless such acts are covered by disorderly conduct or similar statutes, because, when such acts occur, they are usually brief, youthful experiments rather than part of a pattern of conduct that either contributes to or constitutes a significant degradation of the individual involved. (See Ill. Ann. Stat., ch. 38, par. 11—2, Committee Comments, at 175 (Smith-Hurd 1979).) Focusing public attention on the person who happens to be found in such an act serves no social purpose and may seriously impair the development of the accused to a normal life. See Ill. Ann. Stat., ch. 38, par. 11—2, Committee Comments, at 175 (Smith-Hurd 1979).

Defendant contends that the instances of bestiality were not relevant to any element of section 1.01 since the actions were neither offenses proscribed by law nor offenses directed against humans. Defendant also argues that the evidence should also have been excluded even though it was used to support an expert’s opinion. An expert may disclose the contents of otherwise inadmissible materials which form the basis of his opinion. (People v. Anderson (1986), 113 Ill. 2d 1, 11-12.) Absent a full explanation of an expert’s reasons, including the underlying facts and opinions, the jury has no way of evaluating the expert testimony. (113 Ill. 2d at 11.) However, a “trial judge, of course, need not allow the expert to recite secondhand information when its probative value in explaining the expert’s opinion pales beside its likely prejudicial impact or its tendency to create confusion.” 113 Ill. 2d at 12.

Defendant argues that the evidence had little probative value since a significant amount of time had elapsed as the event occurred nearly 30 years ago; defendant had been only an adolescent; the event appeared to be only an isolated incident; and it was not relevant to the diagnosis of pedophilia. Under the Act, a defendant must be tried on the basis of his current mental condition rather than his past condition. (People v. Studdard (1980), 82 Ill. App. 3d 736, 740.) Neither psychiatrist diagnosed defendant as being a zoophiliac, or an on-going zoophiliac, even if such a diagnosis were relevant under section 1.01. Thus, defendant contends the probative value in explaining the expert’s opinion was slight compared to the sensational nature of the evidence. Contrary to the State’s Attorney’s argument, there was no evidence that defendant was likely to molest animals.

However, evidence of prior sex acts may be admissible to prove that the defendant has a propensity to commit sex crimes and that his mental disorder has existed for more than one year. (Studdard, 82 Ill. App. 3d at 741.) Dr. Tuteur testified that defendant’s mental deficiency lasted for more than 30 years. Tuteur explained that defendant’s disorder prevented him from making contacts with adult human beings and he approached children because they were easier to influence. Defendant’s contact with the cow 30 years ago is consistent with this diagnosis that he did not know how to approach humans as his equals. Thus, the evidence was not used to support a conclusion that defendant was a zoophiliac but rather to support the conclusion that he had a long-standing mental disorder. While defendant denied to Dr. Tuteur that he had the animal contact, Tuteur could base his information on the admissions as related by Blake. Defendant also admitted the contact to Dr. Aagesen, and Aagesen specifically stated that his diagnosis was based on the defendant’s contact with his daughter and son, the animals, and his brother. Aagesen noted that defendant’s personality disorder was long-standing and probably began in adolescence. The disorder was a failure to relate to human beings evidenced by a lifelong pattern of distant relationships from human beings. Defendant’s isolation created a greater possibility for the emergence of deviant sexual values and behaviors. Thus, the contact with the animals was symptomatic of the diagnosis of the personality disorder and the long-standing nature of it. The probative value of the evidence was not so slight that its introduction should be excluded because of its inflammatory nature. See Anderson, 113 Ill. 2d at 12.

We also note that defense counsel could have requested a voir dire to interview the experts prior to the examination before the jury to determine whether they could state their opinions without reference to the animal contact. Instead, counsel stipulated that the doctors had in fact used the inflammatory evidence in reaching their conclusions. Even if the defendant had sought the examination, the evidence was relevant because it allowed the jury to determine that the doctors’ diagnoses were based on facts which occurred more than a year before the trial. Without the testimony regarding defendant’s adolescent behavior, there was little concrete evidence to support the conclusion that defendant’s mental disorder manifested itself prior to the two-month period before defendant’s arrest. Thus, the evidence was properly admissible. The jury had the right to know the facts, whether strong or weak, upon which the experts based their opinions, to evaluate those opinions. Anderson, 113 Ill. 2d at 11.

For the above reasons, the order of the circuit court of Lee County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.