author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORNE GRAY et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—90—1153, 1—90—3200 cons.
    Opinion filed August 12, 1993.

      Marv Raidbard, of Chicago, for appellant Lome Gray.
    Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant Steven Anderson.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Donald T. Lyman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a trial in the circuit court of Cook County, defendants, Lome Gray and Steven Anderson, were convicted of first degree murder (111. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(3)), armed robbery (HI. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)), and aggravated kidnapping (111. Rev. Stat. 1985, ch. 38, par. 10 — 2(aX3)). Defendants were tried separately but simultaneously before two juries.

Defendant Gray was sentenced to a 70-year term of imprisonment for the murder conviction, a 30-year term for the armed robbery conviction, and a 15-year term for the aggravated kidnapping conviction, all to be served concurrently in the Illinois Department of Corrections. Defendant Anderson was sentenced to a term of natural life imprisonment for the murder conviction, a 30-year term of imprisonment for the armed robbery conviction, and a 15-year term for the aggravated kidnapping conviction. The armed robbery term was to run consecutively to the murder sentence and the aggravated kidnapping term was to run concurrently with the armed robbery sentence.

On appeal, defendants collectively argue that (1) the State’s display of an evidence cart with the word “gangs” written on it, a notebook embossed with the words “Gang Prosecutions Unit” and the State’s eliciting defendants’ gang membership from a witness all violated a court order which prohibited the introduction of gang evidence; and (2) the trial court erroneously permitted a witness to testify that he refused to share his knowledge of the crime with police because he feared for his life, although there was no evidence that his life was threatened.

Defendant Gray individually asserts that the prosecutor made improper remarks during closing argument and to defense counsel, and that the trial court erroneously granted the State’s motion in limine excluding eyewitness testimony that made no identification of defendant Anderson in a lineup.

Defendant Anderson separately maintains that Detective Patrick Harrington’s testimony that defendant Gray identified him as the offender violated his rights under the confrontation clause because defendant Gray was unavailable for cross-examination; that the natural life sentence for murder is excessive in view of his age and lack of criminal history; and that the case should be remanded for a Batson hearing due to the State's discriminatory use of its peremptory challenges to exclude two African-American venire members from the jury and the trial court’s erroneous failure to require the State to provide race-neutral reasons for the exclusions.

We affirm.

The following pertinent facts were adduced at trial. Defendant Gray gave a signed, court-reported statement to an assistant State’s Attorney at the Area 4 police station on October 23, 1987, which was read into the record at trial.

The statement revealed that on June 13, 1986, while defendants Gray and Anderson were driving in a stolen Buick Electra, they saw the victim exiting a Pontiac Grand Am. Defendant Anderson jumped out of the car and attempted to force the victim into the Buick. Defendant Gray saw that defendant Anderson was having difficulty forcing the victim into the car, so he got out and wrestled with the victim. Defendant Anderson then pulled out a gun and forced the victim into the back seat of the Grand Am. Defendant Anderson took the car keys from the victim and drove to Roosevelt Road and Sacramento Avenue, where he stopped and picked up his friend, Vincent Brumley. Brumley got into the back seat with the victim.

They then went to a currency exchange on Kedzie and Ogden Avenues. Defendant Anderson and the victim walked up to a window to receive service while defendant Gray remained at the door. Defendant Gray stated that the victim gave something to the woman at the window in exchange for money, which he gave to defendant Anderson. The three men got back into the car and defendant Anderson gave defendant Gray $50 of the money obtained at the currency exchange.

Defendant Gray, defendant Anderson, and Vincent Brumley then drove the victim to an alley where defendants Gray and Anderson got out of the car with the victim. Defendant Gray stood by the door of the car while defendant Anderson walked to a nearby lot with the victim. Defendant Anderson told the victim to lie down on his stomach and, as the victim tried to escape, defendant Anderson shot him in the back of the head.

Sergeant Patrick Garrity testified that defendant Anderson told him he shot the victim in the head in a vacant lot near Fillmore Street and Pulaski Road. Defendant Anderson stated that he, defendant Gray and Brumley saw a man approach a white car and either defendant Gray or Brumley said “let’s get him.” The three men forced the victim into his car and they left the area.

They then searched the victim, found some cash and a paycheck in his pocket, and drove to a currency exchange on California Avenue and Roosevelt Road. As they were unable to obtain any money at that location, they proceeded to a pay telephone where the victim was forced to phone a currency exchange at Ogden and Kedzie Avenues to ensure their ability to cash the check there. They went to that currency exchange. Defendant Anderson stated that defendant Gray and Brumley went into the currency exchange with the victim where they succeeded in cashing the check.

They proceeded to Four Star Cleaners, where they took the money from the victim and divided it amongst themselves. They then drove to an alley which runs parallel to Fillmore Street and stopped near a vacant lot where defendant Gray ordered the victim out of the car. Defendant Gray passed a handgun to Brumley who, in turn, passed it to defendant Anderson. Defendant Anderson approached the victim, stood over him, and shot him once in the head. The three men then returned to the Four Star Cleaners lot, abandoned the car and separated. Defendant Anderson subsequently recounted the same sequence of events to Detective Harrington.

After a trial separately but simultaneously by two juries, both defendants were convicted of first degree murder, armed robbery and aggravated kidnapping. They were sentenced to terms in the Illinois Department of Corrections relative to these convictions.

On appeal, defendants collectively contend that the State violated a court order prohibiting the introduction of gang evidence when, in the courtroom, it displayed both an evidence cart with the word “gangs” written on it and a notebook embossed with the words “Gang Prosecutions Unit.”

During opening argument before defendant Gray’s jury, the evidence cart and notebook with the objectionable words were visible in the courtroom. After defense counsel was made aware of the gang references on both the cart and the notebook, she made a motion for a mistrial. The trial court denied the motion stating, “It is not all that obvious. The book is side by side with several other books and binders and folders and the word ‘gangs’ on the cart is written with a magic marker ***.” Subsequently, the prosecutor covered the notebook and the side of the cart.

We believe that although the display of the cart and the notebook may constitute error, defendant Gray has not demonstrated that the jury actually saw the complained-of references and, consequently, cannot establish prejudice. The record is completely devoid of evidence that the jury was erroneously influenced by such information. We believe the trial court was correct in its assessment of this issue and hold the error to be harmless. People v. Bass (1991), 220 Ill. App. 3d 230, 251.

Defendant Anderson similarly argues prejudice resulting from the same gang references. This is a curious proposition especially in light of the fact that his jury was never exposed to these references. The record evinces that, by the time defendant Anderson’s jury entered the courtroom, the situation had been cured as the prosecutor covered the objectionable words. Surely, this defendant’s jury’s lack of exposure to the gang references precludes any possibility of prejudice.

Relatedly, both defendants contend that Willie McCoy’s testimony regarding his presence at the gang crimes section of Area 4 police station violated a court order barring the introduction of gang evidence. Each defendant’s failure to include this issue in his post-trial motion waives its review on appeal. Preservation of an issue on appeal mandates both an objection at trial and the inclusion of such issue in the post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1041.

Additionally, regarding this issue, defendants maintain that Willie McCoy’s identification of them as gang members was prejudicial. In explaining why he did not want the police to attach his name to his statement, McCoy stated at trial: "I feared for my life because like I know the guys was in the gang and I had to live in the neighborhood.” Defendants point to this statement in support of their claim of error.

Upon examination of this statement on its face, it is unclear to whom McCoy refers when he says “guys.” This statement does not absolutely identify defendants as gang members, rather, in its context, it could reasonably be construed to make reference to individuals in McCoy’s community who are gang members. Its relation to defendant Anderson is suspect because McCoy was unaware that he was involved in the crime. His knowledge pertained solely to defendant Gray. We believe any connection between this statement and defendants is at best tenuous.

Moreover, defendants have given detailed statements to police implicating themselves in the crime, which were corroborated by additional witnesses and physical evidence. We believe, due to the overwhelming evidence of defendants’ guilt and the statement’s ambiguous nature, any error attributable to this issue is harmless.

Next, defendants collectively opine that Willie McCoy’s testimony was improper and prejudicial. McCoy testified that he hesitated to come forward because he feared for his life and that he only agreed to testify because the State promised to relocate him anonymously. Defendants base their contention of error on the fact that there were no specific threats against McCoy.

In detailing why he did not reveal any information to police regarding the crime until lVz years later, McCoy stated: “I was scared *** like I was scared for my life ***. I didn’t want to be talking to the police in front of peoples, *** because I was just afraid of my life *** like I didn’t want everybody to say *** this guy pointed out a murderer.”

This testimony explains McCoy’s lengthy delay in sharing his knowledge with police. Evidently, he did not want to be known in the community as one who helped the police locate a murderer. At no time did McCoy state or imply that defendants were in a gang or that they threatened him. His comments were, conversely, confined to the conditions on the west side of Chicago and the reasons behind his reluctance to come forward.

We do not believe that the trial judge abused his discretion in allowing Willie McCoy to testify as to his fear for his life, and further conclude that as his testimony was general in character, it was not reasonably attributable to defendants. Hence, we deem it nonprejudicial. Further, the record does not support any threats or intimidation of McCoy at the hands of defendants and any references to his fears were thus harmless.

Next, defendant Gray solely claims that he was prejudiced by both the prosecutor’s improper comments during closing argument and his personal attack against defense counsel.

Specifically, defendant Gray proffers that the prosecutor’s characterization of Ids theory of the case, calling it “so ridiculous that it isn’t even worthy of comment” and stating that “they [defense counsel] point to minutia, minute things in the case,” was improper and prejudicial. Defense counsel made an objection to these statements which was overruled by the trial court.

It is well settled that attorneys are afforded wide latitude in making closing argument. “ ‘The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge *** properly exercised the discretion vested in him.’ ” (People v. Morgan (1986), 112 Ill. 2d 111, 131, quoting People v. Smothers (1973), 55 Ill. 2d 172, 176.) After a careful review of the prosecutor’s remarks in context (People v. Bryant (1983), 94 Ill. 2d 514), they fail to constitute reversible error. In fact, the record indicates that the prosecutor’s comments related to aspects of defendant Gray's case based on properly presented evidence which is surely permissible. We do not believe the trial court abused its discretion in allowing such argument.

Relatedly, defendant Gray contends that comments made by the prosecutor during closing argument were intended to inflame the passions and prejudice of the jury. In closing, the prosecutor stated that a witness had to be moved because “we don’t want him to be dead” and alluded to the fact that there are family and friends of defendants who might inflict harm upon the witness. The trial court sustained defense counsel’s objection to the allusion.

Although the comment was improper, bearing no relevance to defendant Gray’s guilt or innocence, its impropriety does not automatically trigger reversible error. “[C]omments constitute reversible error only when they engender substantial prejudice against a defendant (see, e.g., People v. Tiller (1982), 94 Ill. 2d 303, 321), such that it is impossible to say whether or not a verdict of guilt resulted from those comments.” (People v. Henderson (1990), 142 Ill. 2d 258, 323.) We believe that the trial court’s sustaining of defense counsel’s objection and its admonition to the jury, “[n]either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded,” were sufficient to neutralize any potential prejudice against defendant Gray.

Additionally, defendant Gray asserts that the prosecutor’s statement during rebuttal argument, “you [the jury] get to decide whether you’re going to protect yourselves and your families and your community from Lome Gray and Steven Anderson and his kind,” prejudiced him. The trial court overruled defense counsel’s objection to this statement. Applying the substantial prejudice standard outlined above, we cannot say that the complained-of remarks were of such extreme magnitude as to have denied him a fair trial.

Defendant Gray cites other comments which he argues prejudiced him, but we will not review such remarks as they are waived on appeal. Preservation of an issue for review requires both an objection at trial and the inclusion of the issue in the post-trial motion. The failure to complete these necessary steps results in waiver of these issues. People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1041.

Next, defendant Gray maintains that the trial court’s grant of the State’s motion in limine, erroneously excluding eyewitness testimony which failed to identify defendant Anderson in a lineup, prejudiced him. Defendant Gray posits that the testimony of two eyewitnesses, Derrick Hendrix and Stephanie Morgan, was crucial to the establishment of his confession’s falsity. The trial court prohibited this testimony, characterizing it as both hearsay and irrelevant.

“ ‘The test for admissibility of evidence is whether it fairly tends to prove the particular offense charged’ (People v. Peter (1973), 55 Ill. 2d 443, 459), and whether what is offered as evidence will be admitted or excluded depends upon whether it tends to make the question of guilt more or less probable ***.” (People v. Ward (1984), 101 Ill. 2d 443, 455; see People v. Rodgers (1972), 53 Ill. 2d 207, 214-15.) It is the province of the trial court to determine the relevancy of evidence, and this determination will not be disturbed absent an abuse of discretion. {Ward, 101 Ill. 2d at 455-56.) Application of the preceding standards leads us to conclude that the excluded nonidentification testimony bears no relationship whatsoever to defendant Gray’s guilt. Further, defendant Gray’s description of the nexus between his confession and the nonidentification of defendant Anderson is extremely remote and we will not attempt to fill in any gaps here.

Next, defendant Anderson solely argues Detective Patrick Harrington’s testimony — that defendant Gray implicated him in the robbery and murder of the victim — violated his rights under the confrontation clause because defendant Gray did not testify at trial and was thus unavailable for cross-examination. Specifically, Detective Harrington stated that, while in an interview room at the police station, defendant Gray identified defendant Anderson as the individual involved in the crime he previously recounted to police.

“Confrontation errors *** do not automatically warrant reversal [citations], and the defendant’s convictions may therefore be affirmed if we are able to conclude that the error was harmless beyond a reasonable doubt [citation].” (People v. Johnson (1987), 116 Ill. 2d 13, 28; see People v. Miller (1992), 225 Ill. App. 3d 92, 103.) We do not believe that defendant Anderson was substantially prejudiced by any testimony given by Detective Harrington, particularly in view of the overwhelming and incontrovertible evidence of defendant Anderson’s guilt. As the outcome of the trial was unaffected by contended error, we find the error to be harmless beyond a reasonable doubt.

Next, defendant Anderson asserts that the natural life sentence he received was excessive in light of his age and lack of criminal history. We disagree.

In sentencing defendant Anderson, the trial court determined that aggravating factors were present to justify the imposition of a life sentence. The relevant statute provides:

“[I]f the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence defendant to a term of natural life imprisonment ***.” (111. Rev. Stat. 1985, ch. 38, par. 1005 — 8— l(lXb).)

The trial cotut explicitly found the presence of aggravating factors under section 9 — 1(b) which were sufficient to justify the natural life term imposed. Therefore, there is no error respecting the consistency of defendant Anderson’s sentence.

However, defendant Anderson claims that this statutorily permissible sentence was excessive. “[T]he trial court is *** the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight” and absent an abuse of discretion such a determination will not be overturned. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) The trial court found a “minimal amount of mitigation” and determined defendant Anderson’s acts to be “the type of heinous behavior that was contemplated by the Legislature when they passed the statute.” We find defendant Anderson’s sentence to be proportionate to the offense committed and accordingly find no abuse of discretion in the trial court’s sentencing of him.

Finally, defendant Anderson opines that this case be remanded for a Batson hearing, which would require the State to articulate race-neutral reasons for its use of peremptory challenges to exclude two African-American women from the jury.

In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court prohibited the use of peremptory challenges to exclude potential jurors solely based on race. Before a Batson violation can be established, however, it is incumbent upon defendant to demonstrate a prima facie case of racial discrimination in view of all the relevant circumstances. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; see People v. Evans (1988), 125 Ill. 2d 50, 63.

As defendant Anderson has failed to preserve the record, we are unable to discern the race of either the jury or the other excluded venire members. We know of no rule of law that requires us to guess or speculate as to the racial composition of the jury in determining a Batson violation. Yet, this is what defendant Anderson proposes we do although any determination made here would be entirely based on speculation and conjecture. We decline to undertake this expedition as it certainly is not in accordance with the intent of Batson. Defendant Anderson has simply established that the State used two of its peremptory challenges to exclude African-American women from the jury.

The challenge of African-American venirepersons alone does not raise an inference of discrimination. (Batson, 476 U.S. at 101, 90 L. Ed. 2d at 91, 106 S. Ct. at 1725.) Defendant Anderson’s failure to satisfy his onus of preserving the record waives substantive review of this contention.

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

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ALLEN GLATER, Petitioner-Appellee, v. ANTHONY FABIANICH, Respondent-Appellant.
    First District (4th Division)
    No. 1—92—1084
    Opinion filed August 12, 1993.

      Karl G. Rubesh and Diana Kenney, both of Carper & Rubesh, of Chicago, for appellant.
    Helen Sigman and Richard J. Nealis, both of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a hearing in the circuit court of Cook County, the trial court entered a plenary order of protection against respondent, Anthony Fabianich, pursuant to the Illinois Domestic Violence Act of 1986 (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 1 et seq.). Respondent appeals, contending that the trial court erred in (1) denying his motion to dismiss for lack of subject matter jurisdiction, (2) entering a protective order based on insufficient evidence to support a finding of abuse, and (3) failing to set forth its jurisdictional findings on the record.

We affirm.

On October 2, 1991, petitioner, Allen Glater, filed a petition for an order of protection against respondent. In support of the petition, petitioner filed an affidavit stating, inter alia, that he had formerly shared a residence with respondent, and that on March 17, 1991, respondent pushed and choked him. The affidavit also alleged that respondent threatened petitioner on numerous occasions. Based on the petition and supporting affidavit, the trial court entered an emergency order of protection and set the matter over for a hearing on October 23,1991.

At the hearing, respondent filed a motion to dissolve the protection order alleging that the parties had never shared a common dwelling and that petitioner had suffered no immediate threat of harm. After entertaining argument on respondent’s motion, the trial court held there was sufficient basis to establish a common household between the parties. The trial court then denied respondent’s motion. Thereafter, the trial court heard testimony concerning the petition for an order of protection.

Petitioner testified that on March 17, 1991, respondent pushed him in a chair and choked him. Respondent then waived a stick in petitioner’s face and asked him whether he knew how close he was to dying. Petitioner further testified that on July 8, 1991, he spoke with respondent twice by telephone and once in person. During one telephone conversation, respondent threatened him with physical violence. On the next day, respondent telephoned petitioner and indicated he was still angry over the termination of their relationship.

Following petitioner’s testimony, the matter was continued until October 28, 1991. Subsequently, the trial court entered four interim orders of protection which were valid until February 24, 1992. On that day, respondent requested a rehearing on the motion to dismiss the protective order. The trial court granted petitioner’s motion to strike respondent’s motion; thereafter, testimony on the petition for an order of protection resumed.

Laura Wallingford testified that respondent was a family friend who often baby-sat her children. Wallingford also testified that on September 27, 1991, she spoke with respondent by telephone. During this conversation, respondent indicated he was angry with petitioner over the termination of their relationship, which had occurred three months previous. According to Wallingford, respondent stated that he would like petitioner “to be erased,” and also that he and petitioner were “going to have a chat and it won’t be pretty.”

Fred Kraemer testified that he lived in the apartment below respondent’s at 2937 North Ashland, and paid rent to respondent. Kraemer stated that if his radio was not on, he could hear conversations in respondent’s apartment. Kraemer also testified that he attended a party with petitioner and respondent on March 17, 1991. On that date, he heard nothing out of the ordinary in respondent’s apartment, and petitioner did not tell him that respondent had attacked him earlier that day.

Gwen Davis testified that she had known respondent since June of 1981. During that time she and respondent became best friends. Davis also testified that she had never known respondent to be violent, but rather a sincere and compassionate person. Davis stated she thought respondent and petitioner were best friends. Davis also stated she saw respondent and petitioner at a party on March 17, 1991, and they acted as though they were best friends.

Respondent testified that he, petitioner, and Kraemer attended a party together on March 17, 1991, and that he and petitioner later vacationed together for 8 or 10 days. Petitioner and respondent roomed together while on vacation. Respondent further testified that on May 12, 1991, petitioner sponsored two birthday parties for him. According to respondent, he and petitioner attended another party together on July 3,1991.

Following closing arguments, a recess was taken and no further proceedings were held in the presence of a court reporter. Subsequently, the trial court entered a plenary order of protection based upon its oral findings. Respondent then filed this appeal.

First, respondent claims that the trial court improperly denied his motion to dismiss. Respondent argues that the trial court lacked jurisdiction because no evidence supported its finding that the parties had shared a common dwelling. Based on our review of the record, however, we agree with petitioner that the trial court had proper jurisdiction over the matter.

The Act was enacted to prevent abuse and harassment between family or household members. (Ill. Rev. Stat. 1991, ch. 40, par. 2311— 2.) Section 103(5) of the Act defines family or household members as “persons who share or formerly shared a common dwelling.” (Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 3(5).) In denying respondent’s motion to dismiss, the trial court held that the evidence supported a finding that the parties had formerly shared a common household.

At the hearing on respondent’s motion, petitioner testified that he stayed at respondent’s apartment every night for three months during 1989. According to petitioner, he kept a full complement of clothes at respondent’s apartment, and he also performed some household chores. Petitioner further testified that he spent more than 90% of his time at respondent’s apartment. To the contrary, respondent and Fred Kraemer testified that petitioner stayed at respondent's apartment only once for 8 to 10 days in 1990. Even so, it was for the trial court to resolve conflicting testimony, and its determination should not be disturbed where it is supported by some evidence in the record. Holland v. State Farm Mutual Automobile Insurance Co. (1991), 216 Ill. App. 3d 463, 468.

Furthermore, incontrovertible evidence reveals that petitioner stayed at respondent’s apartment for at least 7 to 10 days during 1990. During this time, petitioner ate and slept there every night and also contributed to household expenses such as buying food. We agree with the trial court that there was a sufficient basis in the evidence to find that the parties had shared a common household.

Respondent would have us hold that the Act only applies to persons related by marriage or blood. We decline to take such a restrictive view as the Act was designed to prevent abuse between persons sharing intimate relationships. (People v. Whitfield (1986), 147 Ill. App. 3d 675, 679.) Based on the evidence, we believe the trial court had subject matter jurisdiction. Therefore, the trial court properly denied respondent’s motion to dismiss.

Second, respondent asserts that the order of protection should be reversed because petitioner failed to present sufficient evidence of abuse. Under the Act, a person commits abuse when he or she threatens another with physical force on one or more occasions. (Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 3(1).) It is the trial court which determines, based on the evidence, whether any abuse has occurred or whether the potential for further abuse exists. (People v. Whitfield (1986), 147 Ill. App. 3d 675, 679-80.) After carefully reviewing the record, we believe the evidence supports the trial court’s entry of the protective order.

At the hearing, petitioner testified that on March 17, 1991, respondent pushed and choked him, and also threatened him with a piece of wood. Petitioner further testified that during a telephone conversation with respondent on July 8, 1991, respondent threatened to break every window in petitioner’s home. Petitioner also stated that on July 9, 1991, respondent threatened that if he broke off their relationship, respondent would not honor his commitment to a mutual friend not to commit any future acts of violence against petitioner. Moreover, Laura Wallingford testified that respondent stated during a telephone conversation on September 27, 1991, that he wanted petitioner “to be erased.” The evidence supports a conclusion that the potential for abuse existed. Based on our review of the record, we cannot say that the trial court erred in finding respondent committed abuse or that the potential for abuse existed.

Lastly, respondent contends a new trial is warranted because the trial court failed to set forth its jurisdictional findings on the record. We find respondent’s argument to be without merit. Here, the judge issued oral findings but respondent failed to include them in the record on appeal. An appellant is obliged to provide a complete record containing all matters relevant to the issues he raises on appeal, and any doubt arising from an incomplete record is resolved against him. (In re Estate of Jacobs (1989), 189 Ill. App. 3d 625, 629.) Moreover, a trial court’s failure to state its jurisdictional findings on the record does not require reversal. (See In re Marriage of Hagaman (1984), 123 Ill. App. 3d 549, 554.) Hence, we agree with petitioner that no reversal is warranted.

For the foregoing reasons, the judgment entered by the circuit court is affirmed.

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: JUSTICE HOFFMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BROWN, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0999
    Opinion filed August 12, 1993.

      Rita A. Fry, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Matthew L. Moodhe, and Jillian Cerone-Marisie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HOFFMAN

delivered the opinion of the court:

The defendant, Steven Brown, appeals from a jury verdict finding him guilty of murder (111. Rev. Stat. 1985, ch. 38, par. 9 — l(aXl)) but mentally ill. He raises the following issues: (1) whether the trial judge improperly shifted the burden of proof to the defendant during the fitness restoration hearing, erroneously relied on the presumption of fitness, and abused his discretion in finding that the defendant was fit to stand trial; (2) whether the prosecutor’s alleged improper closing argument amounted to plain error; (3) whether the alleged ineffective assistance of counsel, for failure to move to suppress the defendant’s statement and object to closing arguments, rose to the level of plain error; and (4) whether the judge abused his discretion when he sentenced the defendant. For the following reasons, we affirm.

The defendant’s father, Lee Brown, was found dead of multiple stab wounds on October 17, 1986, outside a store that he owned. During the investigation of the murder, the defendant gave a statement to police and he was subsequently charged with two counts of murder (111. Rev. Stat. 1985, ch. 38, pars. 9 — l(aXl), (aX2)).

Prior to trial, the judge ordered a psychiatric examination of the defendant. After a fitness hearing held on February 4, 1987, the judge found that the defendant was unfit to stand trial and committed him to the Department of Mental Health. Because there was a substantial probability that with treatment the defendant would attain fitness within one year, several other hearings were held to determine the defendant’s fitness to stand trial. On December 11, 1987, he was found fit for trial, on August 16, 1988, he was found unfit, and on March 21,1989, he was again found fit for trial.

Subsequently, in a letter to the trial judge, Dr. Matthew S. Markos, a psychiatrist, reported his findings after examining the defendant on December 6, 1989. He found that the defendant was fit to stand trial with medication. Markos was unable to give an opinion on the defendant’s sanity at the time of the offense because the defendant would not cooperate.

Dr. Albert H. Stipes, a psychiatrist, examined the defendant on March 30, 1990, and in a letter to the trial judge reported that he also found the defendant was fit to stand trial.

Although the defendant was found fit to stand trial in the previous fitness hearing, another hearing was held on May 8, 1990, to again determine whether he was fit to stand trial. Prior to hearing testimony, the defendant’s attorney agreed with the trial judge that the defense had the burden of proof. The defense presented three witnesses.

Scott Rosenthal, a psychiatric social worker for the Cook County jail, testified that he had weekly therapy sessions with the defendant for 21/2 years. During the previous four or five months, the sessions were limited because the defendant was withdrawn and was not willing to discuss his problems.

Dr. Markos testified that he examined the defendant on December 6, 1989, and found that he was fit to stand trial while taking medication.

The defendant testified that his name was not Steven Brown and the victim was not his father. When asked about his discussions with his attorneys, he testified that they believed he was guilty and tried to coerce him into admitting that he committed the offense. He told his attorneys that he was willing to cooperate but they “continuefd] to do all the talking.”

The State did not present evidence at the hearing and moved for a directed finding. The trial judge noted that the defendant was presumed to be fit for trial. The judge stated, “I find there is nothing in this record, looking at the evidence in a light most favorable to the moving party Petitioner, Mr. Brown, that from a bona, fide standpoint militates against the presumption of fitness.” Based on the testimony presented and Dr. Markos’ opinion of December 6, 1990, the judge granted the State’s motion and found that the defendant was fit to stand trial.

In a jury trial, Detective Barry Costello testified that he interviewed the defendant during his investigation of the murder. The defendant’s mother and sister told him that the defendant had a mental problem. The defendant was given Miranda warnings and stated that he understood. Initially, the defendant did not admit his involvement in the murder. Costello testified that in a subsequent interview, the defendant was “a little” nervous and upset but Costello understood him. The defendant told Costello that he went to his father’s store on October 17, 1986, and asked for money. When his father called him a drunk and a drug addict, the defendant stabbed him numerous times with a pair of scissors.

Later, with an assistant State’s Attorney present, the defendant was again read his Miranda rights, indicated that he understood, and a court reporter recorded his statement. The assistant State’s Attorney testified that the defendant did not exhibit signs of mental illness.

Dr. Eupil Choy performed an autopsy on the victim and testified that he died as a result of 36 stab wounds to the face, neck, and body. The State rested its case.

The defense called Barbara Brown, the defendant’s mother, who testified that she first realized the defendant was mentally ill when he was 17 years old and required hospitalization. He has been hospitalized frequently since that time.

Dr. Markos testified that he examined the defendant several times to determine his fitness for trial and his sanity at the time of the offense. Markos diagnosed the defendant as a paranoid schizophrenic, but with medication, the defendant was in partial remission. He was unable to form an opinion as to the defendant’s sanity at the time of the offense because the defendant would not cooperate.

Dr. Gerson Kaplan, a forensic psychiatrist, also testified that he examined the defendant several times. Based on the examinations, he diagnosed the defendant as a schizophrenic. Dr. Kaplan found that the defendant was legally insane at the time of the offense. The defense rested.

In rebuttal, the State called Dr. Stipes, a psychiatrist, who testified that he examined the defendant to determine whether he was sane at the time of the crime. He found that the defendant suffered from paranoid schizophrenia which was in remission due to medication. He also found that based on the police reports and the defendant’s statement, the defendant was sane at the time of the offense because he was logical and coherent and because he gave a reasonable motivation for the murder which was anger.

After deliberating, the jury found the defendant guilty of murder but mentally ill and he was sentenced to 32 years in the mental health unit of the Department of Corrections. The defendant’s post-trial motion was denied and he now appeals.

Opinion

I

The defendant raises several arguments concerning the trial judge’s finding that he was fit to stand trial. He contends that during the restoration hearing the judge improperly shifted the burden to the defendant to prove that he was unfit, erroneously relied on the presumption of fitness, and abused his discretion in finding the defendant was fit to stand trial.

A defendant is presumed to be fit to stand trial. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 10.) When a bona fide doubt of a defendant’s fitness is raised, the trial judge shall conduct a hearing during which the State has the burden of going forward with evidence and proving by a preponderance that the defendant is fit to stand trial. (Ill. Rev. Stat. 1989, ch. 38, pars. 104—11(a), (c); People v. Murphy (1987), 160 Ill. App. 3d 781, 513 N.E.2d 904.) A defendant is unfit if he is unable to understand the nature and purpose of the proceedings against him or assist in his defense because of a mental or physical condition. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 10.) If a defendant is found unfit and treatment has been ordered, the judge must periodically review the issue of fitness to stand trial. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 20(a).) If the judge subsequently finds that the defendant is fit for trial, he should set the matter for trial. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 20(b).) The judge’s finding on whether a defendant is fit to stand trial will not be reversed on appeal unless it was a clear abuse of discretion. Murphy, 160 Ill. App. 3d 781, 513 N.E.2d 904.

The defendant relies on Murphy to support his arguments. In Murphy, the appellate court stated that if a trial judge in his discretion determines that a bona fide doubt of fitness is raised, “the presumption [of fitness] ‘bubble’ bursts and a hearing must be held.” (Murphy, 160 Ill. App. 3d at 793, 513 N.E.2d at 912, quoting People v. Burnside (1977), 52 Ill. App. 3d 524, 528, 367 N.E.2d 733.) The holding of a fitness hearing “ ‘presupposes’ the ‘raising’ of the required doubt and *** whether the doubt is ‘bona fide’ is relevant only to the initial determination to hold a fitness hearing.” (Emphasis in original.) (Murphy, 160 Ill. App. 3d at 793, 513 N.E.2d at 913.) Because the State has the burden of going forward with evidence and proving the defendant is fit by a preponderance of the evidence, the court found that requiring the defendant to proceed with evidence first resulted in an improper shifting of the burden of proof contrary to the statute. The court granted the defendant a new fitness hearing and, if found fit for trial, a new trial.

The defendant in this case contends that based on Murphy, the judge improperly shifted the burden of proof and required him to prove that he was unfit for trial. Although the State argues that the trial judge’s comments did not indicate that the burden was on the defense, it is clear from the record that the judge believed the defendant had the burden of proof. The State has the burden in a restoration hearing of proving the defendant is fit for trial by a preponderance of the evidence. (People v. Ralon (1991), 211 Ill. App. 3d 927, 570 N.E.2d 742; People v. Phillips (1982), 110 Ill. App. 3d 1092, 443 N.E.2d 655.) However, reversible error did not occur here. Unlike Murphy, the defendant in this case was found fit for trial in a prior restoration hearing on March 21, 1989. The defendant does not claim any error occurred in that hearing. Further, the evidence presented at the restoration hearing on May 8, 1990, clearly established that the defendant was fit for trial. Dr. Markos testified that the defendant was fit for trial while on medication. No other expert testimony was presented. The defendant’s testimony was coherent although he expressed some dissatisfaction with his attorneys. For these reasons, the trial judge’s belief that the defendant had the burden of proof did not amount to reversible error.

The defendant also argues that under Murphy, the holding of a fitness hearing shows that there was a bona fide doubt as to his fitness and the judge could not rely on the statutory presumption of fitness to find that he was fit for trial. As stated in Murphy, once a bona fide doubt of the defendant’s fitness is raised, there is no longer a presumption of fitness. However, Murphy discussed the presumption issue in the context of the initial fitness hearing. When a defendant is found unfit, a presumption of unfitness is raised if the mental illness is continuing and the prior adjudication is not too remote; the presumption remains until there is a subsequent adjudication of fitness in a valid hearing. (People v. Barkan (1970), 45 Ill. 2d 261, 259 N.E.2d 1; Phillips, 110 Ill. App. 3d 1092, 443 N.E.2d 655; People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219.) In this case, there was a subsequent adjudication of fitness in a valid hearing on March 21, 1989, and therefore, any presumption of unfitness was extinguished. Further, after that hearing both Dr. Markos and Dr. Stipes examined the defendant and reported to the trial judge that the defendant was fit to stand trial. As a result, under the circumstances it was within the trial judge’s discretion to consider that there was no longer a bona fide doubt of the defendant’s fitness in the restoration hearing on May 8,1990.

The defendant also asserts that the trial judge abused his discretion in finding he was fit to stand trial. At the hearing, the only expert testimony presented was that of Dr. Markos, who stated that the defendant was fit to stand trial while on medication. Rosenthal testified that the defendant was withdrawn and uncooperative but that does not support a finding that the defendant was unfit to stand trial. Although the defendant testified that his name was not Steven Brown and the victim was not his father, the trial judge, who observed the defendant’s demeanor, found that the defendant was oriented and there was no evidence presented that militated against his ability to observe, recollect, and relay occurrences. There is no reason for this court to discredit the trial judge’s findings on the credibility of the witnesses in this case. Based on the record, the judge did not abuse his discretion in finding that the defendant was fit to stand trial.

II

The defendant also argues that the prosecutor’s alleged improper closing argument prejudiced him but he did not properly preserve the issue for review because he failed to object to most of the comments he now claims were improper and failed to raise the issue in his post-trial motion.

The failure to raise an objection at trial and in a post-trial motion results in a waiver of that issue on appeal unless it amounts to plain error. (People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1.) A reviewing court may consider an issue as plain error when the evidence at trial was closely balanced or when the error was so fundamental that the defendant was denied a fair trial. (Herrett, 137 Ill. 2d 195, 561 N.E.2d 1.) Improper comment is plain error when it was either so inflammatory that the defendant could not have received a fair trial or so flagrant as to threaten a deterioration of the judicial process. People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500.

In this case, the evidence at trial was not closely balanced because the only evidence presented which addressed the defendant’s guilt or innocence was his statement to the police. In that statement, the defendant admitted that he stabbed his father numerous times with a pair of scissors during an argument.

Also, the alleged error was not so fundamental that the defendant was denied a fair trial because none of the comments were inflammatory or flagrant. There is no merit in discussing each of the comments the defendant now claims was improper; we find it necessary to discuss only the comments quoted below.

The defendant claims that the prosecutor improperly commented on the fact that he did not testify with statements such as: “[WJhat you have to consider is what you heard from the witness stand, the evidence which you have to consider. *** The only evidence you have to consider, the only thing you heard is that the Defendant gave that statement. *** You have heard nothing to contradict —The defendant relies on People v. Wollenberg (1967), 37 Ill. 2d 480, 229 N.E.2d 490, where the prosecutor stated that there was only one defendant on trial, named the witnesses for the State and the defense, and then noted, “No one else testified. Let’s get that straight.” (Wollenberg, 37 Ill. 2d at 487, 229 N.E.2d at 494.) The supreme court noted that the State may comment that its case was uncontradicted; however, it found that the comment was plain error because the underlying purpose and ultimate effect were to direct the jury’s attention to the fact that the defendant did not testify. The statements in this case, unlike Wollenberg, served to inform the jury that it could only consider the evidence presented at trial rather than the arguments of counsel and emphasized the strength of the State’s case. The purpose and effect of the statements did not call attention to the defendant’s failure to testify.

The defendant also asserts that the prosecutor improperly bolstered the credibility of the State’s witnesses when he stated: “Do you think the State’s Attorney or the detective *** are [sic] going to get up here and lie, commit penury and get up here and say that the Defendant gave a statement when, in fact, he didn’t?” The defendant relies on People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256, where the court found that a prosecutor may not give the jury his opinion of the witness’ veracity and cannot give the jury what amounts to his own testimony. Bitakis does not warrant a finding here that the comment was prejudicial because the prosecutor did not offer his opinion as to the credibility of the assistant State’s Attorney or the detective. The prosecutor merely asked the jury a rhetorical question concerning their veracity. The comment did not improperly bolster the credibility of the State’s witnesses and, therefore, it was not prejudicial.

The defendant further contends that the prosecutor told the jury to disregard a defense witness and to discredit defense counsel when he said: “You are not to consider what [the defendant’s attorney] may argue. You have to consider the evidence and the evidence says that the Defendant admitted killing his father. *** Regarding the defense, what evidence the Defense did present, it presented Dr. Markos. What significance is that? Nothing.” The defendant relies on People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, where the court found that the prosecutor’s assertions that the defendant’s counsel engaged in trickery and misrepresentation were improper. The comment here, however, did not disparage the defendant’s counsel as did the comments in Starks but, rather, referred to the fact that the jury should not consider closing arguments as evidence. Further, the comment that Dr. Markos’ testimony was not significant was fair because a prosecutor may question the relevance or credibility of the defendant’s case. See Phillips, 127 Ill. 2d 499, 538 N.E.2d 500.

In sum, after reviewing the prosecutor’s arguments in the context in which they were made, we find that none of the comments that the defendant cites were clearly improper. Also, the jury was instructed that the arguments of counsel were not evidence. The comments were neither inflammatory nor flagrant, and therefore, there was no plain error. Further, because none of the comments were improper, there was no cumulative error. Cf. Starks, 116 Ill. App. 3d 384, 451 N.E.2d 1298.

Ill

The defendant next argues that he was denied effective assistance of trial counsel because his attorneys did not file a motion to suppress his statement and because they did not object to the prosecutor’s closing argument. This issue was waived because the defendant did not raise it in his post-trial motion. We will consider the issue to determine if plain error occurred.

Generally, to establish a claim of ineffective assistance of counsel, a defendant must show that the attorney’s performance fell below an objective standard of reasonableness and the defects were so serious that the defendant was denied a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) The defendant must establish that there is a reasonable probability that but for the defects, the result would have been different. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246.) Although the test for ineffective assistance of counsel has two prongs, a reviewing court need not examine whether counsel’s representation was deficient if it finds that there is no basis for sufficient prejudice. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246.

In this case, there is no basis for a finding that the defendant was sufficiently prejudiced by the alleged ineffective assistance of his trial counsel. Although the defendant’s attorneys did not file a motion to suppress, the defendant cannot show that if the motion was filed the result likely would have been different. Before the defendant gave his statement, he was read his Miranda rights and indicated that he understood them. Officer Costello testified that during the interview, the defendant was coherent and appeared to understand what he was saying. The assistant State’s Attorney who was present when the defendant gave his statement stated that the defendant did not exhibit signs of mental illness. Unlike People v. Nau (1988), 167 Ill. App. 3d 338, 521 N.E.2d 177, which the defendant relies on, there was no evidence here that the defendant was hallucinating while he was being interviewed or that the defendant was insane at the time he waived his Miranda rights. Although Dr. Kaplan testified that the defendant was insane at the time of the offense, Dr. Stipes testified that he was sane. As a result, the question of whether the defendant’s statement was voluntary was subject to the determination of which witnesses were credible. (See People v. Graham (1991), 214 Ill. App. 3d 798, 573 N.E.2d 1346 (the trial judge must determine the credibility of the witnesses in a motion to suppress).) Because the weight of the evidence showed that the defendant’s statement was voluntary, it cannot be said that there was a reasonable probability that the defendant’s motion to suppress would have been granted if it was filed.

The defendant also argues he was denied effective assistance of trial counsel because his attorneys failed to object to the prosecutor’s closing argument. As discussed previously, the comments were not prejudicial and any objections to the comments would have been overruled. As a result, the result would not have been different if the objections were made.

IV

Lastly, the defendant argues that the trial judge abused his discretion when he sentenced the defendant to 32 years in the mental health unit.

If convicted of murder, a defendant may be sentenced to from 20 to 60 years in prison. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— l(aXlXa).) Sentencing is within the discretion of the trial judge and a sentence will not be disturbed on review unless it was an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Here, the defendant claims that the trial judge imposed an excessive sentence because the defendant was not remorseful and was not regularly employed. The defendant argues that those factors cannot be held against him because they were the result of his mental illness. It is true that the judge referred to the defendant’s lack of remorse and failure to hold a job in the sentencing hearing. However, in sentencing the defendant, the judge also recognized that the defendant was mentally ill, considered the arguments for mitigation and aggravation, and relied on the presentence report. The sentence of 32 years was not an abuse of discretion because it was well within the statutory limit, the murder was essentially unprovoked, and the victim was brutally stabbed 36 times.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request to assess the sum of $50 against the defendant as costs for defending this appeal and pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we assess the sum of $25 as costs for oral argument.

Affirmed.

JIGANTI, P.J., and CAHILL, J., concur.


author: PRESIDING JUSTICE GORDON

text:
    RUTH SCHINDEL, Plaintiff-Appellee, v. ALBANY MEDICAL CORPORATION, d/b/a Albany Women’s Medical Center, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—2485
    Opinion filed August 13, 1993.
    Richard M. Kates, of Chicago, for appellant.
    Steven J. Rosenberg, PC., of Chicago, for appellee.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Plaintiff brought this action to recover damages which occurred when plaintiff’s fallopian tube ruptured because of an ectopic pregnancy. Plaintiff alleges that defendant, Albany Medical Corporation, following a pregnancy termination procedure in defendant’s clinic, (1) failed to employ and enforce proper procedures to notify plaintiff of abnormal laboratory findings, (2) failed to notify her of abnormal laboratory findings, and (3) failed to notify her of the possibility that she had an ectopic pregnancy. Defendant appeals from a jury verdict and judgment entered in favor of plaintiff in the amount of $25,000. Defendant contends that the trial court improperly denied its motions for a directed verdict at the close of plaintiff’s case in chief and at the close of all evidence and its post-trial motion for directed verdict, judgment notwithstanding the verdict, or new trial, due to plaintiff’s failure to present expert testimony regarding the applicable standard of care. For the reasons set forth herein, we reverse.

The following evidence was introduced during a three-day trial. Defendant operated a limited-service medical clinic which provided gynecological outpatient services, including birth control, routine exams, pap smears, sterilizations, surgery for infections, and terminations of pregnancies. On Saturday, November 13, 1982, plaintiff visited the clinic to have an abortion. She was accompanied by her boyfriend, Henry Ortiz.

Upon arrival at the clinic, plaintiff was asked to provide some personal information, including a phone number. According to plaintiff, she was not asked for an emergency or work phone number. She gave the clinic her home phone number. Plaintiff also spoke with a counselor prior to having the medical procedure, and signed a consent form which included the following provision:

“I recognize that a first trimester abortion cannot terminate an ectopic pregnancy (outside the uterus) and no guarantee has been made to me regarding the outcome of this procedure.”

Plaintiff received written aftercare instructions which included the following symptoms as “complications” which “are not normal”: heavy bleeding (light bleeding was indicated as normal), temperature above 100.4 degrees, severe cramping, discharge with bad odor, bloating, and severe abdominal pain. The aftercare instructions stated that if any of those symptoms occurred, the patient should call the clinic’s 24-hour telephone number. That number appeared three times on the written aftercare instructions.

Plaintiff testified that she read the aftercare instructions and kept them. She said she was also given oral instructions as to possible post-operative symptoms and what to do if she experienced any of them. There was no testimony to reflect whether an “ectopic pregnancy” was specifically mentioned during those oral instructions.

Plaintiff testified that she returned to work on Monday and worked a full week with no unusual physical symptoms. On Sunday, November 21, however, she arose at 10 a.m. and while brushing her teeth she suffered a sharp pain in her lower right side. She felt nauseous and collapsed on her way to the bedroom. She passed out several more times during the next few hours.

Plaintiff called her boyfriend, Henry Ortiz, told him she was not feeling well, and asked him to come to her apartment. When Mr. Ortiz arrived, he found plaintiff pale and unconscious on the floor. He called the paramedics, who transported plaintiff to Ravenswood Hospital.

Dr. Juan Vargas testified that he treated plaintiff at the hospital. On admission, plaintiff related that she recently had an abortion, that she had been bleeding for two or three days following the abortion, and that she had experienced a sharp pain that morning. When Dr. Vargas first saw plaintiff, she had all the symptoms of shock. He ordered emergency surgery. The surgery confirmed a ruptured ectopic pregnancy.

Dr. Steven Valfer performed the pregnancy termination procedure on plaintiff at the clinic. He testified that following an abortion the removed tissues are sent to a laboratory for analysis. Analysis is necessary to verify that the tissue is indeed pregnancy tissue and that no abnormal pregnancy tissue was removed. He explained that an absence of pregnancy tissue may mean that the woman was not pregnant, that she may have a molar pregnancy (an abnormal pregnancy that is a form of malignancy), that she may have miscarried, or that she may have a pregnancy some place other than in the uterus (an ectopic pregnancy). An ectopic pregnancy can occur in the fallopian tube. Dr. Valfer testified that if such a tubal pregnancy is untreated, several things may occur. The tissue may just resolve itself, in which case the woman may never be aware of the pregnancy. The pregnancy may abort itself or implant itself elsewhere inside the abdomen. The ectopic pregnancy may also rupture the fallopian tube, causing hemorrhaging which, if left unchecked, may result in shock and death. Dr. Valfer stated that there may be nothing in the physical examination preceding the termination procedure which would indicate an ectopic pregnancy.

Dr. Valfer stated that he was responsible for reviewing the laboratory reports and instructing the clinic as to what should be done. He said that, although he instructed clinic personnel to contact patients whose pathology reports indicated possible ectopic pregnancies, it was not his responsibility to provide such notice to patients. He said that such notification was the responsibility of the clinic.

Dr. Valfer then referred to the pathology report on tissues removed from plaintiff. The report stated “Gestational endometrium and deciduous, Arias-stella phenomenon. Chorionic villi and trophoblast elements are not seen. Multiple recut sections, multiple levels, reveal no evidence of villi or trophoblast.” Dr. Valfer explained that chorionic villi and trophoblast are definitive evidence of a pregnancy, and without their presence, one could not be sure whether all the tissue had been removed or whether there was any pregnancy tissue in the uterus. He testified that although these findings would lead him to suspect that there might be a pregnancy outside the uterus, the absence of these tissues is not sufficient to confirm a diagnosis of ectopic pregnancy. He characterized reports such as the ones here as “indicia for the physician to follow up on.” Dr. Valfer testified that the fact that the laboratory had called the clinic with preliminary results probably indicated concern of laboratory personnel that there might be a tubal pregnancy which could cause bleeding.

The written preliminary laboratory report on plaintiff’s tissue was received by the clinic on November 18, 1982. It contains a notation, added by Dr. Valfer, “to be examined and informed of possibility of ectopic pregnancy.” Dr. Valfer testified this was his instruction to clinic personnel.

Walter Dragosz, the owner of the clinic, was questioned about clinic procedures. He testified that the clinic’s practice was to ask a patient where she could be contacted. In most cases, the patient gave a home number, but the clinic would record multiple numbers if the patient provided them.

Dragosz was also questioned about the clinic’s “Policy and Procedure Manual.” That manual included the following guideline for physicians while in the procedure room:

“If an abortion is done and very little tissue is obtained, the patient must be counseled to come back for a pregnancy test and examination in one week. An explanation of this action is necessary in order that the patient can be aware of the symptoms of and the steps needed to reduce complications from an ectopic pregnancy or incomplete abortion. Tissue from the procedure is submitted for microscopic examination. Aftercare instructions must be given orally or in written form which includes an explanation of symptoms indicating a possible complication.”

Regarding tissue specimens, the manual included the following provision:

“All tissue specimens are sent to an independent laboratory for macro and microscopic determinations. Pathology reports are filed with the patient’s chart and maintained as part of a permanent record.”

The manual also contained the following concerning patient followup:

“Patients with unusual tissue specimens and/or other procedural problems are routinely scheduled at physician order to return to the clinic for an examination. Patients who are returning to their own physician, clinic and/or other source of medical care are asked to sign a release which enables us to forward a copy of her/his procedural records to her/his main source of health care prior to her/his checkup. These sources then complete a follow-up exam form on the patient and send it back to us and it is included in her/his file. The coordinator of referrals handles these forms.”

There was no evidence presented that the amount of tissue removed from plaintiff during the termination procedure was such an unusually small amount of tissue to invoke the manual’s provision instructing a physician to counsel for a one-week follow-up examination rather than the normal two- to three-week recommendation printed in the aftercare instructions. Plaintiff testified she did not make a follow-up appointment with the clinic because she wanted to see her own physician. While the record contains a release signed by plaintiff, no name is entered for plaintiff’s follow-up health care provider.

Jeanne Dragosz, Walter’s sister, testified that in 1982 she served as administrator of the clinic. She stated that laboratory testing of tissues was included in the charge for the pregnancy termination procedure. She testified that the clinic would contact a patient in the event of a questionable test result. She stated that the clinic did not treat ectopic pregnancies, since such treatment required surgery and hospitalization which could not be offered at an ambulatory clinic.

Jeanne Dragosz also testified that the clinic was State licensed and was inspected by the State in 1982. As part of that inspection, the State approved the clinic’s policy and procedures manual.

Connie Perreault testified that she was a registered nurse who, in 1982, was employed by defendant’s clinic. She said that when she was informed of plaintiff’s laboratory test results, she contacted Dr. Valfer. His instructions, which she noted in plaintiff’s record, were “ask for s & s. If +, send to E.R. If -, have pt come in to see Dr. Meyers.” She explained that this meant the patient was to be asked if she had signs and symptoms of pregnancy or other symptoms, and if so, the patient should be sent to an emergency room. If the patient had no such signs or other symptoms, the patient should be told to come in to see Dr. Meyers, the clinic’s medical director. Notations in plaintiff’s medical records indicated three unsuccessful attempts to reach plaintiff by telephone regarding her laboratory results: two attempts on November 17 and one attempt on November 18, all at the telephone number given by plaintiff.

Those records also contained an undated letter which read “Dear Ruth: The results of your lab work done on 11/13/82 are in. Please call me at your earliest convenience.” The letter was signed “Connie.” Beneath the signature was the clinic’s phone number. Perreault testified that although the letter in plaintiff’s file was undated and there was nothing to definitively indicate that it was sent, her practice was to send such a letter to the patient, even when she contacted the patient by phone. She testified that, based on her usual practice, she probably sent the letter on November 18, 1982.

Anne Hohmeier was a counselor at the clinic. In that capacity, she would receive complaint calls for which she completed a form at the time of the call. She identified her written documentation of a telephone call received on November 23, 1982. That document was admitted as a business record over plaintiff’s hearsay objection. Ms. Hohmeier stated that the caller identified himself as Henry Ortiz, plaintiff’s fiance. He said he had found plaintiff lying on the floor and had taken her to a hospital where she had surgery. According to Ms. Hohmeier, Mr. Ortiz said that he had Connie’s letter to plaintiff asking plaintiff to call about her laboratory results.

Mr. Ortiz then testified that he did call the clinic to speak with the doctor, but was told the doctor was unavailable. He denied receiving a letter from the clinic. Appellant, outside the statement of facts, does not contend on appeal that the issue of whether the letter was sent is dispositive or that a finding that the letter was not sent would have been against the manifest weight of the evidence.

Counsel for defendant was permitted to read into the record the following State regulation which was in effect at the time of the events at issue here:

“All tissues removed during surgery shall be examined by a consulting pathologist and all X-rays shall be read by a consulting radiologist who shall provide a written report of his or her examination to the attending physician. A copy of this report shall be filed in the clinical record within seven days.”

Defendant’s motion for a directed verdict at the close of all the evidence was denied. The jury returned a verdict in favor of plaintiff, awarding her $25,000. This appeal followed the denial of defendant’s post-trial motion for a directed verdict, judgment notwithstanding the verdict, and a new trial.

Opinion

On appeal, defendant contends testimony of a medical expert is required to establish the appropriate standard of care owed to plaintiff in this case as in all medical malpractice cases. Because plaintiff offered no expert testimony establishing the appropriate standard of care, defendant contends that the trial court should have granted defendant’s motion for a directed verdict in its favor.

Plaintiff contends this is not a medical malpractice case, but one which could be decided on principles of ordinary negligence and that defendant’s duty to notify her of the laboratory findings does not require a medical expert’s evaluation and opinion.

Generally, expert testimony is required to support a charge of medical malpractice. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279, 282.) This is because assessment of the alleged negligence may require knowledge, skill, or training in a technical area outside the comprehension of lay persons. (See Edelin v. Westlake Community Hospital (1987), 157 Ill. App. 3d 857, 863, 510 N.E.2d 958, 961-62; see also Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 594, 491 N.E.2d 803, 811.) In other words, the subject matter is so complicated that lay persons are not in an adequate position to assess whether a breach of duty has occurred. (See Taber v. Riordan (1980), 83 Ill. App. 3d 900, 906, 403 N.E.2d 1349, 1354.) Expert testimony is necessary whenever jurors who are not skilled in the practice of medicine would have difficulty, without assistance of medical evidence, in determining any lack of necessary scientific skill on the part of a medical professional. (Walski, 72 Ill. 2d at 256, 381 N.E.2d at 282.) When expert medical testimony is required, Illinois courts apply the “similar locality rule” to determine the standard of care which is required of a medical practitioner, i.e., the practitioner is required to exercise the same degree of knowledge, skill, and care which a reasonably well-qualified practitioner in the same or similar community would use under similar circumstances. Purtill v. Hess (1986), 111 Ill. 2d 229, 242, 489 N.E.2d 867, 872.

A well-established exception to the general rule requiring expert testimony in medical malpractice cases is where the defendant’s, negligence is so grossly apparent or the treatment is so common that a lay person can readily appraise it using his or her everyday knowledge. (Walski, 72 Ill. 2d at 256, 381 N.E.2d at 282; Taylor, 142 Ill. App. 3d at 594, 491 N.E.2d at 810; Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 158, 196 N.E.2d 355, 360.) This “gross negligence” or “common knowledge” exception has been applied only in certain limited situations. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301, 304-05.) For instance, in Newman v. Spellberg (1968), 91 Ill. App. 2d 310, 234 N.E.2d 152, the court applied the exception where a doctor lifted a patient during a gastroscopic examination. The court stated:

“To us it is plain common sense and common knowledge, that when a patient is being held to assure that his torso is not moved while a foreign object such as a gastroscope is inserted into his innermost organs, injury would probably be sustained when an excessive or unnatural pressure was put upon his torso by lifting it against the force attempting to hold it in place. Here the uncontradicted testimony is that the sharp pain was first felt at the time plaintiff’s torso was so lifted. It is a reasonable inference that it was at that time that the injury occurred.” Newman, 91 Ill. App. 2d at 322, 234 N.E.2d at 158.

The “gross negligence” or “common knowledge” exception has also been applied in X-ray burn cases. (See Holcomb v. Magee (1920), 217 Ill. App. 272 (X-ray machine was known to be out of order); see also Johnson v. Marshall (1926), 241 Ill. App. 80 (no protective covering on eyes during X-ray treatment of nose).) In Hall v. Grosvenor (1932), 267 Ill. App. 119, a laparotomy sponge, 18 inches in length, was left inside a patient’s abdomen following surgery. The court stated, “But it does not need the aid of expert testimony for any intelligent person to have an opinion as to the impropriety of leaving a foreign object in a wound, especially of the size of the sponge in the record before us.” Hall, 267 Ill. App. at 122.

In Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 303 N.E.2d 392, the Illinois Supreme Court identified another exception to the rule that there must be expert testimony. The court allowed evidence of a manufacturer’s instructions for the use of a certain drug, coupled with the physician’s acknowledgement that he knew of those instructions, to establish the physician’s duty without expert testimony as to standard of care. Ohligschlager, 55 Ill. 2d at 417-18, 303 N.E.2d at 396.

Some cases have found evidence of accreditation standards and hospital policy and regulations admissible, either alone or in combination with expert medical testimony, to establish a hospital’s standard of care. See Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 332, 211 N.E.2d 253, 257 (hospital regulations, standards and bylaws performed much the same function as evidence of custom, although they did not conclusively determine the standard of care); Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 856, 543 N.E.2d 868, 872 (“certain professional guides, such as hospital licensing regulations, accreditation standards, bylaws and instructions for the use of drugs, may serve as a substitute for expert testimony”); Taylor, 142 Ill. App. 3d at 596, 599, 491 N.E.2d at 811, 813 (although regulations, standards and hospital bylaws are admissible as to standard of care, mere broad statements without reference to particular provisions are insufficient).

The “doctrine” of medical malpractice goes to the particular activity involved rather than the person performing the activity. (Graham, 46 Ill. App. 2d at 159, 196 N.E.2d at 361.) Because the nature of the allegedly negligent act determines whether the action is one of malpractice, the phrase “malpractice” can be interpreted to include negligence in the interrelated health care services. (See Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 654-55, 509 N.E.2d 702, 706; see also Graham, 46 Ill. App. 2d at 159, 196 N.E.2d at 361 (medical malpractice not limited to acts of physicians).) Where the alleged negligence is directly related to plaintiff’s medical condition, the complaint is one for malpractice. (See Kus v. Sherman Hospital (1990), 204 Ill. App. 3d 66, 72, 561 N.E.2d 381, 384.) An assessment of what is required or necessary in light of that medical condition is inherently one of medical judgment and, as a result, necessitates expert testimony on the standard of care. Lyon, 156 Ill. App. 3d at 654-55, 509 N.E.2d at 706 (failure of an ambulance service to provide appropriate medical equipment was malpractice because the decision about which equipment was necessary for someone in plaintiff’s condition involved medical judgment).

Plaintiff contends that the dispositive issue in this case is not one of medical malpractice, but of ordinary negligence, so that testimony of a medical expert is unnecessary. Plaintiff contends in her brief that this notice question “had nothing to do with an expert analysis of her medical condition, treatment or diagnosis.” Although it is true that plaintiff raises no issue about the quality of treatment received while she was at the clinic, and she does not question the correctness of Dr. Valper’s diagnostic conclusion of a “possible ectopic pregnancy,” we find the case does require expert analysis of plaintiff’s medical condition in order to fully define the proper standard of care.

The parties do not dispute that it is the urgency of the danger involved and the likelihood and extent of harm to the plaintiff which would dictate the extent of defendant’s duty to notify plaintiff. (See analysis of Phillips v. Good Samaritan Hospital (1979), 65 Ohio App. 2d 112, 416 N.E.2d 646, later in this opinion.) These factors involve evaluation of plaintiff’s medical condition and, therefore, must be established by expert medical testimony. (See Walski, 72 Ill. 2d at 256, 381 N.E.2d at 282 (expert testimony needed because jurors unskilled in practice of medicine would have difficulty determining lack of scientific skill on part of physician); Taylor, 142 Ill. App. 3d at 594, 491 N.E.2d at 811 (expert knowledge, skill or training needed to determine what action was required in light of patient’s medical condition).) There was no testimony at trial as to the degree of likelihood of a tubal pregnancy, the likelihood that such a pregnancy would result in rupture of the fallopian tube, or the urgency involved in cases with laboratory results such as plaintiff’s. Although testimony was offered as to the date of plaintiff’s last menstrual period, there was no testimony indicating whether a tubal pregnancy can rupture the fallopian tube from the time of conception, or whether the danger arises at a certain point in the pregnancy. There was no testimony as to whether the danger was imminent. Such information requires technical, medical knowledge which is not within the common knowledge of jurors untrained in the medical profession. (Taber, 83 Ill. App. 3d at 906, 403 N.E.2d at 1354 (question of proper procedures to correct complications after surgery is a complex question not within common knowledge of jurors).) Without such knowledge it is not possible for jurors, without the aid of medical experts, to reach any meaningful conclusions as to the extent of defendant’s duty to notify, i.e., how soon notification must normally be made to likely avert harm and how extensive defendant’s attempts to notify must be.

As noted in Kolanowski v. Illinois Valley Community Hospital (1989), 188 Ill. App. 3d 821, 544 N.E.2d 821, where the proper standard of care is determined by plaintiff’s medical condition, it involves medical judgment. (See Kolanowski, 188 Ill. App. 3d at 825, 544 N.E.2d at 824.) In Kolanowski, the plaintiff fell from his bed in a hospital's respite care facility. (Kolanowski, 188 Ill. App. 3d at 821-22, 544 N.E.2d at 821-22.) Although no medical treatment was being rendered to the plaintiff, the court held that expert testimony was necessary to determine the hospital’s standard of care. The court wrote:

“Plaintiff’s fall, it appears, was directly related to his medical condition. As indicated above, it has been previously determined in this State that the need for bed rails in light of a patient’s medical condition is not a matter of common knowledge, but requires medical knowledge, skill, and training. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.
Under the circumstances of this case, we find that the proper level of supervision and restraint were [sic] determined by the plaintiff’s medical condition and therefore involved medical judgments. Accordingly, an expert’s opinion regarding the defendant hospital’s standard of care would have been required at trial.” Kolanowski, 188 Ill. App. 3d at 825, 544 N.E.2d at 824-25.

Dr. Valfer testified that, in his opinion, it was generally the clinic’s responsibility to notify patients of possible ectopic pregnancies. Evidence was also presented of the clinic’s manual insofar that it stated “[p]atients with unusual tissue specimens are routinely scheduled at physician order to return to the clinic for an examination,” from which some assumed duty to notify may arguably be inferred. (See Darling, 33 Ill. 2d at 332, 211 N.E.2d at 257, and its progeny (Smith v. South Shore Hospital, 187 Ill. App. 3d at 856, 543 N.E.2d at 872, and Taylor v. City of Beardstown, 142 Ill. App. 3d at 599, 491 N.E.2d at 813).) However, neither the manual nor Dr. Valfer in his testimony defined the nature or extent of such duty. Neither specified how soon notification must occur to likely avert the possible harm and how diligent and extensive the effort to notify should be, in light of plaintiff’s medical condition. Consequently, the jurors were simply left to speculate as to the proper standard of care which would apply to the facts of this case and in their determination as to whether defendant deviated from any such applicable standard. We also note that neither Dr. Valfer nor anyone else testified as to the standard of care under the “similar locality rule” which medical malpractice doctrine requires. See Stevens v. Sadiq (1988), 176 Ill. App. 3d 333, 338, 530 N.E.2d 1159, 1162 (it is not enough that a witness testifies as to his or her own personal standards).

That the issue is one of notice rather than of treatment does not alter the fact that a medical judgment is required. The case of Tabor v. Riordan (1980), 83 Ill. App. 3d 900, 403 N.E.2d 1349, is on point. Tabor involved the question of establishing a doctor’s duties to notify a patient of post-operative complications and to refer the patient to a specialist for treatment of those complications. The plaintiff argued that expert testimony was unnecessary to establish those duties in that they were self-apparent. In affirming a judgment in favor of the defendant, the court stated, “The operation here involved, a cup arthroplasty, is a complicated procedure in which a layman would not be in an adequate position to assess whether the duty resulting after complications arose was breached.” (Tabor, 83 Ill. App. 3d at 906, 403 N.E.2d at 1354.) In holding that expert testimony was required to establish the post-operative standard of care, the court analogized the post-operative duties to the duty to disclose under informed consent standards, stating:

“The duty to inform of possible complications before an operation or course of treatment can be analogized to the duty to inform the patient afterwards of complications that have arisen. The same considerations of doctor-patient relationship are applicable. These include the ability of the plaintiff to understand complicated medical problems, psychological considerations as to the best interests of the patient, the extent of the doctor’s own knowledge, and other factors which might affect not only the extent but also the timing of the information. These considerations also argue for the requirement that the duty of disclosure must be measured against applicable medical standards of disclosure in the professional community.” Tabor, 83 Ill. App. 3d at 905, 403 N.E.2d at 1353.

See also Green v. Hussey (1970), 127 Ill. App. 2d 174, 184, 262 N.E.2d 156, 161, and Sheahan v. Dexter (1985), 136 Ill. App. 3d 241, 248, 483 N.E.2d 402, 407 (expert testimony required in each case to establish standard of disclosure in informed consent cases).

The Ohio case of Phillips v. Good Samaritan Hospital (1979), 65 Ohio App. 2d 112, 416 N.E.2d 646, is even more explicitly on point. There a physician viewed a child’s arm X rays, diagnosed no fracture, and recommended only aspirin and an elastic bandage. Subsequently, a radiologist viewed the X rays and diagnosed a fracture. (Phillips, 65 Ohio App. 2d at 113, 416 N.E.2d at 647.) The radiologist dictated his diagnosis for later reporting and mailing by a hospital secretary, but somehow the information was never communicated to the treating physician or to the child’s parents. (Phillips, 65 Ohio App. 2d at 113-14, 416 N.E.2d at 648.) The court held that expert testimony was necessary to establish whether the radiologist had a duty to directly contact the treating physician with his diagnosis. (Phillips, 65 Ohio App. 2d at 117, 416 N.E.2d at 650.) The court stated:

“The exigencies of the medical situation may call for correspondingly different levels of response. Severity of condition, urgency of treatment, potential for interim injury, suffering from delayed response, need for further analysis and consultation, and the patient’s awareness of the extent of injury or the nature of the condition may all be relevant in ascertaining the necessary course of conduct in reporting a diagnosis. *** As we have stated, the form of communication depends on all the facts of the case and it is an issue best left to the trier of fact. It is particularly appropriate that the trier of fact make this assessment through the informed consideration of each indicium of medical fact, drawing what it believes to be the most reasonable inferences that in turn counsel the appropriate level of response.
This appropriate level of response as to the need for communication must necessarily depend upon expert testimony in order to establish such factors as the immediacy of need for treatment as it relates to the diagnosis and the harm likely to result from inattention.” Phillips, 65 Ohio App. 2d at 117, 416 N.E.2d at 649-50.

See also Merriman v. Toothaker (1973), 9 Wash. App. 810, 515 P.2d 509 (testimony of treating physician held to establish standard of care on facts similar to those in Phillips, but issue not raised as to whether expert testimony was necessary).

In Nash v. Wilkinson (1992), 1992 U.S. Dist. LEXIS 9458 (Ks. Dist.) (not reported in F. Supp.), a patient was treated and released from an emergency room based on a tentative diagnosis of reflux esophagitis. (Nash, slip op. at 3.) When it was discovered that the patient’s EKG report had been misinterpreted, the medicál center unsuccessfully attempted to reach the patient by phone at his family’s residence in the area and later at his home in Colorado. Through constant attempted telephone calls to the patient’s home at 15-minute intervals, the patient was contacted 10 hours after the misdiagnosis was discovered. The patient sued the medical center and the doctor for failure to take appropriate, timely action to notify him of his cardiac condition so that emergency care could be obtained. Nash, slip. op. at 3.

The United States District Court, in granting the medical center’s motion for summary judgment, held that expert testimony was required as to any deviation from the applicable standard of care. The court stated that “the extent of any duty to locate and notify [plaintiff] would be determined by the potential differential diagnosis of the EKG and the seriousness of the situation, and would require the testimony of an expert familiar with the standard of care applicable to hospital emergency departments.” Nash, slip op. at 4.

The standard of care in this case regarding the duty of the clinic to notify the plaintiff is dependent on factors similar to those listed in the Phillips and Nash cases cited above. Each of those factors involves the application of medical judgment. This medical judgment encompasses an evaluation of plaintiff’s medical condition, the imminency of harm, and the severity of possible consequences that would follow from deferred or delayed notification. These considerations are substantially medical in nature and cannot be determined by a lay jury alone without gross speculation.

Consequently, since no such medical testimony was provided to establish the standard of care regarding notification by the clinic, the verdict of the jury cannot be sustained. “Where a plaintiff has failed to produce any evidence on a vital element of the case, directing a verdict for defendants is proper and required.” (Stevens v. Sadiq (1988), 176 Ill. App. 3d 333, 336, 530 N.E.2d 1159, 1161.) Because plaintiff has failed to present any expert testimony to establish the applicable standard of care, the trial court erred in denying defendant’s motion for a directed verdict in its favor.

Reversed.

McNULTY and COUSINS, JJ., concur.