text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDREW PITTMAN, Defendant-Appellee.
    Fourth District
    No. 4-90-0801
    Opinion filed July 18,1991.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The State appeals from an order granting defendant’s motion to suppress evidence. Because we find that the search in question was appropriately conducted incident to an arrest, we reverse.

Defendant, Andrew Pittman, was present in the single-family dwelling located at 601 East Williams Street in Danville, Illinois, on April 12, 1990, when officers of the Danville Metropolitan Enforcement Group, armed with a search warrant, entered the premises. The search warrant authorized the search of Allan McKinney and the premises of 601 East Williams Street. Before arriving at the residence, the officers had discussed procedures they intended to use regarding the large number of people they expected to find within the residence, and they decided to secure and handcuff anyone they found inside to avoid the use of weapons or the destruction of evidence. Upon entering the residence, the officers came upon eight people in the living room, one of whom was defendant. The officers ordered them to lie on the floor and handcuffed them as the house was secured. As the eight people in the living room were restrained, the officers noticed marijuana, as well as other drug paraphernalia, in plain view on a nearby coffee table.

Officer Larry Wilson of the Danville police department testified about the raid as follows:

“Q. [Defense attorney:] Now — and you have spoken of a search. In what manner or means was the search conducted with respect to each of the individuals?
A. Once everyone was secured and we knew the house was safe, I started to — I went by the front door; and we were trying to determine who was going to be placed under arrest and see how the investigation went. We saw drugs in open view at the time; so everyone remained on the floor until they were picked up by officers. I believe Officers Showers assisted me. He brought the individuals over to me if they were handcuffed. Then he let them go, searched them, and then I got proper identification for each individual in the house.
* * *
Q. [State’s Attorney:] You indicated that upon entry in plain view there were those drugs. Would you relate to the Court where they were and what you saw.
A. There was marijuana in plain view on a coffee table; paraphernalia laying [sic] around. Officer Showers also related that he saw a pillow put down on top of what we found to be later about an ounce of cocaine. When he saw it, it wasn’t in open view; but the pillow he saw being placed over it at that time. He saw that.
Q. So at the time that you actually — you physically entered the residence you could see cocaine or one of the officers saw cocaine lying out that was later covered by an individual in the residence?
A. He saw the movement of the pillow covering something up as I understand it.
Q. Actually, you saw marijuana laying [sic] on the table out in the open where anyone could grab it?
A. Yes, but not on my immediate entry. After the house was secured, it was obvious that that stuff was out there.
Q. Now, when you say ‘after the house was secured,’ what do you mean by that?
A. Once the house — once everyone was placed on the floor and handcuffed and we knew that there was no one else in the house, everyone was instructed not to touch any evidence even though it was in plain view; and once the house was secured, officers were telling me what they were observing, and then I could also see the marijuana and paraphernalia in open view.”

One by one, the individuals who were lying on the living room floor were released from their handcuffs and searched. A complete pat-down search was performed in addition to a search of every pocket. When defendant was searched, one of the officers recovered a bottle from one of defendant’s pockets. The bottle was a very small brown glass bottle with a black plastic cap. There was a white residue inside the brown bottle. The bottle was confiscated by the officers, subsequently tested, and found to contain less than one gram of cocaine. As a result, defendant was indicted on the charge of unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)).

Before trial, defendant filed a motion to suppress the bottle. After hearing testimony, the court granted the motion and stated the following:

“THE COURT: The Court, after reviewing the authority, finds that the Motion to Suppress should be allowed. This is a case under which these cases are controlling.
Clearly, under the search warrant, the officers were not legally entitled to search other occupants of the premises. There must, under the law, be an independent basis of probable cause to believe that this Defendant had committed or was committing an offense. The fact that he is present in a residence in which drugs are readily viewable and available does not support that finding under the ease law.
Further, there is no articulated reason to believe that this Defendant, this particular Defendant, was armed and dangerous; so even if you are talking about a Terry type of frisk, we don’t have that situation here.
Further, the evidence in this case is that it was a complete search. And that’s not justified under the constitution. So the Motion will be allowed.”

The State appeals from that order.

The trial court’s decision on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Fuentes (1980), 91 Ill. App. 3d 71, 73, 414 N.E.2d 876, 879.) Defendant’s argument, which the trial court accepted, was that his search was unlawful under the authority of Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338. In response, the State argues to this court (as it did to the trial court) (1) that the search of defendant was a valid search incident to an arrest, .and (2) that the police had probable cause to arrest defendant (and the other people present in the living room) based upon the close proximity to him of the illegal drugs and paraphernalia in the living room of the house. We agree with the State.

The issue in Ybarra was the extent to which police officers may search any person found on the premises being searched pursuant to a search warrant. (Ybarra, 444 U.S. at 87, 62 L. Ed. 2d at 243, 100 S. Ct. at 340.) As opposed to the present case, the Supreme Court in Ybarra noted that the “police *** had no reason to believe that [defendant] had committed, was committing, or was about to commit any offense under state or federal law.” Ybarra, 444 U.S. at 91, 62 L. Ed. 2d at 245,100 S. Ct. at 342.

To sustain a conviction for unlawful possession of cannabis, the State must prove the identity of the substance in question, that defendant had knowledge that the substance was present, and that he had actual or constructive possession of the substance. (People v. Lenoir (1984), 125 Ill. App. 3d 260, 264, 465 N.E.2d 1027, 1030.) Defendant argues that in order for the police to make an arrest for such a charge, they “must have probable cause to believe that the defendant had actual or constructive possession of the substance.” We agree, but we find the evidence presented in this case to be sufficient.

“Probable cause exists when the totality of the facts and circumstances known to the officer making the arrest is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. [Citations.] Probable cause need not be based on evidence sufficient to convict (People v. Neal (1985), 111 Ill. 2d 180, 193[, 489 N.E.2d 845, 849-50]), and the calculation concerns the probability of criminal activity and not proof beyond a reasonable doubt. [People v.] House [(1990)], 141 Ill. 2d [323,] 370[, 566 N.E.2d 259, 280].” People v. Miller (1991), 212 Ill. App. 3d 195, 201, 570 N.E.2d 1202,1207.

In People v. Rentsch (1988), 167 Ill. App. 3d 368, 370-71, 521 N.E.2d 213, 215-16, the court discussed the concept of “constructive possession” as follows:

“Constructive possession ‘ “is that which exists without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion.” (People v. Fox (1962), 24 Ill. 2d 581, 585, 182 N.E.2d 692.)’ [Citations.] *** Mere access by other persons to the area where drugs are found is insufficient to defeat a charge of constructive possession.”

Based upon the authority of Rentsch (and the cases cited therein), the law regarding “constructive possession” may be stated as follows: If two or more persons share the immediate and exclusive control or share the intention and the power to exercise control over a thing, then each person has possession. When the facts in the present case are viewed in accordance with this standard, we find that the police had probable cause to arrest the eight people in the living room situated in close proximity to the coffee table upon which the marijuana was found.

Although we are reluctant to reverse a trial court’s findings in regard to a motion to suppress, we note that the trial court never addressed in its findings whether the presence of the marijuana in close proximity to defendant was sufficient to provide probable cause to arrest defendant and to search him incident to his arrest, despite the prosecutor’s argument on that very point.

Reversed and remanded for further proceedings.

GREEN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    WARREN ACHIEVEMENT CENTER, INC., Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    Third District
    No. 3 — 90—0502
    Opinion filed July 10,1991.
    — Rehearing denied August 20, 1991.

      Law Offices of James P. Baker, of Springfield (James P. Baker, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Roxy Schumann, of Davenport, Iowa, for respondent Charles Patterson.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The petitioner, Warren Achievement Center (hereinafter Warren), appeals an order by an Illinois Human Rights Commission (hereinafter Commission) administrative law judge who found for the complainant, Charles Patterson (hereinafter Patterson). The administrative law judge’s decision finding Warren had discriminated against Patterson on the basis of race and gender was affirmed by a three-member panel of the Commission. We affirm.

Warren, a not-for-profit corporation, provides various services for the developmentally disabled and senior citizens in a four-county area. Warren’s board of directors establishes internal policies that are carried out by the chief administrative officer, Jo McVey. The various program directors report to McVey, who has the authority to hire and fire them. The program directors had authority to engage or terminate the employees within their individual programs.

Patterson began working for Warren in 1962. During his employment, he received several promotions, including director of the transportation program in 1975. His responsibilities included hiring and training employees, writing grants for transportation, and overseeing and coordinating the transportation program. Patterson, black, always received favorable evaluations from McVey even though he believed she disliked him because he interracially married.

During 1985, Mary Connell was employed by Warren as a living skills trainer. The program director of her unit was Dugan Strom. Patterson’s responsibilities included occasionally contacting Connell in order to coordinate transportation for employees within her unit. On April 11 and 15, 1985, Connell received telephone calls from Patterson in which he asked her if he could call her at home. Even though she claimed to be upset or disturbed by these alleged overtures, she did not request disciplinary action be taken against Patterson. On April 18, Connell became concerned about a conversation with Patterson in which he asked her to go with him for a ride. On April 19, Connell requested Strom discuss these incidents with Patterson. Strom and Patterson were equivalents, so the only disciplinary action Strom could take was to contact McVey, which Connell requested Strom not do. After additional alleged incidents occurred, Connell then decided to initiate formal action with McVey.

McVey met with Patterson, advised him that she had complaints by way of documentation that he sexually harassed Connell. McVey told Patterson he would therefore have to resign his position or be fired. He was given three hours to vacate his job. McVey found Connell’s complaints believable because of her truthful reputation. McVey experienced similar situations in the past with Patterson and believed that Patterson had not been truthful.

Patterson lists several factors which he contends undermine Connell’s credibility and the reliability of her complaints. These factors include: (1) Connell did not appear to be offended by Patterson’s conduct or remarks at the time they were made, which was evidenced by the fact that Connell failed to formally complain about Patterson for a considerable time; (2) Connell had been personally involved in litigation concerning deceptive practice; (3) Connell prepared her hearing testimony with the assistance and coaching of Warren’s attorney, even though she initially denied the same; (4) Connell failed to produce a diary of the dates when Patterson allegedly engaged in harassing Connell, even though she repeatedly referred to this diary during her testimony; and (5) McVey was predisposed and biased towards Patterson because she did not approve of his interracial marriage.

Patterson filed a complaint with the Illinois Department of Human Rights shortly following his termination from his employment with Warren. The Department referred the matter to the Commission, alleging that Warren discriminated against Patterson on the basis of race and gender. An administrative law judge found in favor of Patterson. That decision was affirmed by a three-member panel of the Commission.

Warren suggests the findings of the administrative law judge and the Commission were erroneous. We disagree. The judge found Patterson proved his case by a preponderance of the evidence in that he established Warren’s explanation was purely pretextual, which was sufficient to find against Warren under Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.

This case originated under the disparate treatment theory, which requires proof directly or indirectly of an employer’s discriminatory motive. To prove the motive indirectly, a complainant may establish discrimination by inference. (Burnham City Hospital v. Human Rights Comm’n (1984), 126 Ill. App. 3d 999, 467 N.E.2d. 635.) Every complainant must prove a prima facie case of discrimination by a preponderance of the evidence. In order to do so, the complainant must show the following: (1) he is a member of a group protected by the law; (2) he was treated in a certain manner by the employer; and (3) he was treated differently than similarly situated employees who are not members of the protected group. (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.) Thereafter, the employer must sufficiently articulate legitimate nondiscriminatory reasons that it undertook to terminate the complainant. Finally, the complainant must then prove by a preponderance of the evidence that he was the subject of intentional discrimination. Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 448 N.E.2d 958.

Patterson established that he was a black male who met his employer’s expectations, was forced to resign, and was replaced by a white male. Warren responded by stating Patterson was terminated because it was firmly believed that he sexually harassed a fellow employee. Patterson then established by direct and indirect evidence that Warren intentionally discriminated against him through the following evidence: (1) there was an insufficient investigation into the complaints; (2) he did not receive a hearing regarding his termination; and (3) he did not receive an opportunity to present evidence or explanation of his version. In addition, he established sufficient inference of the continued bias of McVey to the judge’s satisfaction.

In order to indirectly show a pretextual explanation, a claimant must show that the explanation was not worthy of belief. (Burnham City Hospital v. Human Rights Comm’n (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.) A decision such as this is better made by a trial judge, who hears the evidence and observes the demeanor of the witnesses. A reviewing court should not overturn a decision of the Commission unless that decision is contrary to the manifest weight of the evidence. (K mart Corp. v. Human Rights Comm’n (1984), 129 Ill. App. 3d 842, 473 N.E.2d 73.) There is a legal presumption that the Commission’s decision is correct, unless it is contrary to the manifest weight of the evidence. (Department of Corrections v. Clay (1985), 135 Ill. App. 3d 710, 481 N.E.2d 1080.) A decision is against the manifest weight of the evidence when, after reviewing the evidence in the light most favorable to the administrative agency, the reviewing court determines that no rational trier of fact could agree with the agency’s decision because an opposite conclusion is clearly warranted. (Quincy School District No. 172 v. Human Rights Comm’n (1990), 197 Ill. App. 3d 694, 555 N.E.2d 21.) The trial judge is in a superior position to make such factual determinations. He is in a better position to resolve evidentiary and factual conflicts. Finally, the trial judge is in the best position to analyze the weight of the evidence and the credibility of the witnesses who appear before him at trial.

If the record contains any evidence to support the Commission’s decision, the decision should be upheld. It is not the function or duty of a reviewing court to retry the case, reanalyze the facts and evidence, or substitute its judgment for that of the presiding judge. (Quincy School District No. 172 v. Human Rights Comm’n (1990), 197 Ill. App. 3d 694, 555 N.E.2d 21.) There is ample evidence in this record to support the findings of the administrative law judge. The findings are not against the manifest weight of the evidence.

Therefore, based on the foregoing analysis and reasoning, the findings and decision of the Illinois Human Rights Commission are hereby affirmed.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


author: JUSTICE SLATER PRESIDING JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES A. WHEELER, Defendant-Appellant.
    Third District
    No. 3 — 90—0184
    Opinion filed July 19,1991.
    — Rehearing denied August 27,1991.

      STOUDER, P.J., dissenting.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Charles A. Wheeler, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(b)(1)) and sentenced to 20 years in prison. The defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the defendant was denied a fair trial because he was precluded from having an expert witness examine or interview the complainant; (3) whether the defendant was denied a fair trial by the exclusion of certain expert testimony; (4) whether the jury was improperly instructed; and (5) whether improper comments and arguments by the prosecution denied the defendant a fair trial. We affirm.

Cheryl K., the complainant’s mother, testified that she married the defendant in November of 1977 and that they had a child in February of 1978. Cheryl and the defendant separated when complainant was nine months old and they were subsequently divorced. Complainant had no further contact with the defendant until February of 1987. This visit came about because complainant wanted to see her real father. Defendant lived in Princeton, Illinois, while complainant and her mother lived in Davenport, Iowa. After this first visit, complainant wanted to see the defendant again. Arrangements were thus made for complainant and her father to spend two or three weekends together. During that period of time, complainant talked very highly of her father and seemed to be happy that he was a part of her life, according to Cheryl. Complainant also spent the summer of 1987 with defendant.

Cheryl testified that complainant went away to camp during the summer of 1988. In August of 1988, Cheryl, complainant, and the rest of the family moved to Decatur. They returned to Davenport a month or so later. In December of 1988, complainant said that she wanted to see the defendant again. Complainant visited the defendant on two or three weekends in January of 1989. The defendant would pick up the complainant on Friday night or Saturday morning and bring her back home on Sunday evening. Although Cheryl and the complainant were fairly sure that one of the weekends was January 14 and 15 because of Martin Luther King’s birthday, they were uncertain about the dates of the other weekends. Cheryl agreed that prior to January, complainant had remarked on several occasions that she wanted to live with her father.

Cheryl further testified that complainant might have spent her last weekend alone with defendant in February of 1989. Complainant visited the defendant again, as late as Easter of 1989, but not alone. On July 14, 1989, Cheryl suggested that complainant spend part of the summer with her father. Complainant started crying and said that defendant had sexually abused her.

The complainant, who was 11 years old at the time of trial, testified that she first saw the defendant in February of 1987, when she was nine years old. She visited defendant two or three times in January of 1989. She thought the last time that she was alone with the defendant might have been the weekend of Martin Luther King’s birthday. Complainant testified that during this last visit, the defendant asked her to sleep in his room. She got into his bed wearing a nightgown and underwear. The defendant got into bed naked. He kissed complainant on the cheek and put his tongue in her mouth. Complainant stated that the defendant told her that what they were doing was practice for when she grew up. Defendant then rubbed her vagina with his hand and took off her underwear. While holding her legs apart he kissed her vagina. Complainant said that her legs began to shake and the defendant told her that that happened to all women. The defendant then rolled over on his back and had the complainant get on top of him. After the complainant refused to put the defendant’s penis in her mouth, he told her to squeeze his penis, which she described as hairy and stiff, and “sticky stuff” came out. The complainant testified that while this was occurring, the defendant was licking her vagina and was panting “[l]ike a dog does after it gets done running.” The complainant also stated that the defendant told her that she felt like her mother. At one point the defendant asked her if she would like him to stop, but when she said yes, he said he could not. The complainant said that the defendant told her not to tell anyone or he would go to prison forever. She testified that she did not tell anyone right away because she was scared.

The complainant further testified that she and the defendant had engaged in similar conduct on “about two” other weekends in January of 1989 and “more than 10” times prior to that. Complainant stated that she thought that defendant first sexually abused her two or three weeks after they met. At that time, the defendant was living with Cathy Cannon. The complainant agreed that she may have told the police that the sexual contact began in June of 1987 after the defendant and Cannon broke up, and that she slept in defendant’s bed most of that summer. The complainant stated that it was her idea to reinitiate contact with the defendant in January of 1989. When asked why she would do so if she had been abused in the past, she replied that she thought the defendant would change.

Elsie (Pat) Elmore testified that she conducts child abuse and neglect investigations for the Iowa Department of Human Services. On July 14, 1989, she went to the complainant’s residence in response to a call and interviewed the complainant and her mother. The facts related by the complainant to Elmore were consistent with the complainant’s testimony related above, including the defendant’s alleged statements that he couldn’t stop and that he would go to prison if the complainant told anyone. The complainant also told Elmore that before the defendant would leave he would breathe as though he had been running hard and was out of breath. According to Elmore, the complainant told her that the defendant began sexually abusing her the first time she visited him.

Pamela Klein, a psychotherapist involved in psychological counseling and consultation, testified that she interviewed the complainant. Based on her interview, she determined that the complainant exhibited symptoms consistent with rape trauma syndrome. On cross-examination, Klein testified that her findings were based solely on her interview with complainant; she did not examine the complainant’s school records or medical records.

The final prosecution witness was Gary Swanson, an investigator with the Princeton police department. Swanson testified that he interviewed the complainant and her mother on July 19, 1989. The complainant told Swanson that she spent the summer of 1988 at defendant’s house in Princeton and that, during that summer, she slept most nights in his bed. The complainant’s description of sexual abuse was consistent with her testimony at trial. In addition, the complainant demonstrated what had happened with anatomically correct dolls. She told Swanson that the last incidents occurred on three weekends in January and she thought the dates were December 31 of 1988 and January 14 and 28 of 1989.

Swanson also testified also concerning a second interview conducted on August 3, 1989. The complainant described essentially the same sexual activities during the second interview that she had during the first, although she stated that she spent the summer of

1987 at her father’s home, not the summer of 1988. She also said that the last incidents occurred on the weekends of January 8 and 14, 1989.

A number of alibi witnesses testified for the defense regarding weekends in January and February of 1989. Cathy Cato, an old friend of the defendant, testified that she was at the defendant’s house from 3 p.m. to 7:30 p.m. on Saturday, December 31, 1988, and she did not see the complainant. Vickie Burda, defendant’s half-sister, gave essentially the same testimony as Cato.

Patricia Briddick, who dated the defendant from November of 1988 through the third week of January 1989, testified that she met the defendant at a bar on Saturday night, December 31, and stayed at his house until 5 p.m. on Sunday, January 1. Briddick also met the defendant at the same bar on the following three Saturday nights, those being the 7th, 14th, and 21st of January 1989. On each of those nights she stayed at the defendant’s house until the following Sunday. On none of those occasions, according to Briddick, was the complainant staying at the defendant’s house. Briddick also testified that in the early morning hours of January 15, she and several other people went to the defendant's house for a party after the bar closed. Nancy Lorang, an acquaintance of the defendant, corroborated Briddick’s testimony that the defendant was at the bar on the 7th, 14th and 21st, and that there had been a party at the defendant’s house on the 15th.

Michael Pluemer, the defendant’s brother-in-law and the former owner of the painting company for which the defendant worked, testified that the defendant worked from 4 to 8 p.m. on Friday, January 13, in Marseilles, Illinois. Pluemer testified that he was ■with the defendant from 10 a.m. to 2 p.m. on Saturday, January 28, moving paint cans and storing them at the defendant’s house. In addition, Pluemer stated that he and the defendant were together the following day, January 29, from 8:30 a.m. to 6:30 p.m., loading a U-Haul trailer. Pluemer testified that he did not see the complainant on these occasions.

Louella Kory, the defendant’s mother, testified that on Sunday, January 22, 1989, she, the defendant, and other family members went to Iowa City, Iowa, at 1 p.m. and remained there until the following day. In addition, Kory testified that the defendant was at her home in Streator, Illinois, from 1 to 4 p.m. on Saturday, February 4, and from 10 a.m. on Sunday, February 12, until 10 a.m. the following morning.

Terry DeSalle, a co-worker of the defendant, testified that he usually went to the defendant’s house at 8:15 a.m. and had a cup of coffee while the defendant finished getting ready for work. DeSalle testified to various dates that the defendant worked, including: January 7, until 11:30 a.m.; January 14, until 11 a.m.; January 21, until 2:30 p.m.; January 30; and February 4, until noon. DeSalle stated that he never saw the complainant on any of those dates.

Michelle Baker, the defendant’s niece, testified that she lived at the defendant’s house from November of 1988 until January of 1989, although she did not sleep there all the time. Baker testified that she moved out of the defendant’s house on the weekend of January 7 and 8 and that the complainant was not there that weekend. Baker also testified that she never saw the complainant at the defendant’s house the entire time that she lived there. Bob Besix, Baker’s boyfriend, testified that he helped Baker move out of the defendant’s house on the weekend of January 7 and 8 and he did not see the complainant.

Bonnie Pluemer, the defendant’s sister, testified that the defendant left for Iowa City on Sunday, January 22, 1989, at about 1 p.m. and stayed there until the following day. Pluemer also stated that the defendant helped her and her husband move on the weekend of January 28 and 29, that she was in and out of the defendant’s house on that weekend, and she did not see the complainant. Gayle Anderson, another of defendant’s sisters, testified that she cleaned the defendant’s house on Monday, January 16, 1989, and there were pizza boxes and filled ashtrays indicating that there had been a party that weekend. Anderson also testified that the defendant went to Iowa City on January 22, 1989.

Regina Hawk, a childhood friend of the defendant, testified that she had attended a birthday party for the complainant in February of 1989. According to Hawk, the complainant told her that she loved the defendant and that she was going to live with him forever. In addition to their testimony about the defendant’s whereabouts on various weekends in January and February of 1989, several witnesses testified that the defendant had a good reputation in the community for morality and decency.

Cathy Cannon, a former girlfriend of the defendant, also testified that the defendant’s reputation for morality and decency was good. Cannon further testified that she lived with the defendant from June or July of 1986 through the fall of 1987. Cannon was living with the defendant when the complainant first came to visit on February 14, 1987, when she came up for three or four subsequent weekend visits between February and June of 1987, and when the complainant spent the summer of 1987 in Princeton. Cannon felt that the defendant was a good father who was concerned with his daughter’s health, appearance, and study habits. Cannon testified that the complainant could not have been sleeping with her father because, except for the night of the victim’s initial visit with defendant and one other night in June in 1987, she was sleeping with the defendant.

The defendant testified that he first met his daughter on February 14, 1987, at his nephew’s wedding. Between then and the end of June, complainant visited the defendant and his girlfriend, Cathy Cannon, approximately every other weekend. Complainant then spent the summer of 1987 in Princeton with defendant and Cannon. The defendant denied having any sexual contact with complainant. Defendant testified that Cannon was living with him during this entire period of time and he was sleeping with her, not his daughter.

Defendant testified that after the summer of 1987, he saw complainant on several other occasions but she never spent the night alone with him and they had no sexual contact. Defendant further stated that he never saw the complainant in January of 1989.

The defendant also testified that after the complainant’s visits began he resumed a relationship with complainant’s mother, Cheryl, and spent some weekends at Cheryl and complainant’s house. After Easter of 1989, the defendant decided to end the relationship with Cheryl. Defendant and Cheryl subsequently had a fight over a tax refund check, after which defendant did not see complainant again. According to the defendant, in a fit of anger during the fight he told Cheryl that complainant was not his child. Cheryl subsequently told defendant, when he called to talk to complainant, that complainant did not want to talk to him because of what he had said.

The defendant also presented canceled checks he had written and cashed at a local bar dated January 6, 8, 14, and 21 of 1989. Following closing arguments and two days of deliberation, the jury returned a verdict of guilty.

The defendant first contends that he was not proved guilty beyond a reasonable doubt because the complainant’s testimony was neither clear and convincing nor substantially corroborated. The State responds that the proper standard of review in sex crimes cases is that the judgment will be upheld when, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267). We note that the first (People v. Stengel (1991), 211 Ill. App. 3d 337, 570 N.E.2d 391; People v. Byrd (1990) , 206 Ill. App. 3d 996, 565 N.E.2d 176), second (People v. Nicholl (1991), 210 Ill. App. 3d 1001, 569 N.E.2d 604; In re A.J.H. (1991) , 210 Ill. App. 3d 65, 568 N.E.2d 964), fourth (People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208; People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732), and fifth districts (People v. Meador (1991), 210 Ill. App. 3d 829, 568 N.E.2d 1386) have applied the Collins standard in reviewing convictions for sexual offenses, and we believe that a uniform standard of review in all criminal cases is preferable (see People v. Pintos (1989), 133 Ill. 2d 286, 294, 549 N.E.2d 344, 348 (“all claims of evidentiary insufficiency on review should be decided under a single standard”) (Miller, J., specially concurring)). We hold, therefore, that Collins enunciates the proper standard of review applicable in all criminal cases, including sex offenses, where a defendant challenges the sufficiency of the evidence.

Defendant first claims that the complainant was inconsistent concerning when the first and last instances of sexual abuse occurred. The dates on which sexual abuse began and ended are collateral matters, however, and minor inconsistencies do not destroy a complainant’s credibility. (People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283.) Defendant also points out that the complainant’s testimony that she never wanted to live with her father and never told anyone that she did was contradicted by other witnesses. Resolution of such conflicts in testimony is the province of the trier of fact, which is in a superior position to determine the credibility of the witnesses. People v. Escobedo (1986), 151 Ill. App. 3d 69, 502 N.E.2d 1263.

Defendant next contends that the conduct of the complainant in failing to report the sexual abuse until July of 1989 and in reinitiating contact with the defendant in January of 1989 after having allegedly been abused by him in 1987 casts doubt on the truthfulness of the complainant’s allegations. Failure by a young victim of sexual abuse to make a prompt complaint is excusable given the child’s natural sense of shame, fear, guilt, and embarrassment. (People v. Lybarger (1990), 198 Ill. App. 3d 700, 555 N.E.2d 1264; Escobedo, 151 Ill. App. 3d 69, 502 N.E.2d 1263.) We believe that such a delay in reporting sexual abuse is particularly understandable where, as here, the victim and the abuser are closely related. Similarly, we believe that the complainant’s age and relationship with her father, along with her expressed hope that “he would change,” adequately explained why she contacted the defendant even though he had abused her in the past.

The defendant further notes that the complainant testified that she told a school friend about the sexual abuse which occurred prior to January of 1989 and argues that the prosecution’s failure to call the friend as a witness constitutes a fatal weakness in the State’s case. We do not agree. In general, the State has no obligation to call all witnesses to a crime. (People v. Carruthers (1974), 18 Ill. App. 3d 255, 309 N.E.2d 659.) In this case the State presented the testimony of the complainant’s mother, child abuse investigator Pat Elmore, and Officer Gary Swanson to corroborate the complainant’s testimony. Additional corroboration by complainant’s school friend was unnecessary, particularly since it would not relate to any abuse which occurred in January of 1989.

Finally, the defendant contends that the complainant “arguably had a motive to lie” because she may have been upset over defendant’s decision to break off his relationship with complainant’s mother or by defendant’s statement that the complainant was not his daughter. Whether or not the complainant had a motive to lie, and more importantly, whether she was in fact lying or telling the truth, was a decision which the jury, which saw and heard the witnesses, was in the best position to make. (See People v. Evans (1990), 199 Ill. App. 3d 330, 556 N.E.2d 904.) The complainant’s testimony concerning the acts of sexual abuse was highly detailed, straightforward and consistent. Her identification of the defendant as the person who committed those acts was unwavering. Based on our review of the record we find that the defendant was proved guilty beyond a reasonable doubt. See Lybarger, 198 Ill. App. 3d 700, 555 N.E.2d 1264; Escobedo, 151 Ill. App. 3d 69, 502 N.E.2d 1263.

The defendant next maintains that he was denied a fair trial because he was not allowed to have his expert witness examine the complainant. Prior to trial, defendant sought an order compelling the complainant to undergo a mental examination, arguing that such an examination was necessary to enable him to counter the testimony of the State’s rape trauma syndrome expert. Alternatively, defendant’s motion sought to bar the rape trauma syndrome testimony. The trial court denied defendant’s motion, relying on sections 115 — 7.1 and 115 — 7.2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, pars. 115-7.1, 115-7.2).

The defendant acknowledges that section 115 — 7.1 prohibits a court from ordering a victim of sexual abuse to undergo a mental examination except where explicitly authorized by the Criminal Code or by supreme court rule. Defendant also recognizes that section 115 — 7.2 authorizes the admission of expert testimony relating to rape trauma syndrome. Defendant disclaims any attack on the validity of these statutory sections, but instead argues that the application of these sections deprived him of a fair trial because the State’s expert was allowed to interview the complainant and testify that she exhibited symptoms consistent with rape trauma syndrome, while the defendant was prevented from countering the State’s evidence with testimony from his own expert witness.

We agree with the defendant that the operation of sections 115 — 7.1 and 115 — 7.2, although perhaps unintended, tends to favor the prosecution and limits the defendant’s ability to refute the State’s rape trauma syndrome testimony. After a thorough review of the record, however, we are convinced that the defendant was not deprived of a fair trial by his inability to rebut the State’s evidence regarding rape trauma syndrome. We agree with defendant’s statement in his brief that the testimony of Pamela Klein, the rape trauma syndrome expert, “was not especially probative *** given her admissions that the symptoms comprising rape trauma syndrome were also found in other psychological syndromes and that she based her conclusion solely on her interview with [the complainant] despite the opinions of experts that a determination of sexual abuse should be corroborated by other evidence or sources.” A conviction will not be reversed where it does not appear that justice has been denied or that a finding of guilt resulted from an error. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612; People v. Wheeler (1990), 194 Ill. App. 3d 178, 550 N.E.2d 1170.) In light of the complainant’s detailed, clear, and convincing testimony of sexual abuse, we find that Klein’s testimony added little to the State’s case and that any error in admitting it or in preventing the defendant from refuting it did not affect the outcome of the trial and was harmless beyond a reasonable doubt.

Defendant next contends that the trial court erred in granting the State’s motion in limine preventing the defendant from presenting the testimony of two psychologists that he did not possess traits consistent with those of a pedophile. By presenting this testimony, the defendant sought to counter the testimony of the State’s rape trauma syndrome expert by showing that his personality traits were inconsistent with those of persons who sexually abuse children. While a defendant may introduce evidence to establish that his character traits are inconsistent with committing the crime with which he is charged, this must be shown only by evidence of general reputation and not by the personal opinion of the witness. (People v. Flax (1986), 147 Ill. App. 3d 943, 498 N.E.2d 667; People v. Flemming (1977), 47 Ill. App. 3d 755, 362 N.E.2d 691; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §405.2, at 205-06 (5th ed. 1990).) We find no error by the trial court in barring the testimony of the psychologists.

The defendant next maintains that the following jury instruction deprived him of a fair trial:

“The indictment states that the offense charged was committed on or about January 14, 1989. If you find the offense charged was committed, the State is not required to prove that it was committed on [or about] the particular date charged.” Illinois Pattern Jury Instructions, Criminal, No. 3.01 (2d ed. 198l)(hereinafter IPI Criminal 2d No. 3.01).

Defendant points out that the prosecutor told the jury in his opening statement that the evidence would show that the offense occurred in January of 1989, thereby “voluntarily assuming” that burden and misleading the defendant in preparing his alibi defense. Defendant further notes that during closing argument the prosecutor “ridiculed” the defendant’s alibi defense, referring to it as “this well constructed, minute by minute, hour by hour alibi for the month of January,” and later told the jurors to ask themselves if they “could go back to January, February and March of 1989 and reconstruct your life minute by minute, hour by hour. I mean, wasn’t that a little much[?]”

It has long been the general rule in Illinois that proof of the precise date alleged in an indictment is unnecessary unless the allegation of a particular time is an essential ingredient of the offense or a statute of limitations question is involved. (People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887; People v. Patrick (1967), 38 Ill. 2d 255, 230 N.E.2d 843; People v. Taylor (1945), 391 Ill. 11, 62 N.E.2d 683; People v. Kircher (1928), 333 Ill. 200, 164 N.E. 150; People v. Burton (1990), 201 Ill. App. 3d 116, 558 N.E.2d 1369; People v. Baugh (1986), 145 Ill. App. 3d 133, 495 N.E.2d 688; People v. Riddle (1986), 141 Ill. App. 3d 97, 489 N.E.2d 1176; People v. Long (1977), 55 Ill. App. 3d 764, 370 N.E.2d 1315.) Based on this rule, it has been held that it is proper to instruct the jury that the prosecution need not prove that the offense occurred on the date charged in the indictment. (People v. Robinson (1958), 14 Ill. 2d 325, 153 N.E.2d 65; People v. Vaughn (1945), 390 Ill. 360, 61 N.E.2d 546; People v. Olroyd (1929), 335 Ill. 61, 166 N.E. 462; People v. Barlow (1989), 188 Ill. App. 3d 393, 544 N.E.2d 947; People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376; People v. Neumann (1979), 76 Ill. App. 3d 112, 394 N.E.2d 901.) Notwithstanding the authorities cited above, we believe that giving IPI Criminal 2d No. 3.01 may result in reversible error where the inconsistencies between the date charged in the indictment and the evidence presented at trial is so great that the defendant is misled in presenting his defense or when he presents an alibi for the time alleged in the indictment and is thereby prejudiced because he failed to gather evidence and witnesses for the time actually proved by the State. See Kircher, 333 Ill. 200, 164 N.E. 150; People v. Escobedo (1986), 151 Ill. App. 3d 69, 502 N.E.2d 1263; People v. Eng (1985), 138 Ill. App. 3d 281, 485 N.E.2d 1222; People v. Steele (1984), 124 Ill. App. 3d 761, 464 N.E.2d 788; People v. Noll (1982), 109 Ill. App. 3d 306, 440 N.E.2d 335.

In this case we find that the defendant suffered no prejudice. The evidence presented to the jury showed that the sexual abuse occurred sometime in January of 1989 or when the complainant was visiting the defendant in 1987. The defendant presented alibi witnesses for January of 1989 and also presented the testimony of Cathy Cannon that she lived with the defendant in 1987 and that no sexual abuse could have occurred during that period. Defendant was therefore not prevented from presenting an alibi defense. Moreover, it is clear that the essence of defendant’s defense was that he never sexually abused the complainant, not merely that he could not have abused her in January of 1989. The jury rejected that defense, and under the circumstances, we find no error in giving IPI Criminal 2d No. 3.01.

Finally, the defendant cites to numerous comments by the prosecutor in his opening statement and in his closing and rebuttal arguments which defendant claims deprived him of a fair trial. The State responds that the defendant has waived any alleged errors because he only objected to a single statement by the prosecutor and failed to include the objection in his post-trial motion. A defendant must ordinarily object to an error at trial and include the objection in a post-trial motion to preserve it for review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, where the evidence is closely balanced or where the error adversely affected the defendant’s right to a fair trial, errors which have not been properly preserved may be reviewed under the plain error rule. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Given the complainant’s clear and detailed testimony, we are unable to say that the evidence in this case was closely balanced. We will therefore examine the prosecutor’s statements to determine whether they were so seriously prejudicial that the defendant was denied a fair trial. In so doing we are mindful of the fact that, as is often true in cases of this nature, the verdict was necessarily based upon the jury’s determination of the credibility of the witnesses, particularly that of the complainant and the defendant.

Defendant first argues that the prosecutor improperly bolstered the credibility of the State’s witnesses by investing them with the authority of his office. According to defendant, this began in the prosecutor’s opening statement when he introduced Princeton police officer Gary Swanson and Janelle Beltramini, director of the Child Protection Services Division of the Bureau County State’s Attorney’s office, both of whom were sitting at the prosecutor’s table, and told the jury that “we are all working together in this case.” The prosecutor then told the jury that Pat Elmore from the Iowa Department of Human Services investigated a report of sexual abuse and then “did what she is suppose [sic] to do” by notifying “all of us,” which led to an investigation by the Princeton police department, the Department of Children and Family Services, and the State’s Attorney’s office. The prosecutor also told the jury that rape trauma syndrome expert Pamela Klein was retained “by [his] office” to examine the complainant and “she’s qualified.”

An opening statement in a criminal trial should be an outline of the facts which each party expects to prove. (People v. Coleman (1989), 187 Ill. App. 3d 541, 543 N.E.2d 555.) The prosecutor’s introduction of Swanson and Beltramini and his statement that they were all working together merely stated the obvious and was not prejudicial. The references to Elmore and Klein simply provided factual details which were later proved at trial. With respect to Elmore, the prosecutor simply outlined what her responsibilities were once the report of sexual abuse had been received by the Iowa Department of Human Services. Similarly, informing the jury that Klein had been retained by the prosecutor’s office to conduct an examination of the complainant and that Klein was qualified were facts that the State intended to and did prove at trial. Informing the jury of the steps in the investigation of a crime is not improper (People v. Graham (1985), 132 Ill. App. 3d 673, 477 N.E.2d 1342), and we find no error.

The defendant also contends that it was improper for the prosecutor to refer to Swanson, Beltramini and himself as “we,” to thank the jury “on behalf of myself as the State’s Attorney [sic] of Bureau County, and on behalf of Officer Swanson and Mrs. Beltramini and [the complainant] and her mother,” and to ask the jury to return a verdict “on behalf of Gary Swanson and the Princeton Police Department, the Illinois Department of Children & Family Services, the Iowa Department of Human Services, on behalf of Mrs. Beltramini *** and finally on behalf of myself.” The defendant contends that these comments invested the witnesses with the authority of the State’s Attorney’s office and improperly bolstered their testimony, citing People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256. In Bitakis, however, the prosecutor pledged his personal reputation that a State’s witness was not a false one and gave his opinion of her veracity. In this case, the comments of the prosecutor complained of by the defendant did not have a similar effect and we find no error.

Defendant next complains that it was improper for the prosecutor to tell the jury during his opening statement that the complainant would testify about being abused “if she can get through it” and to state during closing argument that a child can’t be taught to lie about sexual abuse “in front of a packed courtroom.” We find nothing improper about the former comment, and the latter statement was merely a comment on the demeanor of the witness and was in response to the suggestion of the defendant’s attorney during cross-examination that the complainant’s testimony was rehearsed. We find no error.

Defendant next extracts nine phrases from the prosecutor’s closing argument which he maintains improperly invaded the province of the jury in deciding whether the complainant was a credible witness. Some of these are: “[s]he knows it happened”; “[t]his kid is not lying”; “what you heard here was the truth”; “she is not” lying; and “there is nothing so powerful as the truth as told from a child.” We have examined these remarks in context (see People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109), and we find them to be within the wide latitude granted to a prosecutor in closing argument (People v. Newell (1990), 196 Ill. App. 3d 373, 553 N.E.2d 722). For example, the first comment about which defendant complains was made in the context of explaining the problem that the complainant had in pinpointing when the sexual abuse occurred.

“I don’t know which of you or any of you have had traumatic events in your life, but if you call upon your experiences and observations in life, you remember those, every little detail, like you’re watching a movie. You can relate them back time and time again if they happen. You might not be able to say when you’re ten years old or even twenty [years] old or thirty years old, when it happened. And there was all kinds of confusion in this case as to when it happened. There is no question about it, Mr. Telford demonstrated that very well I thought about [the complainant] when he tried to use the blackboard. *** She is ten years old, she has no idea when it happened. She knows it happened, when it happened, maybe your guess is as good as mine.”

Another of the comments placed in context was:

“I [would] suggest to you respectfully that her confusion on collateral matters, whether [it] was January or August, she didn’t know the difference between January and August, those kinds of things show what you heard here was the truth because those things would have been nailed down but good ***.”

Many of the remaining remarks were made in the context of asking the jury to consider the reasonableness of different aspects of the complainant’s testimony. During closing argument a prosecutor may properly comment on the credibility of witnesses (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612; People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301), including the credibility of the complainant (People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283). Overall we find that the statements were permissible comments on the evidence or reasonable inferences drawn from the evidence. We find no error.

Defendant next points to four comments in which he claims that the prosecutor presented his own testimony to the jury and expressed his personal belief in the defendant’s guilt. Again, when these excerpts are placed in context, we do not find them to exceed the bounds of proper argument. For example, defendant cites the prosecutor’s statement that “children do not lie and fantasize about their father sexually molesting them” as error. However, preceding that remark the prosecutor stated:

“[A]sk yourself, is it reasonable, is it reasonable to believe that this girl and her mother concocted all of this[?] *** I would submit, Ladies and Gentlemen, that conclusion just isn’t raesonable [sic] to believe that. I mean, think about that, calling upon your experience and observations in life. What children lie about and what they don’t lie about. What they fantasize and what they don’t fantasize. Ladies and Gentlemen, children do not lie and fantasize about their fathers sexually molesting them.”

Obviously the prosecutor was not expressing his personal belief in the defendant’s guilt but was asking the jury to rely on their own experience in judging the complainant’s credibility. We will not lengthen this opinion by relating the other three comments complained of, but we have examined them and find no error.

The defendant next argues that the prosecutor “attacked the veracity of some of defendant’s alibi witnesses and chastised trial defense counsel for orchestrating a false alibi.” A prosecutor may comment on the credibility of defense witnesses (People v. Morrison (1985), 137 Ill. App. 3d 171, 484 N.E.2d 329), and merely questioning the validity and believability of defendant’s alibi is not improper (People v. Mitchell (1990), 200 Ill. App. 3d 969, 558 N.E.2d 559). We have examined the comments cited by the defendant and we find no error.

Defendant also contends that the prosecutor improperly commented on the defendant’s failure to produce a witness. Such a comment is permissible where, as here, it was made in response to defense counsel’s own reference to the State’s failure to call the witness. Richardson, 123 Ill. 2d 322, 528 N.E.2d 612; People v. Boone (1988), 180 Ill. App. 3d 98, 534 N.E.2d 1266.

Finally, defendant maintains that portions of the prosecutor’s closing and rebuttal arguments were calculated to arouse the prejudices and inflame the passions of the jury. The defendant complains of the following statements:

“You can send a loud and clear message with the guilty verdict that child abusers and their perverted and immoral and legal [sic] conduct will not be tolerated under any circumstances in this county. You know, that message can send forth a notice that laws that we have in this State protecting our young people from incest and from all forms of abuse will be fearlessly and fully enforced by juries in this county. That’s the notice that you can send. And you can tell children that their forthrightness, their honesty, their willingness to carry through on the trauma that goes along, will be believed. That’s what you can tell children all over, that it will be believed. And that they will be free from their abusers. Ladies and Gentlemen, I suggest to you that because the evidence proves guilt beyond a reasonable doubt that a not guilty verdict will send an exact opposite message to children. It will tell them you can’t come forward, you can’t withstand repeated interviews and examination by professionals and you can’t come into court and withstand cross ex-amiantion [sic] because that’s not enough to be believed. That’s what a not guilty verdict will send.”

In his rebuttal argument the prosecutor further stated:

“[W]hen you deliver your verdict, you are the conscience of Bureau County. You are the conscience of our community. And, Ladies and Gentlemen, because the proof has shown beyond a reasonable doubt, beyond a reasonable doubt, because that’s true, I suggest that you must uphold the law and you must send those messages and notices by returning a guilty verdict. It’s time for the people, the people to have their rights. You know, you are in a unique posiiton [sic] to do that. You know, the people have a right, children have a right, everywhere and particularly where we are concerned here in Bureau County to live free of this. Not only the victims, but the rest of us. We have a right to demand that children do not suffer through this. Anything less than a guilty verdict, Ladies and Gentlemen, would be an injustice for the people and for children, not to mention [the complainant], but children everywhere.”

It is not improper for the prosecutor in closing arguments to denounce the accused, dwell upon the evil results of crime, and urge the fearless administration of the law. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357; People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301; People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448; People v. Petty (1987), 160 Ill. App. 3d 207, 513 N.E.2d 486.) While we believe that some of the prosecutor’s statements unnecessarily appealed to the jurors’ emotions, we find no substantial error, nor do we find that the cumulative impact of any of the errors alleged by the defendant deprived him of a fair trial.

For all the reasons stated above, we affirm the judgment of the circuit court of Bureau County.

Affirmed.

GORMAN, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

Respectfully, I must dissent.

It is well-established that a criminal defendant’s right to present witnesses in his defense is a fundamental right guaranteed by the compulsory process clause of the sixth amendment to the Federal Constitution. (See U.S. Const., amend. VI; Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646.) Section 115 — 7.1 of the Code of Criminal Procedure of 1963 (Code) provides in relevant part that no court may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.1.) The purpose of this statute is to prevent defense attorneys from harassing complainants by forcing them to submit to such an examination in order for the defense to attempt to attack a complainant’s credibility or competency to testify at trial. In the instant case, however, the majority’s application of the statute leads to an unjust and unreasonable result unintended by the legislature.

In ascertaining the legislature’s intention, the entire statute must be considered, as well as the evil to be remedied and the object to be attained. (People v. Jones (1985), 134 Ill. App. 3d 1048, 481 N.E.2d 726.) Those cases interpreting this statute have applied it primarily to the issue of whether the complainant was competent to testify at trial. In contrast, the majority here interprets the statute as allowing the State to examine a complainant for symptoms of rape trauma syndrome, and, when such symptoms are found, to close off any attempt by the defendant to have an expert likewise examine the complainant. As such, it would be an unjust result to allow the State to open the door to such testimony and still retain the ability to shut the door on any subsequent attempt by the defendant to counter such testimony.

Furthermore, in the instant case, the defendant did not request to have his expert examine the complainant for purposes of showing that she is incompetent to testify at trial. Rather, the basis of the defendant’s request is to allow for the possibility of impeaching the testimony of the State’s expert witness regarding rape trauma syndrome. Thus, in stark contrast to those cases interpreting section 115 — 7.1, the defendant’s actions in the instant case cannot be described as a matter of harassing the complainant. Therefore, I find the trial court’s reliance on the above-mentioned statute to be misplaced.

Moreover, the Indiana Supreme Court recently addressed a similar issue in Henson v. State (Ind. 1989), 535 N.E.2d 1189. In Henson, the court reversed the defendant’s sexual-offense convictions and remanded the case for a new trial due to the trial court’s denial of the defendant’s attempt to use expert testimony to show that the complainant’s conduct was inconsistent with rape trauma syndrome. The court found that it would be fundamentally unfair to allow the use of rape trauma testimony by the State and then deny its use by a defendant. The court further found the trial court’s ruling impinged upon the substantial rights of the defendant to even present a defense.

In addition, section 115 — 7.2 of the Code provides in relevant part that in a prosecution for an illegal sexual act perpetrated upon a victim, expert testimony by a behavioral psychologist, psychiatrist or physician relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.2.) If the State, following section 115 — 7.2, can interview a complainant for purposes of making a professional expert judgment as to whether she suffers from rape trauma syndrome, then certainly the defense should be allowed to make a similar examination of the complainant for this limited purpose. If the legislature meant for section 115 — 7.2 to be employed solely by the State, they could have said so.

I also disagree with the majority’s application of the harmless error rule to this issue. Many jurisdictions recognize that testimony about rape trauma syndrome is highly prejudicial because it tends to incriminate the defendant in the eyes of the jury by creating the inference that the complainant was raped. (See People v. Taylor (1990), 75 N.Y.2d 277, 552 N.E.2d 131; State v. Black (1987), 109 Wash. 2d 336, 745 P.2d 12; People v. Bledsoe (1984), 36 Cal. 3d 236, 681 P.2d 291, 203 Cal. Rptr. 450; State v. Saldana (Minn. 1982), 324 N.W.2d 227.) The instant case hinged upon the credibility of the witnesses. Unlike those cases cited by the majority, the record here does not include substantial or even minimal corroboration of the complainant’s charges, and there was a long delay between the dates of these purported acts and the actual reporting of them to the authorities. Further, I find the complainant’s testimony to be less than clear and convincing. It is significant, moreover, that the jury also considered the testimony of the State’s witness regarding the complainant having the symptoms of rape trauma syndrome. In a close case such as this, considering the highly prejudicial nature of the expert testimony, it can hardly be considered harmless error to allow the State to present rape trauma syndrome testimony to the jury while denying the defendant the same opportunity. In addition, although the issue of the admissibility of rape trauma syndrome testimony was not presented, I find such testimony to be highly prejudicial. I agree with the substantial number of jurisdictions that refuse to allow such testimony to be presented at trial. The major import of such testimony is to significantly enhance the credibility of the complaining witness to such a degree that it takes away a primary function of the jury.

The trial is a truth-seeking vehicle rather than a forum for gamesmanship. (R. Ruebner, Illinois Criminal Procedure 245 (1987).) In the instant case, denying the defendant the opportunity to have an expert examine the complainant to possibly counter the rape trauma syndrome testimony does little to enhance the pursuit of truth in the courtroom and creates juror confusion at the expense of due process. Accordingly, due to the inherently prejudicial effect of the rape trauma testimony by the State’s expert, I find the denial of the defendant’s attempt to examine the complainant with one of his experts to be reversible error.

For these reasons, I must respectfully dissent.


author: PRESIDING JUSTICE STOUDER

text:
    CITIZENS UTILITIES COMPANY OF ILLINOIS, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3 — 90—0704
    Opinion filed July 16,1991.
    — Rehearing denied August 26,1991.

      Chapman & Cutler, of Chicago (Daniel J. Kucera, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Elizabeth Wallace, Matthew J. Dunn, Joseph J. Annunzio, and William Seith, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.
    George A. Marchetti and Barry L. Moss, both of Moss & Bloomberg, Ltd., of Bolingbrook, for respondent Village of Bolingbrook.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Petitioner, Citizens Utilities Company of Illinois (Citizens), appeals from a ruling of the Illinois Pollution Control Board (Board). This is the fourth appeal to this court of the instant matter. This action involves a request by Citizens that the Board adopt certain site-specific water quality and effluent rules applicable to one of Citizens’ wastewater treatment plants. A thorough summary of the procedural and factual background of this case can be found in the first two appeals. (See Citizens Utilities Co. v. Pollution Control Board (1985), 134 Ill. App. 3d 111, 479 N.E.2d 1213 (Citizens I); Citizens Utilities Co. v. Pollution Control Board (1987), 152 Ill. App. 3d 122, 504 N.E.2d 224 (Citizens II).) Meanwhile, we recently decided the third appeal of the instant matter. See Citizens Utilities Co. v. Pollution Control Board (1991), 213 Ill. App. 3d 864.

Briefly, Citizens operates a sewage treatment plant in Will County known as the West Suburban Wastewater Treatment Plant No. 1. At the time it was built, the plant discharged treated water sufficient to meet secondary treatment standards. This discharge was released into the Lily Cache Creek (Creek), a tributary of the Du Page River and a part of the Du Page River Basin. In 1972, pursuant to new legislation, the Board adopted water quality standards applicable to all streams in Illinois. For the most part, the standards were “general use” standards, applicable uniformly to all streams, whether narrow creeks or wide streams, no matter where located. Citizens desires site-specific relief from the general use standards and has proposed its own modification from the general use standards.

Section 27(a) of the Environmental Protection Act (Act) provides in part:

“The Board may adopt substantive regulations *** [that] may make different provisions as required by circumstances for different contaminant sources and for different geographical areas *** and may include regulations specific to individual persons or sites. In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the areas involved, including the character of surrounding land uses, zoning classifications, the nature of the *** receiving body of water, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.” Ill. Rev. Stat. 1989, ch. 111½, par. 1027(a).

Citizens contends that the Board failed to abide by our previous decision in Citizens I. In Citizens I, this court reversed the Board’s order and directed the Board to determine the costs and benefits of Citizens’ proposal. The Act requires the Board to make such a determination. (Citizens Utilities Co. v. Pollution Control Board (1985), 134 Ill. App. 3d 111, 116, 479 N.E.2d 1213.) The Board, however, failed to abide by our decision and make the necessary cost/benefit analysis at the economic impact hearings held on remand.

The Department of Energy and Natural Resources (DENR) is authorized to prepare an economic impact study regarding the proposed regulation. (111. Rev. Stat. 1989, ch. 961/2, par. 7404(a).) The Board argues that the DENR study prepared in the instant case did not satisfy the cost/benefit evidence requirement and that Citizens actually had the burden of proof to show, on remand, that the general use standards were arbitrary, unreasonable, or capricious. The Board also blames Citizens for the inadequacies of the DENR study. This argument, however, ignores what this court held in Citizens I.

In Citizens I, this court decided that the obligation lies with the Board to make the required changes to the economic impact study should the Board feel that changes needed to be made and that it was up to the Board or the Illinois Environmental Protection Agency (IEPA) to add whatever additional evidence it deemed necessary to make the required cost/benefit analysis. Moreover, at the most recent hearing on remand, Citizens commented that it found the DENR study to be complete and that if the Board found the DENR study to be incomplete, then the Board should supplement it. In response, the Board made no supplementation of the record.

After reviewing the DENR study, it is obvious why the Board chose to consider it incomplete and to give it little weight. The DENR study shows that the cost of forcing Citizens to comply with the general use standards far outweighs the few benefits to the creek that might accrue should Citizens make the modifications to its plant. The DENR study found that even assuming the most pessimistic assumptions regarding the negative impacts of Citizens’ proposal are true, the cost/benefit ratio favors Citizens’ proposal by a margin between 16 to 1 and 26 to 1. The DENR study concluded that “it is obvious that there are strong economic arguments for approving the Citizens proposal.”

The Board further ignored the dictates of Citizens II with respect to economic impact. Section 27(b) of the Act provides in relevant part:

“The Board shall conduct at least one hearing on the economic impact of those new regulations, and shall receive comments from the public regarding the study of the economic impact of those proposals prepared by the Department ***. In adopting any such new regulation, the Board shall consider those elements detailed in the Department’s study and the Board shall, in its written opinion, make a determination, based upon the Department’s study and other evidence in the public hearing record, as to whether the proposed regulation has any adverse economic impact on the people of the State of Illinois.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 111½, par. 1027(b).)

In Citizens II, this court held that economic impact related to the impact on the community. (Citizens Utilities Co. v. Pollution Control Board (1987), 152 Ill. App. 3d 122, 504 N.E.2d 224.) The Board, however, focused on the reasonableness of the expenditure for Citizens. In essence, the Board erred in focusing on Citizens’ ability to pay for the modifications to its plant without taking into account the economic impact on the ratepayers of Citizens in the form of increased rates.

In any case, this court is again confronted with an order of the Board decided without the Board making the required determination as to the economic impact of its decision. Where the administrative record is inadequate or incomplete, we must remand the proceeding for the making of a more complete record. Citizens, in order to receive a fair hearing, comporting with the statutory requirements, is entitled to have the Board confront the issue of the economic impact of the proposed regulatory change. Therefore, this case must be remanded for further proceedings before the Board.

For these reasons, we vacate the decision of the Pollution Control Board and remand this case for further proceedings.

Reversed and remanded.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE SLATER JUSTICE GORMAN,

text:
    FARMERS STATE BANK OF McNABB, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees (Carol A. Pelz, Defendant).
    Third District
    No. 3 — 90—0512
    Opinion filed July 26,1991.
    GORMAN, J., dissenting.

      William J. Wimbicus, Jr., of Spring Valley, and Scott Madson, of Princeton, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

The plaintiff, Farmer’s State Bank of McNabb (bank), appeals the circuit court’s judgment affirming an administrative order by the Board of Review of the Hlinois Department of Employment Security (hereinafter Board). That order allowed unemployment benefits to a former employee of the bank, Carol A. Pelz (claimant). The issue before this court is whether the Board erred in finding that the claimant did not engage in “misconduct” as that term is defined by statute. We affirm.

Claimant was hired by the bank in August of 1953. She progressed to a position as assistant cashier in 1969. In December 1971, her employment changed from full-time to part-time status. She maintained that position until she was forced to resign on April 15, 1988. Her responsibilities had been diminished over this period, particularly after a change of senior management in 1987. At the time of her discharge, the claimant was working three days per week and did not supervise any bank employees.

At some point, many years before the principal events of this case took place, the bank’s internal auditors implemented a system whereby certain items that previously had been held at the back of the tellers’ drawers would be put in a central storage location referred to variously as “drawer five” or “box five.” Items that would be put into drawer five included redeemed United States Savings Bonds, tom currency, certain checks requiring endorsements, and certain checks which would have resulted in overdrafts if put through the normal processing channels. As part of the daily reconciliation process, the total dollar amount of the items in this drawer was counted as cash, thus permitting the bank’s books to balance. The person assigned to determine the amount of the items in this box on any given day did not necessarily determine the amount of each item, but often relied on subtotals written on the face of envelopes containing items of the same type.

Most checks put into drawer five were placed there as accommodations to customers of the bank where special arrangements had been made to permit customers to rectify problems with endorsements or to deposit money to prevent overdrafts. Normally, the customers would take the necessary action within a few days, at most. Aside from customers, however, there had been various occasions when some of the employees, officers, and directors of the bank had been allowed to deposit money to prevent overdrafts in their personal checking accounts. To accomplish this, the checks which would have caused the overdrafts were kept in drawer five for a short period of time until the necessary deposit would be made.

In February and early March of 1988, an employee of the bank took advantage of this system. The employee arranged to have three of her personal checks, totaling over $12,000, diverted from the normal processing channels and put into an envelope in drawer five. The effect of this was that the checks were paid by the bank, but the corresponding amounts were not debited to the employee’s checking account. Claimant first discovered this state of affairs on March 15, 1988, when she was doing some work in connection with drawer five and inspected the contents of the envelope containing the three checks. The claimant testified as follows before a hearing referee of the Illinois Department of Employment Security:

“Q. [Claimant’s attorney:] What *** if anything did you do after you made this discovery?
A. I went to one of the other long time employees *** and asked her if she knew that Darlene [the employee whose checks were in the box] had checks in No. 5, and she said, yes that she did. She’d been aware of it for a couple of weeks.
Q. Had you seen those particular checks any time earlier than March 15th?
A. No.
Q. *** [D]id you consider whether or not you should report this incident to management that day, the 15th?
A. Well I was shocked when I saw them, and I went to [the other long-term employee], and [she] said that she had been aware of it for a couple of weeks and that she had talked to Darlene and Darlene said she was going to take care of it.
* * *
Q. [Bank’s attorney:] When [was it that] you first became aware that Darlene *** had these overdrafts, what date again did you state that was, March 15th?
A. I wasn’t aware that she had an overdraft. I was aware that she had checks in there on March the 15th but [sic] evidently she didn’t have the money for, or she wouldn’t have them in there. And I didn’t, I didn’t go check her account at that time.”

The claimant next worked on March 18, 1988. Upon discovering that the employee’s checks were still in drawer five, she confronted the employee. The employee assured the claimant that the checks would be covered soon by payments from a government agricultural program for which she and her husband had applied. While claimant had serious doubts about whether the employee would cover the checks, she did not notify management of the situation on that day.

When claimant next worked on March 21, 1988, she found that the employee’s checks were still in drawer five. Claimant testified concerning what happened next before the hearing referee as follows:

“Q. [Claimant’s attorney:] What happened on [March 21, 1988]?
A. On that day I told [the other long-term employee] that I was going to go and tell management about the situation, if she wanted to come with me, that was fine, and if she didn’t, I’d do it on my own. And she said she thought that we should, she would come with me and she thought that we should tell Darlene first what we were going to do.
So [she] and I did, we took Darlene into the board room and told her that we were going to have to tell that she had checks in there. And she asked if she, if we wanted her to tell. And I said, I don’t care who tells, but somebody is going to have to tell before I go home tonight. So she said she would tell Tom, the Loan Officer.”

Around three o’clock that afternoon the employee whose checks were in drawer five talked to the loan officer. Afterwards the claimant met with the loan officer to make sure that he had been advised of the extent of the problem.

On April 15, 1988, the claimant was called to a meeting at the bank. She was then presented with and requested to sign a resignation. Bank officials told her that she would be fired if she did not sign it immediately. She signed the proffered form, but later sought to rescind her resignation. The bank refused to allow claimant to return to work at the bank.

On May 25, 1988, the claimant applied for unemployment benefits from the Illinois Department of Employment Security. After her claim was denied, she appealed the denial to a referee. The referee conducted a hearing at which witnesses were sworn, and which was later transcribed. On August 1, 1988, the referee found the claimant to be ineligible for unemployment benefits for having engaged in “misconduct” as that term is defined in section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)). The claimant appealed next to the Board, which on April 6, 1989, reversed the decision of the referee, finding that the claimant’s conduct was not a “deliberate and willful” violation of the bank’s rules or policies. The bank filed its complaint for administrative review in the circuit court on May 2, 1989. The circuit court affirmed the decision of the Board, finding the Board’s decision not to be against the manifest weight of the evidence. The bank appealed the circuit court’s decision to this court.

Section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)) states in relevant part:

“An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work and, thereafter, until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks ***. *** For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.”

In cases involving disputes over eligibility for unemployment benefits, it is the decision of the Board that is subject to review, not that of the referee. (See Carroll v. Board of Review (1985), 132 Ill. App. 3d 686, 690, 477 N.E.2d 800, 803.) The findings and conclusions of the Board on questions of fact shall be held to be prima facie true and correct. See Ill. Rev. Stat. 1987, ch. 48, par. 520; Ill. Rev. Stat. 1987, ch. 110, par. 3-110.

The statutory definition of misconduct requires violation of a reasonable rule or policy of the employing unit. (Ill. Rev. Stat. 1987, ch. 48, par. 432(A).) The Board found that the bank had no rule requiring an officer or an employee to report to management a situation such as occurred in this case.

A finding of misconduct requires a finding of a deliberate and willful violation of a reasonable rule or policy of the employer. (Ill. Rev. Stat. 1987, ch. 48, par. 432(A).) The Board found that the bank had a longstanding practice of allowing the use of drawer five to hold checks of officers and employees until funds could be deposited to cover the checks. This practice was confirmed by the testimony of John McKirgan, the bank’s former long-time employee and president. Therefore, the Board did not accept the bank’s argument that the claimant’s failure to report the use of drawer five in this manner constituted a deliberate and willful violation of a reasonable rule or policy of the bank, particularly where there were no formalized rules or policies on the subject. The record is uncontradicted that there were no formalized rules concerning the use of drawer five.

The Board concluded that “the claimant’s action can, at most, be characterized as an error in judgment and not a willful disregard of duties owed the employer.” The Board noted that it was through the efforts of the claimant that the problem ultimately came to the attention of management.

The statutory definition of misconduct requires that the violation harm the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit. (Ill. Rev. Stat. 1987, ch. 48, par. 432(A).) Since no other employees were harmed and since the violation here was never engaged in before by the claimant, the claimant can only be found to have engaged in disqualifying misconduct if the violation harmed the bank.

The bank claims that it was harmed because it was threatened with loss of bonding coverage if it did not discharge the claimant. While this might be a good argument, and might even be true, the record fails to substantiate that the bank indeed was so threatened. The only evidence in the record on this point is a letter to the bank from the bank’s insurance agency indicating that the agency was referring the matter to the insurance carrier. The agency’s letter reminded the bank of certain policy provisions requiring termination of coverage for involved persons if a fraudulent act would have been discovered by an officer who then failed to report the matter. While the letter attached a copy of the relevant section of the insurance policy, the version in the record is illegible. We will not simply accept the agency’s characterization of the effect of the policy language without support in the record. Furthermore, there is no evidence in the record that the insurance carrier actually demanded that the claimant be discharged in order to continue coverage.

The Board found that since the bank had already paid out funds on the checks in drawer five prior to the claimant’s discovery of them, the bank was not harmed by the delay of six days (three working days) between the time the claimant discovered the checks and the time the matter was brought to the attention of management.

The bank asserts the claimant was discharged for allegedly failing to report the misapplication of funds by her co-worker within 48 hours of discovery to a superior in a manner enabling the bank to comply with State reporting requirements. The statute cited by the bank for this position is section 47 of the Illinois Banking Act (Ill. Rev. Stat. 1987, ch. 17, par. 358), effective August 21, 1987, which provides, in pertinent part, as follows:

“[A]ny bank which is a victim of a robbery, a shortage of funds in excess of $10,000 or of the apparent misapplication of the bank’s funds by an officer, employee or director, shall report such robbery, shortage or apparent misapplication to the Commissioner within 48 hours from the date discovered.” (Ill. Rev. Stat. 1987, ch. 17, par. 358.)

There is nothing in the record to support the bank’s position on this issue. The bank had no formalized rules concerning drawer five and no specific rule limiting the duration of time a check could be held in drawer five. Furthermore, the record is devoid of any testimony that the aforementioned statute had been brought to the attention of this claimant or any bank employee.

The record establishes that it was the claimant who ensured that the misapplication of funds by the co-worker was brought to management’s attention. The Board found the claimant’s acts, at most, can be characterized as an error in judgment and not a willful disregard of duties owed the bank. We agree.

The Board found that claimant was discharged for reasons other than misconduct connected with her work and that she was not subject to disqualification of benefits under the provisions of the Unemployment Insurance Act. There is ample evidence in the record to support this finding.

In reviewing the factual findings of an administrative decision, a reviewing court may not reweigh the evidence or substitute its judgment for that of the administrative agency. See Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688 (“It is axiomatic that a reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact”); Berry v. Edgar (1989), 192 Ill. App. 3d 455, 459, 548 N.E.2d 575, 578 (A court on review of an administrative decision may not “reweigh the evidence or make an independent determination of the facts”).

Courts may not interfere with the discretionary authority of administrative agencies unless the authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 513, 475 N.E.2d 879, 885; Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) Wide latitude must be given to an agency’s exercise of its discretion. (Neff v. Miller (1986), 146 Ill. App. 3d 395, 401, 496 N.E.2d 1073, 1078.) If any evidence fairly supports the action of an administrative agency, its decision is not against the manifest weight of evidence and must be sustained on review. (Berry, 192 Ill. App. 3d at 459, 548 N.E.2d at 578.) Stated another way:

“It is well settled that the factual findings of an administrative agency are deemed prima facie true and correct and the agency’s decision based thereon may be disturbed by a court sitting in administrative review only where that decision is contrary to the manifest weight of the evidence. [Citation.] A decision is contrary to the manifest weight of the evidence only when, after reviewing the evidence in a light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision ***. If the record contains any evidence supporting the administrative agency’s decision, the decision must be sustained on review. [Citation.]” Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 193-94, 524 N.E.2d 1172, 1174-75.

In addition, an administrative agency’s decision is not contrary to the manifest weight of the evidence merely because the court may have decided the case differently in the first instance. (Collura v. Board of Police Commissioners (1985), 135 Ill. App. 3d 827, 835-36, 482 N.E.2d 143, 147.) None of the Board’s findings were against the manifest weight of the evidence.

Additionally, although a court is not formally bound by an agency’s interpretation of law, it should accord substantial weight and deference to the interpretation of a statute which the agency administers and enforces. City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1149; Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 536, 508 N.E.2d 1058,1062.

The judgment of the trial court upholding the findings and order of the Board of Review of the Hlinois Department of Employment Security is affirmed.

Affirmed.

McCUSKEY, J., concurs.

JUSTICE GORMAN,

dissenting:

I respectfully dissent.

In order for an employee to be guilty of misconduct within the meaning of section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)), there must be a rule or policy of the employing unit which the employee has violated (see Ill. Rev. Stat. 1987, ch. 48, par. 432(A)). However, the rule or policy involved does not necessarily have to be written or otherwise formalized. Standards of behavior which an employer has a right to expect constitute reasonable rules and policies. (See Bandemer v. Department of Employment Security (1990), 204 Ill. App. 3d 192, 195, 562 N.E.2d 6, 7.) A bank has a right to expect that its officers and employees who discover a significant misapplication of bank funds will promptly bring that to the attention of management. That legitimate expectation constitutes a reasonable rule or policy within the meaning of those terms in section 602(A).

A finding of misconduct requires a finding of a deliberate and willful violation of a reasonable rule or policy of the employer (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)). The Board essentially argues that since the bank had a long-standing practice of allowing the use of drawer five to hold checks of officers and employees until funds could be deposited to cover the checks, and since the bank had no formal rules or policies regarding this practice, the claimant had no notice that the offending employee’s conduct constituted a misapplication of bank funds. Without such notice, the argument goes, the claimant could not have deliberately and willfully violated the unexceptionable, though unstated, rule or policy requiring prompt reporting of misapplications of bank funds. This argument would have considerable merit if the checks had been in drawer five for only a few days when the claimant discovered them. However, that was not the case.

The claimant's testimony makes it clear that when she discovered the checks at issue on March 15, 1988, she immediately realized that this was a situation unlike the situation where an officer or employee had a check in drawer five overnight or for a few days. If inspection of the checks at that time did not reveal to the claimant that they had been in drawer five for approximately two weeks, then her discussion on that date with the other long-time employee revealed that fact to her. Her persistence in pursuing the matter until it was resolved shows concern for the bank’s interests, but it also shows her awareness that the matter was beyond the scope of the long-standing practice of allowing officers and employees to keep checks in drawer five for at most a few days and that it constituted a serious problem.

While the claimant’s motive for acting as she did seems to have been to protect the bank’s interests without unnecessarily exposing a fellow employee to some potentially serious sanctions, a good motive such as this will not insulate the claimant from being found to have engaged in misconduct as defined by section 602(A). The claimant had no right to give the offending employee additional time to rectify the problem at the bank’s peril, which is essentially what the claimant did. The evidence is clear that the claimant realized that a misapplication of funds had occurred, deliberately and willfully delayed almost a week in reporting the problem to management, and in so doing violated the reasonable rule or policy that misapplications of bank funds be reported to management promptly after their discovery.

The Board argues that since the bank had already paid out funds on the checks in drawer five before the claimant discovered them, the bank was not harmed by the delay of six days between the time the claimant discovered the checks and the time the matter was brought to the attention of management. This view of harm is too limited. It ignores the harm of almost a week’s exposure by the bank to further losses from further checks that might have been put through the system and into drawer five by the employee whose checks were already in drawer five. A deliberate and willful violation of a reasonable rule or policy, where the violation will result in a substantially increased risk of loss by the employer, is precisely the kind of behavior which merits a denial of unemployment benefits. The record shows that the bank was harmed by the violation of a reasonable rule or policy.

The soundness of financial institutions is of great public concern. It is critical that misapplications of funds from such institutions be detected and reported promptly to prevent further misapplications and to allow recovery of funds already misapplied. In my view, to hold that a bank officer could delay almost a week in reporting what she had to know was a misapplication of bank funds and only be guilty of an error in judgment contravenes public policy. To hold otherwise permits awarding of unemployment benefits where the statute and public policy dictate that such benefits should not be awarded.

I believe this court should reverse the decision of the circuit court. Accordingly, I dissent.