author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD W. DOUGLAS, JR., Defendant-Appellant.
    Fourth District
    No. 4—88—0482
    Opinion filed May 17, 1989.
    Modified on denial of rehearing June 14, 1989.

      Daniel D. Yuhas and Peter L. Rotskoff, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On May 6, 1988, defendant Richard W. Douglas, Jr., was found guilty by a jury sitting in the circuit court of Adams County of committing two counts of the offense of aggravated criminal sexual assault and one count of unlawful restraint, in violation of sections 12— 14 and 10 — 3, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14, 10 — 3). He was subsequently sentenced to 15 years’ imprisonment on each sexual assault conviction, and three years’ imprisonment on the unlawful restraint conviction, with said sentences to run concurrently. Defendant now appeals alleging numerous errors.

The trial commenced on May 3, 1988, with the testimony of Sharon Tedrow, who is employed as a supervisor of the dispatchers for the Quincy police department. On October 22, 1987, at approximately 8:35 a.m., the department received a telephone call from K.H. This conversation was automatically recorded and played for the jury.

The transcript establishes K.H. was distraught and frightened for her life. She stated she had been raped, and named the defendant as the perpetrator. She further stated she had been confined for 18 hours against her will; defendant had her car keys; defendant had a gun; and she had locked defendant out of the apartment and was frightened he would return. Tedrow kept K.H. on the telephone until the police arrived at K.H.’s location.

K.H., the victim, testified she is 27 years old and resides in Springfield. On October 21, she traveled to Quincy, where she met her friend, Teresa Dodd, and they visited another friend at the hospital. After leaving the hospital, they went to various bars, starting at 5:30 p.m., before arriving at the Casino Starlight Terrace at approximately 11:30 p.m. with another friend. K.H. had been drinking throughout the night and had consumed approximately six drinks of tequila and lime juice. She stayed at the Casino until closing time at 2:30 a.m. About 6 p.m., she had, unbeknownst to Dodd, injected some cocaine intravenously. This has the same effect as drinking 10 to 12 cups of coffee and lasts about two hours. By 2:30 a.m., she was feeling the effect of the alcohol, but she was not drunk.

Shortly after they arrived at the Casino, she met defendant. She knew him from attending grade school, with him in Quincy. At the time, K.H. and Dodd were seated next to the dance floor, and he came up to them. He spent some time at their table, and they all danced together. At closing time, he asked K.H. for a ride home and she agreed. K.H. got her car keys from Dodd and told Dodd she would be right back.

K.H. and defendant left and, since there were police outside and she had been drinking, she asked defendant to drive. Defendant then began driving around for quite awhile. K.H. asked to drive, but defendant would not let her. Eventually, he pulled over on a dirt road and stopped. She started to open the door to get out, but he grabbed her left arm and leaned across her closing the door. He then pushed her car seat down, climbing on top of her and twisting her left hand behind her head while she struggled. He pulled her skirt up and her panties and pantyhose off. While she struggled, he told her, “I could kill you right now and throw you off the bridge and no one would ever find your body.” He repeated this several times, and she believed him. At one point, she tried to frighten him off by saying she had genital herpes, and he told her he had AIDS. He then had forcible intercourse with her.

Afterwards, he climbed back into his seat and continued driving. He went to a car window pay phone and made a call, stating he had to call his cousin. K.H. tried again to exit the car, but defendant held her arm. They then went to some apartments. When defendant exited the car, K.H. attempted to lock the doors, but he was able to get them unlocked, and he dragged her out of the car. K.H. was screaming while she was in the car but, once he opened the door, he grabbed her by the throat, and she was unable to continue doing so. He took her to an apartment which contained a lady and a little girl. K.H. was struggling and attempted to ask for help, but defendant forced her down the hall into the bedroom.

Once inside the bedroom, he pushed her on the bed and held her by her throat and arm to keep her quiet. Later, after it became light out, she heard the apartment occupants get up and leave. Defendant then forcibly had sexual intercourse with her. Again, he made threats to her. They then went to get a drink of water. She saw her car keys on the counter and took them without him seeing her. She then ran to the apartment door and fled outside screaming for help and asking someone to call the police. Defendant caught up with her from behind, grabbed her by the throat, cutting off her screams, and dragged her back into the apartment.

He put her in a chair and started looking for the car keys. At that point, there was a knock on the door, and defendant, looking through the peephole, noticed it was the police. K.H. did not scream because she did not wish to agitate defendant, and she was not sure if the police would break the door down. Eventually, since they did not answer, the police left.

She then told defendant the police would not leave because her car was outside, and there was a warrant for her arrest. There was no outstanding arrest warrant, but she hoped he would go outside. He recommenced looking for the keys and called the lady from the apartment on the phone looking for them. She pretended to find the keys and gave them to defendant. When he went outside, she locked the door and called the police. Once the police were on the line, she lost all control and is not even sure what she said. The police then arrived back at the apartment.

At the hospital, she had them examine her left wrist because she believed her arm was broken. She also had her throat examined. Her throat hurt for over one week, and she had trouble talking and swallowing. She had bruises on her throat, chest, upper arm, and wrist.

Since the assault, K.H.’s life has been adversely affected. She weighed 148 pounds before the attack and, in February, was below 110. She and her husband no longer go to movies if they contain any violence. She also cannot go into a convenience store if a black person is there. She had never been afraid of black people before and, in fact, had black friends. She quit her job and is in counseling. Immediately afterwards, she developed a cleaning obsession since she always felt dirty. She shaved all the hair off her body except her head hair. She cannot sleep without medication, and her marriage is in difficulty.

Teresa Dodd, K.H.’s friend, testified next. She was with K.H. the entire evening. Dodd drove to the Casino in K.H.'s car because K.H. had been drinking and she was not. K.H. was not drunk but had begun feeling the effect of the drinks. Defendant came up to their table at the Casino and began speaking to them. At closing time, she heard him ask K.H. for a ride home. When she gave the keys to K.H., she asked how long she would be gone. K.H. told her it would be about five minutes and asked if she wished to go along. Dodd declined. She never saw K.H. flirt or encourage defendant.

James Clapp, a friend of Dodd’s, testified he was working at the Casino on the night in question. He overheard K.H. talking with Dodd at closing time. She told Dodd she was going to give defendant a ride home and would be right back.

Florence Albert lives in the Cardinal apartment complex in Quincy. She shares a common wall with the apartment of Candice Green. On October 22, between 3 and 3:30 a.m., she was awakened by loud noises. They eventually stopped. Again, between 7 and 7:30 a.m., she heard a loud slam and some more noises which she could not identify.

Fern Bowen also lives in the Cardinal complex. On the morning of October 22, she was doing laundry in the laundry room of the complex between 7:30 and 8 a.m. She was pushing her laundry cart along the parking lot when a young white girl came running out of a building crying and screaming for help. A black man chased her down, grabbed her by the head or throat, and dragged her back into the building. The girl was struggling, attempting to get away. Bowen called the police and directed them to the building in question. The police left. A short time later, she saw the black man come out, look around, and go back into the building. The police returned soon thereafter.

Mildred Ward lives in the complex down the hall from Candice Green. On the morning of October 22, she heard a girl yell for help. A short time later, the police arrived, and she told them what she heard. After they left, she heard a loud slam. She looked out and saw a young man run outside. He stood still looking everywhere and then ran fast, got into a car, and sped off. The police returned soon thereafter.

Steve Albert, a Quincy police officer, went to the Cardinal Apartments in response to the first call. He spoke with Ward, but was unable to raise anyone in the other apartments. So he left. In about 10 minutes, he received another call to go to apartment No. 33 at the complex and speak with K.H. When she opened the door, the first thing she did was hug him. Her hair was messy, her clothes were disorganized, and her makeup was running. She was crying uncontrollably, and her eyes were red and swollen. She had an abrasion on her neck which appeared to be finger marks. Her arms were red and swollen. During the interview, she indicated she was going to be sick and left the room. He was with her for over one hour, and she never calmed down. She did not appear to be under the influence of alcohol or drugs.

Later that day, Officer Albert received a telephone call from a person identified as Richard Douglas. Albert told him to come to the police station to talk. Defendant wanted to know if he was going to be arrested and if he should bring bond money. Defendant then told Albert where he could find K.H.’s car.

Brenda Williams, an investigator with the Quincy police department, arrived shortly after Officer Albert. She observed that K.H. was very nervous and her face was flushed. Her voice was shaky, and she was stammering as she spoke to Albert. She was trembling like a small, frightened child. She held her coat pulled tightly about her and kept flexing her fingers into the fabric. At times, she would completely hide her face in the coat.

Williams took K.H. to the hospital. When she exited the car, K.H. hid her face in her coat, stating that if anybody saw her, they would know why she was there. At the hospital, Williams observed bright red marks and scratches on K.H.’s throat. She also saw bruises on K.H.’s arms, and that her left wrist was swollen. Later that afternoon, she reinterviewed K.H. K.H. started out quietly but became ill and vomited in the office when discussing the possibility of becoming pregnant.

Investigator James Rost described K.H. as being hysterical and crying very hard while at the apartment. Officer James Cress found K.H.’s car in the Puzzle’s Bar parking lot with the keys on the console. Shoes, panties, and pantyhose were found in the car.

Donna McCain was the nurse on duty in the emergency room when K.H. came in. When she first saw K.H., K.H. was crying and appeared disheveled. K.H.’s emotions changed frequently between crying, laughter, and anger. K.H. told McCain, as part of the background information, that she was raped twice and that she struggled the whole time. K.H. also told her that the assailant stated he had AIDS. McCain did not observe anything to lead her to believe K.H. was under the influence of drugs or alcohol.

Philip Sallee, a forensic serologist, testified concerning tests he ran. Seminal material was discovered on K.H.’s skirt, in her vagina, and on the seat of her car. This material could have come from defendant.

Susan Carr was the State’s final witness. She is the executive director at the Rape Information and Counseling Service in Springfield. After voir dire, the court determined she qualified as an expert witness concerning the rape trauma syndrome and related stress. Carr explained that post-traumatic stress disorders are a cluster of symptoms observed in people who have experienced a traumatic event. The rape trauma syndrome is a subcategory of post-traumatic stress disorders and has a cluster of symptoms specific to it which rape victims exhibit. Originally, it was thought the syndrome had three stages, but now it is accepted that there are five.

Carr counseled with K.H. four times, with the first being on October 26. K.H. expressed a fearfulness of being left alone. K.H. had an intense aversion to the clothes she was wearing at the time of the incident and to the vehicle involved. She had a need to feel clean by constant bathing. She stated she shaved all the hair off her body. There was also a detachment from what she was talking about. Carr stated all these are consistent with symptoms suffered by someone suffering from rape trauma syndrome.

Carr was also present when K.H. testified. She observed K.H. suffered severe stress when recollecting events around the incident. K.H. showed outbursts of anger and irritability, and did not look at the jury. Carr stated these behaviors are also consistent with the rape trauma syndrome.

Defendant’s first witness was Candice Green, defendant’s cousin. She resides at the apartment in question with her young daughter. Around 3 a.m., on October 22, she received a telephone call from defendant asking that she leave the door open. A short time later, he showed up with a white woman. He entered the apartment first, followed by her. He did not have a hold of her. They talked for 5 or 10 minutes while defendant played with the little girl. They then went back to the bedroom. In the morning when Green arose, the woman was in the bathroom, and Green entered the bedroom to get her clothes. She left for work by 7:30 a.m. Shortly after she got to work, she received a telephone call from defendant looking for the car keys. She acknowledged she has a close relationship with defendant.

Defendant testified he arrived at the Casino about 9 p.m. on October 21. He was coming off the dance floor when K.H. walked past and called his name. He spent some time at her table and danced with K.H. While they were dancing, she asked if he knew where she could get some cocaine. He told her he might be able to help. He noticed the bloodstain on her arm from shooting up with cocaine. At closing time, she told him she wanted to go in her car, but she wanted to get rid of her friends. He suggested she tell them she was giving him a ride home. They got the keys from Dodd and left. She let him drive because he knew where the cocaine was.

They drove to various spots but could not find anyone home. They then parked and began talking. Soon they were kissing and starting sexual relations. She said she did not want to have sex in the car. He suggested they call his cousin, which he proceeded to do. In the car, there was no struggle, nor did she resist his advances. He also was not restraining her.

At the apartment, he walked in first, and K.H. followed. They spoke with Green for a while and then went back to the bedroom. The next morning, while K.H. was in the bathroom, Green came in and got some clothes. After Green left, he and K.H. voluntarily had sexual relations again.

Later, he was looking for the car keys and could not find them. He called Green, and she told him they were on the counter, where he found them. K.H. became insistent on going to get some cocaine. She got antsy and ran outside. He followed and grabbed her, bringing her back to the apartment. He put both arms around her and picked her up. He did not grab her throat. He never heard K.H. scream for help. He also did not understand why she was running towards the car since he had the keys. Shortly thereafter, he heard sirens, and there was a knocking at the apartment door. He believed it was the police. No one answered the door. After a while, the two of them began sneaking out of the apartment complex. K.H. suddenly ran back into the apartment, slammed the door, and would not let him in. He got into her car and drove it to Puzzle’s, leaving it there and getting a ride from someone at Spanky’s Furniture Store.

He heard the police wished to speak to him. He called them around noon. They wanted him to come in and talk. He thought they were going to arrest him over the taking of the car. That is the reason he inquired if he would need bond money.

Defendant was charged with two counts of aggravated criminal sexual assault and one count of unlawful restraint. The jury found him guilty of all charges. At the sentencing hearing, the court noted defendant had a previous conviction for criminal sexual abuse. Accordingly, the court sentenced him to serve concurrently 15 years’ imprisonment on each sexual assault conviction and three years’ imprisonment on the unlawful restraint conviction. Defendant now appeals. We affirm.

Defendant’s initial contention is that he was not proved guilty beyond a reasonable doubt of the offense of aggravated criminal sexual assault. Defendant first contends that K.H.’s testimony was not clear and convincing, nor was the testimony sufficiently corroborated to support a conviction. We disagree.

Allegations of sexual misconduct are easily made, hard to prove, and harder to defend. (People v. Nunes (1964), 30 Ill. 2d 143, 146, 195 N.E.2d 706, 707.) Accordingly, a conviction for aggravated criminal sexual assault or abuse, where the defendant denies the charge, will be upheld when the testimony of the complainant is clear and convincing, or it is corroborated by other evidence. People v. Cregar (1988), 172 Ill. App. 3d 807, 819, 526 N.E.2d 1376, 1385; People v. Server (1986) , 148 Ill. App. 3d 888, 894, 499 N.E.2d 1019, 1024, cert. denied (1987) , 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.

Defendant maintains that K.H.’s testimony should be given little regard. He notes she admits to drug and alcohol use. He believes this greatly diminishes her credibility. He also points out that statements K.H. made in the recorded telephone call, such as the fact that defendant had a gun and that she was confined for 18 hours, were clearly incorrect and indicate she was acting under a delusion. However, a complainant’s testimony need not be unimpeached, uncontradicted, crystal clear, or perfect to be clear and convincing. (People v. Findlay (1988), 177 Ill. App. 3d 903, 911, 532 N.E.2d 1035, 1041; People v. Henne (1988), 165 Ill. App. 3d 315, 323, 518 N.E.2d 1276, 1281.) It is clear and convincing where it is consistent and where discrepancies do not detract from its reasonableness. (People v. Escobedo (1986), 151 Ill. App. 3d 69, 81-82, 502 N.E.2d 1263, 1271.) Any weakness in the testimony, such as the inability to remember exact dates and times, as well as other minor contradictions or inconsistencies, only affect the weight to be given the testimony and do not themselves create a reasonable doubt. (People v. Sexton (1987), 162 Ill. App. 3d 607, 612, 515 N.E.2d 1359, 1363.) As long as the discrepancies do not detract from the reasonableness of the complainant’s story as a whole, it may be found clear and convincing. Findlay, 177 Ill. App. 3d at 911, 532 N.E.2d at 1041.

We find K.H.’s testimony clear and convincing. The testimony concerning her drug use was that the effects would have worn off long before the incident. Also, the testimony established that, while she was feeling the effects of the alcohol, she was not so drunk as to not be aware of what was happening. Her testimony and explanation of the evening was reasonable and consistent.

This is in marked contrast to that of defendant. Defendant asserts the sexual relationship was consensual. He testified they both became involved in the car, but K.H. stopped him short of completing the act while they were in the car. This occurred prior to 3 a.m. Yet, it was defendant’s testimony that they did not have sexual relations in the apartment until after 7:30 a.m. This does not sound like a couple anxious to have a physical relationship. He also stated he grabbed K.H. from behind, carrying her back to the apartment, and did not hear her scream for help. Yet, the testimony of the independent witnesses and the marks on K.H.’s throat establish otherwise. In view of these discrepancies, defendant’s assertion that the relationship was consensual rings hollow.

Further, even if K.H.’s testimony was not convincing, the evidence, which is set out in great detail, clearly corroborates the testimony and resolves any doubt. The extent of K.H.’s injuries supports her testimony. She had marks around her throat, which looked like fingers, and she had trouble talking or swallowing for several days afterwards. She also had bruises on her arms and a swollen wrist. Defendant gave no explanation for these injuries. The testimony of the ladies at the apartment complex also supports the conviction. They heard noises at 3 a.m. and again at 7:30 a.m. One saw defendant chase K.H. down from behind while she was screaming for help. She saw him grab K.H. by the throat and drag her off. Also, the testimony of the police established that K.H. was disheveled, crying, and in shock when they spoke to her. In fact, she became physically ill twice when talking about the incident. Even the transcript of the initial telephone call to the police established she was frightened and hysterical. K.H.’s testimony concerning the disabling effects on her life, such as the loss of weight, lack of sleep, marital problems, and cleaning obsessions, supports the conclusion that a traumatic event occurred. Additionally, K.H. stated defendant told her he had AIDS, which was corroborated by nurse McCain’s testimony. This is not the sort of comment one would expect in a consensual relationship. The evidence is overwhelming without even considering the rape trauma syndrome evidence, which further supports the conviction.

Defendant next maintains the State failed to prove he acted in such a manner as to threaten or endanger the life of the victim. This is the aggravating factor which elevates the offense of criminal sexual assault to aggravated criminal sexual assault of which defendant was convicted. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14.) Defendant’s threats to kill K.H. and throw her body in the river, plus the injuries, including the marks to her throat, are sufficient to establish defendant acted in such a manner as to threaten or endanger K.H.’s life.

Defendant next maintains the court erred by allowing expert testimony. Susan Carr was qualified as an expert witness and was allowed to testify concerning the rape trauma syndrome (RTS) and whether K.H. exhibited symptoms consistent with RTS. She was also allowed to sit in the courtroom during K.H.’s testimony and allowed to testify whether K.H.’s manner on the stand was consistent with someone suffering from RTS. Defendant believes this was error. Defendant’s argument is three-pronged. He argues (1) Carr should not have been qualified as an expert witness; (2) Carr should not have been allowed to observe K.H.’s courtroom demeanor and testify to it; and (3) the testimony concerning RTS should not have been introduced.

In qualifying Carr as an expert and allowing the testimony concerning RTS, the court relied on People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert denied, (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131, where this court allowed expert testimony concerning RTS on rebuttal in a case involving child abuse. Defendant asserts Server should be limited to its facts and the present case is distinguishable.

Defendant’s initial contention is that Carr does not have a formal psychology degree and, thus, should be barred from being considered an expert on the psychological condition known as RTS. He notes, in Server, the expert was a clinical psychologist who had been involved in counseling in the field of sexual abuse and assault since 1975.

An individual will be allowed to testify as an expert if his experience and qualifications afford him knowledge which is not common to laypersons, and where such testimony will aid the trier of fact in reaching its conclusion. (People v. Jordan (1984), 103 Ill. 2d 192, 208, 469 N.E.2d 569, 576.) A party who tenders an expert to the court has the burden of establishing the qualifications of the expert. (Server, 148 Ill. App. 3d at 899, 499 N.E.2d at 1026-27.) This determination is directed to the sound discretion of the trial court and will be disturbed only when it constitutes an abuse of that discretion. People v. Bradley (1988), 172 Ill. App. 3d 545, 550, 526 N.E.2d 916, 920.

The indicia of expertise is not a given level of academic qualifications, but whether the expert has knowledge and experience beyond the average citizen, which would assist the jury in evaluating the evidence. (Bradley, 172 Ill. App. 3d at 550, 526 N.E.2d at 920.) Irrespective of how specialized knowledge was acquired, whether through education, training, experience, or a combination of each, if the witness possesses such knowledge, he may testify. (People v. Lang (1982), 106 Ill. App. 3d 808, 813, 436 N.E.2d 260, 265.) Specialized formal training is not necessary, and experience alone may qualify one as an expert. People v. Jackson (1986), 145 Ill. App. 3d 626, 633, 495 N.E.2d 1207, 1214; Lang, 106 Ill. App. 3d at 813, 436 N.E.2d at 265.

On voir dire, Carr testified that she is the executive director and clinical director at the Rape Information and Counseling Service in Springfield, which provides crisis intervention counseling but does not perform long-term counseling. She has been thusly employed for three years. Prior to that, she ran a program for chronically mentally ill people at the Mental Health Center in Lincoln. Her formal education includes a degree in liberal arts. She took numerous psychology courses in college. She also took 40 hours of graduate training, including courses in pastoral and family counseling. She has received 120 hours training in rape trauma and counseling in crisis intervention. She has received training on RTS, including some continuing education units from the University of Kentucky.

She explained RTS was first identified in 1974 and formally accepted in 1980. Since it is so new, there is little formalized training at the universities about it. She has counseled over 200 people. She is also a guest lecturer at the graduate program of Sangamon State University and has trained the psychologist at the Mental Health Center in Springfield in identifying RTS.

On cross-examination, she explained RTS was accepted by the American Psychological Association in 1980. She testified it is now contained in the third edition of the Diagnostic and Statistical Manual (DSM III) as a subcategory of the post-traumatic stress disorder. The court determined Carr qualified as an expert witness concerning RTS and related stress.

Similarly, in Server, the expert testified that this field of study is new, and there are no degree courses of study in it. Accordingly, she observed that most education in this area is received from clinical interviews and observations. This court, finding no abuse of discretion in the trial court qualifying her as an expert, further noted the areas of inquiry were limited to the expert’s area of knowledge.

In the present case, we find Carr’s lack of a psychology degree as not determinative. It is clear this is a new, recognized field of study to which there is no academic course of study. It is also apparent Carr has taken great pains to receive what education is available. She has had years of hands-on experience and is recognized by others in Springfield as extremely knowledgeable in her field. She has a knowledge and experience beyond the average citizen, which would assist the jury in evaluating the evidence. We find the trial court did not abuse its discretion in qualifying her as an expert.

Defendant argues that, even if Carr is an expert, she should not have been allowed to observe K.H. testify and then testify that some of K.H.’s conduct on the stand was consistent with someone suffering from RTS. Defendant believes this is erroneous because it allows Carr to comment on the credibility of K.H. and invades the province of the jury.

In Server, the experts were allowed to observe the victim’s testimony before testifying as to whether the victim’s conduct was inconsistent with a person suffering from RTS. This court found no error with this procedure. Server, 148 Ill. App. 3d at 899, 499 N.E.2d at 1027.

Similarly, we find no error here. It is within the discretion of the trial court to permit a psychiatrist or psychologist to remain in the courtroom to observe a defendant charged with a crime testify, and to use the observations as a basis for his opinion as to the sanity of that defendant. (See People v. Cunningham (1966), 73 Ill. App. 2d 357, 218 N.E.2d 827.) We have no difficulty, under the facts of this case, with extending this holding to an expert witness. Further, defendant’s concern that Carr was improperly commenting on K.H.’s credibility is misplaced. She, at no time, spoke concerning the veracity of K.H.’s testimony. She simply noted certain conduct which was consistent with a person suffering from RTS.

Defendant next contends that Carr’s testimony concerning the syndrome was improperly admitted. In Server, the court allowed testimony of this nature on rebuttal for the limited purpose of explaining to the jury how child victims of sexual assault react. (Server, 148 Ill. App. 3d at 899, 499 N.E.2d at 1026.) Defendant believes this holding should be limited to cases involving child victims and, accordingly, should not be applied to his case. He also believes Carr was improperly allowed to testify that K.H. was actually suffering from RTS, rather than limit her testimony to whether K.H.’s conduct was consistent with one suffering from that syndrome.

Initially, we observe the legislature has cleared the path for admission of this testimony in future cases. Section 115 — 7.2 of the Code of Criminal Procedure of 1963 has been amended, effective January 1, 1989, to provide that in a case involving perpetration of an illegal sexual act, as defined, testimony by an expert, qualified by the court, relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible. (Pub. Act 85 — 1279, eff. Jan. 1, 1989; 1988 Ill. Legis. Serv. 2280 (West).) However, this does not answer whether the evidence was properly admitted in this case.

We are aware courts throughout the land are divided on this question. Some, for various reasons, have found it inadmissible. (See State v. Black (1987), 109 Wash. 2d 336, 745 P.2d 12; State v. Bowman (N.M. App. 1986), 104 N.M. 19, 715 P.2d 467; 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.) However, an increasing number of courts are allowing admission of this testimony. See State v. McCoy (W. Va. 1988), 366 S.E.2d 731; People v. Hampton (Colo. 1987), 746 P.2d 947; State v. Allewalt (1986), 308 Md. 89, 517 A.2d 741; State v. Huey (1985), 145 Ariz. 59, 699 P.2d 1290; State v. McQuillen (1984), 236 Kan. 161, 689 P.2d 822; State v. Liddell (Mont. 1984), 685 P.2d 918; State v. Marks (1982), 231 Kan. 645, 647 P.2d 1292.

In Illinois, expert testimony will be admitted if the expert has some knowledge or experience, not common to the world, which will aid the court or jury in arriving at a determination on the question or issue. (People v. Free (1983), 94 Ill. 2d 378, 411, 447 N.E.2d 218, 234; Server, 148 Ill. App. 3d at 897, 499 N.E.2d at 1026.) It is admitted to aid the jury, and the credibility of the expert and the weight to be accorded his testimony is a matter for the trier of fact to determine. Server, 148 Ill. App. 3d at 897, 499 N.E.2d at 1026; People v. Platter (1980), 89 Ill. App. 3d 803, 819, 412 N.E.2d 181, 191.

It is evident knowledge of the rape trauma syndrome and the conduct its sufferers exhibit is beyond that common to the layperson. Accordingly, the testimony concerning this syndrome and whether K.H.’s conduct is consistent with that of someone suffering from it would be helpful to the fact finder on the question of consent. We find no error with its admission.

Defendant argues that, even if it is found admissible in principle, in this case, there is error because Carr testified K.H. was suffering from RTS which improperly encroaches on the jury’s duty of determining credibility by bolstering K.H.’s testimony. The trial court properly attempted to limit the testimony of Carr to the question of whether the conduct was consistent with RTS. In fact, the court, on its own, would at times restrict the State’s questioning to avoid this problem. Nevertheless, our review establishes that, during Carr’s extensive direct testimony, there were two instances when she referred to what stage of RTS K.H. was suffering from at a given time.

However, we need not determine if this is reversible error since we find the allegation waived. At neither instance did defendant object. (See People v. Stewart (1984), 105 Ill. 2d 22, 56, 473 N.E.2d 840, 857; People v. Davidson (1987), 160 Ill. App. 3d 99, 119, 514 N.E.2d 17, 31, appeal dismissed (1988), 487 U.S. 1212, 101 L. Ed. 2d 897, 108 S. Ct. 2860.) Nor did he include this allegation in his post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30, cert. denied (1988),_U.S___ 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Jarnagan (1987), 154 Ill. App. 3d 187, 192, 506 N.E.2d 715, 719.) These omissions alone waive any allegation of error. Further, defendant elicited the same testimony in much greater detail. This occurred even after the court, during cross-examination, explained to defendant that “the Court has not suggested that [Carr] can give an opinion as to whether or not [K.H.] was in fact in post-rape syndrome, only that indices that were there were consistent.” Where a defendant does not object to testimony and elicits the same testimony on cross-examination, any error in the testimony is waived. Jarnagan, 154 Ill. App. 3d at 192, 506 N.E.2d at 719.

Defendant next contends the court erred by allowing admission of the tape recording of K.H.’s initial telephone call to the police. He maintains this is improper hearsay, and its admission prejudiced him, requiring a new trial.

Initially, we note that defendant did not raise this objection at trial. His sole objection then was to the quality of the tape. It is settled that objections at trial on specific grounds waive all other grounds of objections. (People v. Barrios (1986), 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419; People v. Jones (1975), 60 Ill. 2d 300, 307, 325 N.E.2d 601, 604.) Further, defendant included no reference to admission of the tape recording in his post-trial motion, which also acts as a waiver. See Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1129-30; Jarnagan, 154 Ill. App. 3d at 192, 506 N.E.2d at 719.

Moreover, if the merits of the complaint are addressed, it is clear the tape was properly introduced as a spontaneous declaration. To qualify as such and be admissible regardless of a declarant’s presence at trial, three elements must exist: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Robinson (1978), 73 Ill. 2d 192, 199, 383 N.E.2d 164, 168; People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, 807.) “The pertinent point is whether there was a lack of sufficient time to allow an opportunity for reflection and invention.” Poland, 22 Ill. 2d at 181, 174 N.E.2d at 807.

In the present case, K.H. telephoned the police immediately after locking defendant out of the apartment, having been held prisoner and assaulted in excess of five hours. It is evident from the tape that she was near hysteria. Also, the testimony of the officers who saw her shortly thereafter established that she was shaking, crying, and hysterical. This short time frame and the highly emotional state of K.H. qualifies the tape as a spontaneous declaration. See People v. Quinlan (1980), 85 Ill. App. 3d 1079, 1084, 407 N.E.2d 935, 939-40; People v. Hayn (1976), 34 Ill. App. 3d 1029, 1035, 341 N.E.2d 182, 187.

Defendant next complains the court erred by allowing Nurse McCain to testify to K.H.’s statements to her concerning the assaults, which McCain recorded in the hospital report. Defendant insists this evidence is hearsay and prejudiced his case.

We need not address the merits of his position. Defendant did not object to this testimony at trial. Rather, he cross-examined McCain in detail concerning the report, and attempted to introduce the entire report into evidence. In fact, the only mention of this report in defendant’s post-trial motion was the assertion that the court erred by refusing its admission.

. Failure to object at trial waives any issue on appeal. (Stewart, 105 Ill. 2d at 56, 473 N.E.2d at 857; Davidson, 160 Ill. App. 3d at 119, 514 N.E.2d at 31.) This is true also of the failure to include it in the post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1129-30.) Further, where a defendant fails to object to testimony and elicits the same or similar testimony in cross-examination, any error in the testimony is deemed waived. (Jarnagan, 154 Ill. App. 3d at 192, 506 N.E.2d at 719.) Since, due to the overwhelming evidence, the plain error exception does not apply, this question is waived.

Defendant next contends he was denied a fair trial by the testimony of McCain, Carr, and Williams that K.H. reported she had been sexually assaulted. He notes that evidence that K.H. complained of being assaulted was contained in the tape of the initial telephone call. Therefore, he asserts the hearsay statements of the others served no purpose as corroborative statements, and their cumulative effect prejudiced his case.

We find no error. We have reviewed the testimony of Carr and Williams and can find no reference to K.H. telling them she had been sexually assaulted. While, due to the nature of her testimony, Carr’s testimony alluded to the “incident,” she did not relate what K.H. told her about it until cross-examination. Williams simply stated she responded to a rape call, and she told the nurse K.H. was a possible rape victim. There is no indication where Williams received this information. McCain did relate K.H. told her she had been sexually assaulted. However, defendant did not object at the time, cross-examined her on this information, and failed to include any reference to it in his post-trial motion which, as noted earlier, results in the issue being waived.

Defendant next insists the court considered an improper factor in sentencing him. On June 8, 1988, a sentencing hearing was conducted. After hearing arguments, the court reviewed the relevant mitigating and aggravating factors and stated:

“As to each count of the crime of aggravated criminal sexual assault, the Court hereby sentences you to a determinate term in the Department of Corrections for the determinate period of 15 years. As to the charge of unlawful restraint, a Class IV Felony, the Court sentences you to the determinate term of three years.
All the sentences are to run concurrently. That means at the same time, Mr. Douglas.
Now, I do not like to sentence anybody to the Department of Corrections. And I say that to every person that I send there, because I want you to understand when you leave here today that I do not take lightly what my responsibility is in sentencing you or anyone else to the Department of Corrections.
That is no place anyone should want to go. And it is certainly no place that I take pleasure in sending anyone. But you left the Court no alternative so far as I am concerned. You have shown in your past conduct that you are not willing to comply with the laws with regard to this area. And I think that is an appropriate sentence.
You know, and your attorney knows, that you won’t do 15 years anyway. You will do half of that. So it’s not as long as it may sound. But you have to be sentenced, and you have to be sentenced severely for your conduct.
You have earned this trip to the Department of Corrections. And my sympathy goes to [K.H.] and to your family. My sympathy does not go to you.”

Defendant argues this reference to the good-time credit was consideration of an improper sentencing factor. However, we do not read the court’s comments as indicating it considered the good time as a sentencing factor. Prior to the questioned language, the court had reviewed what it found to be aggravating factors. These included the impact on the victim and the fact the evidence against defendant was overwhelming. The court also observed defendant had several prior convictions, but the court found most important his conviction for criminal sexual abuse for which defendant was placed on probation and served 120 days in jail. These were the factors relied on in imposing sentence. The remaining comments were merely an explanation to defendant of the practical ramifications of the court’s decision.

Finally, defendant asserts the criminal sexual assault statute is unconstitutional for two reasons, the first being that the statute is overbroad. The statute defines sexual penetration as: .

“[A]ny contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to eunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).)

Defendant notes a sexual penetration can occur without evidence that it was done for the purpose of sexual gratification or arousal of the victim or the accused, which is part of the definition of sexual conduct. (See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e).) He maintains that the failure to so limit the definition of sexual penetration makes the statute overbroad since a parent bathing a child could inadvertently penetrate the child and commit the offense of criminal sexual assault.

Defendant raises this argument for the first time on appeal. Generally, questions of the constitutionality of a statute cannot be raised for the first time on appeal, and defendant has, thus, waived this issue. (Cregar, 172 Ill. App. 3d at 826, 526 N.E.2d at 1389; People v. Whitfield (1986), 147 Ill. App. 3d 675, 680, 498 N.E.2d 262, 266.) On the merits, it is evident that defendant misapprehends the statute. The offense of criminal sexual assault requires that the use or threat of use of force accompany the sexual penetration. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13.) In People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45, our supreme court, in denying slightly different constitutional challenges to this statute, observed that the statute was designed to proscribe those acts of sexual penetration accomplished by the use of force. Thus, it is apparent defendant’s hypothetical situation would not come under purview of the statute, and that the statute is not overbroad.

Defendant’s second constitutional argument is not only waived for failure to raise it at trial but has been previously addressed and dismissed by this and other courts. See People v. Bartay (1986), 150 Ill. App. 3d 130, 132, 501 N.E.2d 364, 365-66; People v. Burmeister (1986), 147 Ill. App. 3d 218, 223-24, 497 N.E.2d 1212, 1215-16.

For the above-stated reasons, the convictions of defendant and the sentences imposed by the circuit court of Adams County are affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH

license: Public Domain

text:
    WILLIAM F. MILLER, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff-Appellee (The Village of Forrest, Defendant-Appellee).
    Fourth District
    No. 4—88—0805
    Opinion filed May 11, 1989.

      Gordon M. Kinate, of Kinate & Morgan, of Fairbury, and Wayne O. Smith, of Dilks, Rodeen & Gibson, Ltd., of Paxton, for appellant.
    Robert P. Follmer, of Pontiac, for appellee Norfolk & Western Railway Company.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an interlocutory appeal by plaintiff William E Miller, pursuant to Supreme Court Rule 308. (107 Ill. 2d R. 308.) The issues certified on appeal are: (1) whether the Village of Forrest (Village), a municipal corporation, may waive any conflicts of interest in this case; and (2) whether counsel for the plaintiff, Kinate & Morgan, are disqualified from representing the plaintiff despite a knowing waiver of any conflict of interest by plaintiff and the Village as third-party defendant. The trial court disqualified plaintiff’s counsel because of their prior representation of the Village in a suit against Norfolk which involved issues similar to those presented in this case. Plaintiff contends the trial court erred in disqualifying his counsel where valid waivers were executed by all interested parties pursuant to Rule 5— 105(c) of the Illinois Code of Professional Responsibility (the Code) (107 Ill. 2d R. 5 — 105(c)). We agree and reverse.

Plaintiff William F. Miller filed an action on July 3, 1985, against Norfolk & Western Railway Company (Norfolk) seeking money damages for the damage to his property which resulted from flooding in the Village on March 28, 1985. On August 30, 1985, Norfolk answered plaintiff’s complaint and denied liability. On November 15, 1985, Norfolk filed a third-party complaint for contribution against the Village, alleging structures maintained by the Village caused plaintiff’s damages. An appearance for the Village was filed on December 18, 1985, by a law firm in Bloomington. Kinate & Morgan have not and do not represent the Village in this proceeding.

Prior to the filing of the instant action, Kinate & Morgan represented the Village in a suit filed in 1984 against Norfolk (1984 suit). The 1984 suit involved the same structure owned by Norfolk and alleged in this action to have caused plaintiff’s damages. The trial court found for the Village in the 1984 suit and that order was affirmed on appeal to this court. Village of Forrest v. Norfolk & Western Ry. Co. (1986), 146 Ill. App. 3d 20, 496 N.E.2d 257.

In the instant case, on March 3, 1988, the Village filed a motion to dismiss the third-party complaint. The Village alleged the 1984 suit was res judicata to all issues raised in the third-party complaint. On December 29, 1986, the trial court dismissed Norfolk’s complaint with prejudice; that order was reversed on appeal to this court. (Miller v. Norfolk & Western R.R. (1987), 157 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).) This court found that res judicata was no bar to Norfolk’s third-party complaint for contribution in the instant action.

At a pretrial hearing on October 1, 1987, the court sua sponte raised the issue of conflict of interest for Kinate & Morgan to represent plaintiff in this case while the firm currently represents the Village as the village attorney. The docket sheet in the record indicates that Norfolk’s attorney then stated he would file a motion requesting removal of Kinate & Morgan.

On April 20, 1988, another pretrial hearing was held. The court heard the arguments of counsel and considered a letter addressed to the trial judge from attorney Gerald Rodeen, independent counsel engaged by the plaintiff to advise the plaintiff on the conflict of interest issue. In his letter, attorney Rodeen reported that after being fully advised of any potential conflicts, plaintiff waived any conflict as did the Village. Counsel for the Village also advised the court that the Village and its insurance carrier waived any conflict of interest.

The court found that the Village could not, on behalf of the public, waive any conflict of interest in the case. The court’s order indicates that Kinate & Morgan recognized a potential conflict of interest in the case. The court further found that representation of plaintiff by Kinate & Morgan violated Canons 4, 5, and 9 of the Code. (107 Ill. 2d Canon 4, Canon 5, Canon 9.) This order was later amended to include the necessary language for an interlocutory appeal under Rule 308. 107 Ill. 2d R. 308.

Plaintiff contends that whether or not there is any conflict of interest in this case, he and the Village have waived any conflict and, therefore, the disqualification order should be reversed. While plaintiff does not admit to any actual conflict of interest in the case, plaintiff argues that the waivers operate to negate any conflict which may be present. Plaintiff also states that the trial court’s finding that the Village could not waive any conflict is not supported by the case law.

Plaintiff maintains that he has an important interest in having the attorneys he chose represent him in this matter. Further, plaintiff argues prejudice because this case is not in the beginning stages but is nearly ready for trial after two years of preparation by Kinate & Morgan. Plaintiff contends that Norfolk has no standing to object to the representation of plaintiff by Kinate & Morgan and its third-party suit against the Village is Norfolk’s attempt to “direct the theory” of plaintiff’s case. Plaintiff asserts that he does not intend to claim the Village is liable for the flooding.

Norfolk argues that the Village cannot, as a public entity, waive any conflicts of interest and cites to In re LaPinska (1978), 72 Ill. 2d 461, 381 N.E.2d 700, as authority. Norfolk also urges the conflict in this case between plaintiff and the Village is obvious, given that the 1984 suit involved the same issues. Now, according to Norfolk, plaintiff and the Village are adverse to each other, and because the Village is a former (and present in other matters) client of Kinate & Morgan, the firm is obligated to preserve Village confidences under Canon 4. Moreover, Norfolk urges there is an appearance of impropriety in this case and, therefore, the disqualification order should be affirmed.

Canons 4, 5, and 9 of the Code are implicated in matters involving conflicts of interest. Canon 4 provides:

“A lawyer should preserve the confidences and secrets of a client.” (107 Ill. 2d Canon 4.)

Canon 5 provides:

“A lawyer should exercise independent professional judgment on behalf of a client.” (107 Ill. 2d Canon 5.)

Canon 9 provides:

“A lawyer should avoid even the appearance of professional impropriety.” (107 Ill. 2d Canon 9.)

Where a lawyer represents two clients whose interests are or may be adverse to each other, the lawyer’s duties under Canons 4 and 5 necessarily conflict. However, Rule 5 — 105(c) of the Code (107 Ill. 2d R. 5 — 105(c)) allows such multiple representation but within strict guidelines. Rules 5 — 105(b) and 5 — 105(c) spell out a lawyer’s obligations:

“(b) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under Rule 5 — 105(c).
(c) In the situations covered by Rules 5 — 105(a) and (b), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible affect of such representation on the exercise of his independent professional judgment on behalf of each.” 107 Ill. 2d Rules 5— 105(b), (c).

Rule 5 — 105(c) establishes a two-prong test to be applied in determining whether a lawyer may represent multiple clients. He may only if “it is obvious that he can adequately represent the interests of each and each consents to the representation after full disclosure.”

We first address the issue of whether conflicts of interest can be waived under Rule 5 — 105(c) by a public entity on behalf of the public. The Illinois Supreme Court in In re LaPinska (1978), 72 Ill. 2d 461, 381 N.E.2d 700, held that a city attorney may not represent both a governmental body and a private client, even if full disclosure is made and the parties consent to such dual representation. The LaPinsJca court relied upon a decision of the New Jersey Supreme Court, In re A. & B. (1965), 44 N.J. 331, 209 A.2d 101, where a city attorney sought to represent the interests of land developers with projects scheduled to be brought before city officials. The court in A. & B. held such dual representation was improper.

Norfolk urges this court that LaPinsJca controls this issue and we must, therefore, find the Village’s waiver is ineffective and affirm the trial court. We disagree and find LaPinsJca distinguishable from the case presented here. Moreover, we hold there is no per se rule prohibiting a public entity from waiving conflicts of interest under Rule 5— 105(c).

Unlike LaPinska and the New Jersey case it relied upon, plaintiff’s attorneys in the case before us are not employed as city attorneys and, therefore, are not public officials within the village’s governmental structure. They are privately retained to represent the Village on various legal matters. Unlike the LaPinska case, Kinate & Morgan’s influence or relationship with the Village officials is not being sought or used by the plaintiff for his own private benefit.

In our view, the obvious impropriety intended to be avoided where the public interest is involved is that present in those cases where city officials are acting as private counsel for persons with business before the city. We believe such circumstances would require the disqualification of a city official and no waiver could cure even the most tenuous conflict of interest. Such a situation is not present in this case.

We find further support for our conclusion in A. & B. There, the New Jersey Supreme Court stated:

“We do not suggest *** that an attorney for a municipality may not represent individuals or interests located therein merely because it may come to pass that a private client will have some transaction with the municipality.
Nonetheless the subject of land development is one in which the likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence." (Emphasis added.) A. & B., 44 N.J. at 334, 209 A.2d at 103.

We note also that the Committee on Professional Responsibility (Committee) of the Illinois State Bar Association (ISBA) has recently considered this issue, and we agree with the Committee’s reasoning as expressed in ISBA opinion 86 — 4. There, a law firm whose members frequently acted as special assistant State’s Attorneys in juvenile matters sought advice on whether the firm could act as criminal defense counsel in nonjuvenile cases within the same county after obtaining the consent of all parties. After considering LaPinska, the Committee concluded that a per se rule against allowing a consent by a public entity was not compelled by the relevant case law nor required to achieve the purposes of the Code. The Committee relied in part on an earlier decision of the supreme court in People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345.

In Fife, the defendant’s trial counsel was employed as special assistant attorney general in workers’ compensation cases. The defendant was not informed of this position of his counsel until after he was convicted and sentenced on the offense charged, and thus, he did not execute a waiver. The court held that defendant did not receive effective assistance of counsel because of the conflict and the fact that he was not informed of the conflict and did not effect a knowing and intelligent waiver. The court also stated:

“We are concerned about the possible, perhaps subliminal pressure a defense counsel who is also a special assistant for workmen’s compensation cases might receive from the Attorney General’s office, but we believe that problem is nullified or significantly lessened by complete and effective disclosure, [and] by effective, knowledgeable waiver ***.” Fife, 76 Ill. 2d at 424-25, 392 N.E.2d at 1348.

As to the first issue, we conclude that the Village could properly execute a waiver pursuant to Rule 5 — 105(c).

We next address whether, despite valid waivers of any conflicts of interest found in this case, plaintiff’s counsel are disqualified from representing the plaintiff. Under Rule 5 — 105(c), a waiver will not prevent disqualification of counsel if it remains uncertain whether the attorney can adequately represent the interests of both clients. Similarly, under Canon 9, if dual representation with knowing waivers results in the appearance of impropriety, the attorney will be disqualified.

Norfolk argues the appearance of impropriety in this case is obvious and therefore required the disqualification of plaintiff’s counsel. Plaintiff contends Norfolk’s third-party action in this case is its attempt to direct the theory of plaintiff’s case. Neither Norfolk nor plaintiff provides us with authority for their arguments.

The courts have recognized that motions for disqualification of counsel are often used as a tactical weapon in litigation for purposes of harassment and, therefore, such motions have been viewed with caution. (Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715, 721-22; Hannan v. Watt (1986), 147 Ill. App. 3d 456, 461, 497 N.E.2d 1307, 1311.) In a recent case, Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 505 N.E.2d 694, the court stated that where counsel for the plaintiff and third-party defendant received the consent of both parties to dual representation, counsel satisfied his duty under Rule 5 — 105(c) and disqualification was not required.

In the case presented, we find the disqualification of plaintiff’s counsel was in error. Initially, we note there was no finding of an actual conflict in this case. In its brief, Norfolk posits various conflicts which may arise. In Clay v. Doherty (N.D. Ill. 1985), 608 F. Supp. 295, the district court stated:

“Vague and general inconsistencies of position giving rise to hypothetical conflicts in the mind of an opposing party will not justify so drastic a measure as disqualification.” (Clay, 608 F. Supp. at 303.)

Second, the Village and the plaintiff were advised by outside counsel on the potential conflicts of interest in this case before the waivers were executed. The trial court found the waivers were knowingly entered. No issue on this finding is before this court. Third, plaintiff and the Village, represented by separate counsel in this action, are now potential adversaries only because of Norfolk’s third-party action. Under the circumstances, we conclude the interests of both plaintiff and the Village are adequately protected and, therefore, the disqualification of Kinate & Morgan is reversed.

Plaintiff and Norfolk argue additional issues not certified in this appeal and therefore, we do not address these issues. Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409.

For the foregoing reasons, we reverse the order of the trial court disqualifying plaintiff’s counsel.

Reversed.

KNECHT and SPITZ, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD D. TOWNSEND, Defendant-Appellant.
    Fourth District
    No. 4—88—0649
    Opinion filed May 11, 1989.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State's Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On March 17, 1988, a plenary order of protection was entered, pursuant to sections 201 through 227 of the Illinois Domestic Violence Act of 1986 (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 2312 — 1 through 2312 — 27), by the circuit court of Champaign County, ordering defendant Edward D. Townsend to refrain from physically abusing, intimidating, wilfully depriving, threatening, harassing, or interfering with the personal liberty of L.B., or any other family or household member. This order also prohibited defendant from entering a residence at 1114 Lierman in Urbana, Illinois. The order provided for an expiration date of March 17, 1990. On August 9, 1988, a petition for rule to show cause was filed, asking defendant to show cause why he should not be held in contempt for violating both of the provisions of the March 17, 1988, order. On August 15, 1988, after an evidentiary hearing, the trial court found defendant had violated the conditions of the order of protection and, subsequently, sentenced defendant for indirect criminal contempt to the Champaign County Corrections Center for a period of 50 days. Defendant appeals contending that the State failed to prove beyond a reasonable doubt that he acted wilfully when he violated an order of protection, which he believed had been “lifted.”

The evidence is clear that defendant entered the residence at 1114 Lierman on August 1, 1988, and during the visit, struck L.B. on the face at least one time. Defendant contends he was told by L.B. that she had arranged for the March 17, 1988, order to be lifted. He contends that he could not have wilfully violated something he thought no longer existed.

Indirect criminal contempt involves conduct that does not occur in the presence of the trial court and, therefore, is not within the personal observation and knowledge of the judge. (People v. Minor (1987), 162 Ill. App. 3d 140, 146, 514 N.E.2d 1042, 1046; Allen v. Duffie (1984), 127 Ill. App. 3d 820, 822, 469 N.E.2d 702, 704.) Criminal contempt is a crime and, as such, a defendant’s wilful violation of a court order must be proved beyond a reasonable doubt. (Minor, 162 Ill. App. 3d at 146-47, 514 N.E.2d at 1046.) Whether a defendant has been proved guilty of such conduct is a question of fact to be determined in this case by the trial court, and its decision will not be disturbed if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

L.B. did testify that she told defendant she was “coming down [to the courthouse] to try to get the order of protection lifted.” She also testified, as follows:

“No, I did not tell him it was all right to come by. I told him that I had been trying to get that order of protection lifted, so he and I could be together, because we do love each other, and we want to get together, but it’s my mother that stands in the way.”

The Act recognizes that domestic violence is a serious crime against the individual and society. (Ill. Rev. Stat. 1987, ch. 40, par. 2311 — 2(1).) It seeks to expand protection to victims, with those protections including physical separation. (Ill. Rev. Stat. 1987, ch. 40, par. 2311 — 2(5).) Orders of protection are orders of the court, not orders of the victims. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 7.) We agree indirect criminal contempt for violations of these orders necessitates proof beyond a reasonable doubt of a wilful violation, but we do not agree that a victim’s invitation to violate the court’s order frees those contemnors from conviction for wilful misconduct. A contrary result would lead to mockery of the powers granted the courts under the Act.

In the present case, no evidence indicated that defendant had received information from court officials regarding a “lifting” of the court order. Defendant violated the order by both entering the property at 1114 Lierman and by physically abusing L.B. The evidence indicated that when defendant became aware of police intervention, he stayed upstairs in the apartment, coming down only after being called by the arresting officer. This evidence, taken together with the testimony of L.B. and the absence of any official information relating to the termination of the court order, leads us to the conclusion that the court’s finding that a wilful violation was established beyond a reasonable doubt was justified.

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.


text:
    STANDARD MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. ROY W. PETREIKIS et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0683
    Opinion filed May 17, 1989.

      Cifelli, Baczynski & Scrementi, Ltd., of Chicago Heights (Anthony C. Scrementi, Robert F. Chudada, and Luciano Panici, of counsel), for appellants.
    Kepner & Kepner, of Springfield (Maurice W. Kepner, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

After an evidentiary hearing, a declaratory judgment order was entered by the circuit court of Sangamon County, holding defendants Roy W. Petreikis and Mary Frances Petreikis were not entitled to the benefits or payments under the uninsured motorist coverage of Roy Petreikis’ automobile insurance policy with plaintiff Standard Mutual Insurance Company, a corporation. Defendants appeal.

On May 24, 1985, Mary Frances Petreikis, the 16-year-old daughter of Roy W. Petreikis, was hit by an automobile driven by Albert M. Olson and critically injured. As a result of the accident, Mary Frances has suffered permanent injuries, resulting in medical expenses far exceeding $100,000. Olson’s automobile insurance coverage provided a liability limit of $15,000 per person. Petreikis’ automobile insurance policy provided for uninsured coverage up to $100,000, and the coverage would normally extend to the injuries received by Mary Frances. Basically, the trial court held that defendants could not collect under the uninsured provisions because they released claims against Olson upon the payment of the $15,000 limits of his automobile insurance policy without affording plaintiff the right to subrogate its claims against Olson for any payment it might make to defendants.

Section 143a — 2 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2) provides for “Additional uninsured motorist coverage — Underinsured motorist coverage,” and effective January 1, 1985 (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(7)), and all times since, section 143a — 2(7) has provided:

“Subrogation against underinsured motorists. No insurer shall exercise any right of subrogation under a policy providing additional uninsured motorist coverage against an underinsured motorist where the insurer has been provided with written notice in advance of a settlement between its insured and the underinsured motorist and the insurer fails to advance a payment to the insured, in an amount equal to the tentative settlement, within 30 days following receipt of such notice.” Ill. Rev. Stat. 1987, ch. 73, par. 755a-2(7).

Defendants contend, on appeal, that the trial court erred (1) in finding that section 143a — 2(7) applied where the insurer expressly waived its subrogation rights, (2) in failing to find that the insurer was estopped from asserting its subrogation rights, (3) in finding that section 143a — 2(7) controlled where a conflict existed between the procedure set forth in the statute and the procedure set forth in the insurance contract, and (4) in finding that the insureds did not comply with section 143a — 2(7).

The evidence in the present action consists of the examination of Fred C. Ray, an employee of Standard Mutual Insurance Company, and 19 exhibits. Ray basically identified and explained the exhibits but also related to the timing of insurance policy endorsement changes relating to section 143a — 2(7). At the time of the accident, May 24, 1985, there was no reference in plaintiff’s automobile policy to section 143a — 2(7). The relevant provisions in the Petreikises’ policy provided:

“Underinsured Motorists Insurance is included subject to the following:
(a) The company will pay uncompensated damages which the insured or his legal representative shall be legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury, caused by accident and arising out of the ownership, maintenance or use of such underinsured motor vehicle.
The Company shall not be obligated to make any payment because of bodily injury to which this insurance applies until after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments of settlements.
* * *
‘Subrogation’
In the event of any payment under this insurance, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.”

Ray testified an endorsement incorporating the section 143a — 2(7) provision had been adopted for the various policies by October 1985. The record does not include any evidence of such endorsements.

The exhibits establish the following chronology:

(1) May 24, 1985: The accident happened at 9:44 p.m., taking place on Ridgeland Avenue and 126th Place in Palos Heights, with Mary Frances and a boy, both pedestrians, being hit on the east side of the northbound lines by an automobile driven by Albert Michael Olson. A ticket was issued to Olson for violation of section 11 — 1003.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 9572, par. 11— 1003.1), which charges drivers to exercise due care to avoid colliding with any pedestrian.

(2) May 30, 1985: The loss report by the insurance agent to plaintiff referred only to the medical coverage portion of the Petreikises’ automobile insurance policy.

(3) July 10, 1985: The insurance agent forwarded Mary Frances’ medical bills to plaintiff.

(4) August 12, 1985: A negligence action was filed in the circuit court of Cook County (case No. 85 — L—18662) on behalf of Mary Frances against Olson. Attorney for Mary Frances is Anthony C. Scrementi.

(5) February 17, 1986: Letter by Scrementi to plaintiff, provides as follows:

“Please be advised that we have been retained to represent Mary Petreikis, a minor, for injuries she received on or about May 24,1985, as a pedestrian struck by a motor vehicle.
Claim is hereby being made for payment under the medical pay provision and the underinsured motorist provision of policy #FD 833695 for the two automobiles insured by her father, Roy Petreikis. A copy of the face sheet of the policy is enclosed.
Claim is also being made under the applicable provisions of the homeowner’s policy, number HD 725374, of her parents’ Roy and Katherine Petreikis, a copy of the face sheet is enclosed.
Also enclosed for your convenience is a copy of the police report.
If you should be in need of any additional information in order to process these claims, please contact the undersigned.”

(6) February 25, 1986: Letter from plaintiff (by C. Fred Ray) to Scrementi, provides as follows:

“We acknowledge yours of February 17th.
Enclosed is a copy of the E-140 Amendatory Endorsement which you will find self-explanatory and we paid our medical payments limits of $5,000.00 to the insureds on July 17th.
As you have pointed out we might have uninsured motorist coverage available provided proof can be established; that Mr. Olson was uninsured. If you have any such evidence please present same to us along with an accounting of Mary’s damages for our further attention.
If Olson had coverage but may have been limited to an amount less than our uninsured motorist limits, please advise in the event we may be exposed under the underinsured motorist coverage.
We will appreciate your further advice and with best regards remain ***.”

(7) February 25, 1986: Letter by Ray to the investigating firm of Gay and Taylor, Inc., provides as follows:

“For your information we enclose a copy of the police report, insured’s report and letter of February 17th from Attorney Scrementi.
We have paid what we believe to be the maximum due under the medical payments to the Petreikis people but if Olson is indeed uninsured, we may have uninsured or perhaps underinsured motorist coverage exposure.
We would like to have you contact Olson for his statement concerning not only the details of this occurrence but of course his insured status so that we will know what our exposure really is.
It would be a good idea to have a statement from our insured’s daughter concerning the facts of the occurrence even though I am sure she will simply tell you what her lawyer tells her to. It does appear that she at least was extremely seriously injured and with a hospital bill of almost $60,000 alone, we can foresee some possible extreme exposure here.
We will await your report and with best regards remain * * * ff

(8) March 6, 1986: Letter by Gay and Taylor to plaintiff notifying plaintiff that Olson’s liability insurance limits were $15,000, and the name of Olson’s insurance carrier was Prestige Casualty Company. This letter further stated:

“AGENT CONTRACT:
We contacted the Miller Agency at 123rd and South Cicero Avenue in Alsip, IL. This agency underwrites high risk and substandard business in the automobile area.”

It went on to state:

“As of this date, the question arises in our mind, as to whether or not the claimant’s attorney of record, who is now seeking indemnification from the Standard Mutual policy, will not turn his attention regarding the claimant against her own parents in reference to their homeowner’s liability insurance. We make this reference as to when she reaches her majority, will she not bring suit against her own parents for their negligence?”

(9) March 17, 1986: Gay and Taylor phone conference with Scrementi.

(10) March 18, 1986: Letter from Gay and Taylor to Scrementi asking for a meeting with Mary Frances for purposes of taking a statement.

(11) April 18, 1986: Scrementi’s letter to Gay and Taylor, provides as follows:

“In response to your letter of March 18, 1986, please be advised that our client is physically unable to give a statement at this time due to the severity of her injuries. If I can be of assistance in any other way, please give me a call.
Also, please be advised that we have made demand upon the Liability Carrier of the responsible party to tender the policy limits. Once that has been resolved, we will, in all likelihood, be pursuing an underinsured motorist claim with your principle [sic], I shall keep you advised.”

(12) April 30,1986: Ray’s letter to Scrementi, provides as follows:

“We acknowledge your letter of April 18th directed to Gay & Taylor, our adjusters.
When the primary carrier has tendered their policy limits, we will need proof of their policy limits, plus a copy of any investigative material you have which would provide us information upon which we can evaluate this entire claim and thereafter we will attempt an evaluation if we are required to do so.
We appreciate your cooperation and with best regards remain ***.”

(13) September 11, 1986: “Indemnifying Release” to Albert M. Olson and Prestige Casualty Company, with consideration of $15,000, was executed by Roy Petreikis, as guardian of the estate of Mary Petreikis, a minor.

(14) December 8, 1986: “Order of Distribution, Severance and Dismissal” was entered in Cook County cause No. 85 — L—18662.

(15) February 16, 1987: Draft for $15,000 was issued from Prestige Casualty Company on behalf of Albert M. Olson.

(16) April 24,1987: Scrementi’s letter to Ray, provides as follows:

“Pursuant to our telephone conversation of April 24, 1987, enclosed please find the following documents:
1. A copy of your letter dated April 30, 1986, requesting that we obtain the policy limits from the primary carrier and forward to you proof of the settlement, policy limits and extent of injury;
2. A copy of the face sheet of the policy issued by the primary carrier to Albert Olson indicating policy limits of $15,000.00;
3. A copy of the settlement draft from the primary carrier for the policy limits in the sum of $15,000.00;
4. A copy of partial special damages and reports regarding the condition of the insured’s daughter, Mary Petreikis.
If additional information is required, please let me know and I will attempt to provide same. You have already tendered medical payments in the sum of $5,000.00. You or your adjusters, Gay and Taylor, may already have additional information regarding the care and treatment rendered to the insured’s daughter, Mary Petreikis.
If the enclosed information is sufficient, please tender the sum of $85,000.00 payable to Roy Petreikis as guardian of the estate of Mary Ann [sic] Petreikis, a minor, and Cifelli, Baczynski & Scrementi, Ltd., attorneys, as payment under the underinsured motorist provision of Mr. Petreikis’ policy with limits of $100,000.00 less the $15,000.00 received from the primary carrier.
Thank you for your cooperation and assistance.”

(17) April 30,1987: Ray’s letter to Scrementi, provides as follows:

“Thank you for your letter of April 24th with enclosures.
You did not send us any investigative material, nor did you send us any accounting of the doctors bills provided they are separate from the hospital charges and this material would help us get our file in order for an evaluation.
We have asked our attorney to review this matter and hopefully sometime shortly after May 13th we will be able to contact you further.
We do appreciate your cooperation and with best regards remain ***.”

(18) May 13, 1987: Letter to C. Fred Ray from Scrementi sending additional materials, which included medical records and an accident report.

Plaintiff brings the present action under the declaratory judgment provisions of section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701). The relief sought was a declaration that defendants were not entitled to the underinsured motorist coverage because:

“13. The action of the Defendants in executing a release to Albert M. Olson has destroyed the Plaintiff’s subrogation rights against Albert M. Olson for any payment to the Defendants under their underinsured motorist coverage. The Defendants have violated the subrogation provisions of their underinsured motorist coverage (Paragraph 3(e) of Part IV of the amendatory endorsement) which provides that ‘the insured shall do nothing after loss to prejudice such (subrogation) rights.’
14. The Defendants did not give to Plaintiff either written or oral notice, and the Plaintiff had no knowledge that a tentative settlement had been reached by the Defendants with Prestige Casualty Company for payment of their policy limits prior to that settlement being consummated.
15. Plaintiff had no knowledge that the Defendants had reached a settlement with Prestige Casualty Company for payment of their policy limits prior to its consummation and therefore had no opportunity to advance a payment to the Defendants in an amount equal to the tentative settlement.”

We first determine whether the Petreikises’ insurance policy contains provisions inconsistent with the dictates of section 143a— 2(7) of the Code. Insurance policies should be construed as a whole, giving effect to every part, as far as possible. (Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 121, 294 N.E.2d 7, 12; Konrad v. Hartford Accident & Indemnity Co. (1956), 11 Ill. App. 2d 503, 526, 137 N.E.2d 855, 867.) Where the language in a policy is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. (Hartford, 10 Ill. App. 3d at 121, 294 N.E.2d at 12; Banner Insurance Co. v. Avella (1970), 128 Ill. App. 2d 471, 475, 262 N.E.2d 791, 793.) The Petreikises’ policy contained the uninsured motorist insurance provision, freeing the insurer from making payments until after collection from other coverage has been exhausted. These provisions must be read with the subrogation provision, which provides “[t]he insured shall do nothing after loss to prejudice” the insurer’s subrogation rights. These provisions are not inconsistent and, when construed together, require cooperation between the injured party and his or her insurer when settling with the tortfeasor. Section 143a — 2(7) of the Code creates an additional burden on the insurer by requiring, upon receiving notice from the insured, to advance the amount of the settlement or waive subrogation rights. We find nothing inconsistent between the policy provisions and section 143a — 2(7). We conclude plaintiff ordinarily was entitled, by the insurance policy provisions and by the statute, to notice of defendants’ intent to settle with Olson.

Defendants contend plaintiff waived its right to the notice or were estopped by plaintiff’s conduct from defending on the lack of notice defense. They also contend that their actions were sufficient to comply with the requirements of section 143a — 2(7) and the policy provisions.

Generally, legislation to protect civil rights and govern contracts, not carrying criminal provisions, may be waived by those affected. (2A N. Singer, Sutherland on Statutory Construction §55.08 (Sands 4th ed. 1984).) A waiver is an intentional relinquishment of a known right. To constitute a waiver, the words or conduct of the insurer must have been inconsistent with its intention to rely on the requirements of the policy. Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 304, 393 N.E.2d 1223, 1229; see also 18 Ill. L. & Prac. Estoppel §21 (1956).

Estoppel implies the prejudicial reliance of the insured upon some act, conduct, or nonaction of the insurer. An estoppel may be found even though the insurer neither intended to mislead, nor to relinquish its own rights. Nevertheless, to establish an estoppel, the insured must show that (1) it was in some manner misled by the acts or statements of the insurer or its agents; (2) it relied on this conduct or misrepresentation; (3) such reliance was reasonable; and (4) it was prejudiced thereby. (Florsheim, 75 Ill. App. 3d at 304-05, 393 N.E.2d at 1229.) In Florsheim, the action against the insurer was not filed within the limitation period provided for by the insurance policy. The insurer had explicitly denied liability three months before the limitation period had expired. The trial court’s finding of no waiver or estoppel, as to the limitation period defense, was affirmed.

As has been indicated, defendants, under the terms of the policy with plaintiff, could not prejudice plaintiff’s rights to subrogation. The evidence of waiver or estoppel appears to come from two exhibits, exhibit No. 14 and exhibit No. 15.

Exhibit No. 14 is the April 18, 1986, letter from Scrementi to Gay and Taylor, which was forwarded to plaintiff. The second paragraph advises plaintiff of Screnienti’s demand for Olson’s policy limits, which were known by plaintiff and defendants to be $15,000. The intention to proceed against plaintiff under the Petreikis policy for the uninsured amount was indicated “[o]nce [the Olson limits] has been resolved.” Exhibit No. 15 is the April 30, 1986, letter to Scrementi from plaintiff acknowledging receipt of the April 18, 1986, letter, and stating:

“When the primary carrier has tendered their policy limits, we will need proof of their policy limits, plus a copy of any investigative material you have which would provide us information upon which we can evaluate this entire claim and thereafter we will attempt an evaluation if we are required to do so.”

No mention is made of plaintiff’s subrogation rights or the possible desire to proceed undér section 143a — 2(7) of the Code. Neither is there a specific waiver of plaintiff’s subrogation rights.

Defendants cite, under the issue of estoppel, National Discount Shoes, Inc. v. Royal Globe Insurance Co. (1981), 99 Ill. App. 3d 54, 424 N.E.2d 1166. This case actually is concerned with the issue of waiver. A building burned, and the insurer paid the mortgage holder, and the balance to the listed insured. The insured, prior to the fire, had sold the property and attempted to assign to the plaintiff purchaser the insurance benefits. The insurance policy provided assignments were not valid unless given with the insurer’s approval. The action arose when the plaintiff sued for the coverage. The plaintiff contended waiver of the insurance policy assignment clause was affected by the payment made to the mortgage holder. The appellate court held waiver did not exist for that reason, but went on to state:

“Our conclusion that as a matter of law the insurer cannot be considered to have waived the consent provision in its policy does not mean however that under no circumstances can this plaintiff recover on the policy. As already noted the purpose of the consent requirement is to protect the insurer against an unbargained for increase of risk. While we are aware that earlier cases have enforced the consent clause and automatically denied recovery where the purchaser failed to obtain the insurer’s consent to the assignment, we are persuaded by the more recent cases that we should not place form over substance and enforce a forfeiture on technical grounds. If in fact the breach of the policy provision does not increase the insurer’s risk (Imperial Enterprises, Inc. v. Fireman’s Fund Insurance Co. (5th Cir. 1976), 535 F.2d 287; National American Insurance Co. v. Jamison Agency, Inc. (8th Cir. 1974), 501 F.2d 1125), or if the insurer would have routinely approved the assignment had it been presented before loss (University of Judaism v. Transamerica Insurance Co. (1976), 61 Cal. App. 3d 937, 132 Cal. Rptr. 907), the plaintiff may still recover on the policy for its own loss.” National Discount, 99 Ill. App. 3d at 61, 424 N.E.2d at 1171-72.

We recognize the possibility plaintiff’s risk was not increased by defendants’ actions. Olson very well may have been judgment proof, and the possible high risk status might so indicate. However, no specific evidence as to Olson’s financial status was introduced. Also, no evidence was introduced indicating plaintiff would have routinely waived the subrogation rights.

The facts do not clearly indicate an intentional relinquishment of the plaintiff’s right to subrogation. We cannot ascertain whether plaintiff actually intended for defendants to collect the Olson policy limits, granting Olson an absolute release, without specific approval from plaintiff. The trial court’s decision as to waiver was not against the manifest weight of the evidence.

The question of estoppel is a more complicated issue. Regardless of plaintiff’s intention, if there was conduct on plaintiff’s part which misled defendants, and defendants reasonably relied on the misrepresentation to their prejudice, then estoppel should apply. (See Florsheim, 75 Ill. App. 3d at 304, 393 N.E.2d at 1229.) Illinois Law and Practice’s position on this topic includes the following statements:

“Also, a party who prevents performance in accordance with the requirements of a contract, or who induces the opposite party to perform in a different manner, will not be allowed to insist on strict performance.” (18 Ill. L. & Prac. Estoppel §29, at 102 (1956).)
“Where a person stands by and sees another about to commit, or in the course of committing, an act infringing on his rights and fails to assert his title or right, he will be estopped afterward to assert it.” (18 Ill. L. & Prac. Estoppel §30, at 102 (1956).)

(Also see Artnell Co. v. National Broadcasting Co. (1972), 4 Ill. App. 3d 970, 974, 282 N.E.2d 493, 495.) Estoppel can be triggered where there is prejudicial reliance based on the insurer’s conduct. (Salloum Foods & Liquor, Inc. v. Parliament Insurance Co. (1979), 69 Ill. App. 3d 422, 429, 388 N.E.2d 23, 28; Anderson v. Safeway Insurance Co. (1973), 10 Ill. App. 3d 597, 295 N.E.2d 117 (abstract opinion).) Salloum also recognized “the modem view that an insurer must deal fairly and in good faith with its insureds.” Salloum, 69 Ill. App. 3d at 433, 388 N.E.2d at 31.

It would be error to say Scrementi’s letter of April 18, 1986, was notice in advance of a settlement between defendants and Olson sufficient to meet the requirements of section 143a — 2(7). The second paragraph of plaintiff’s letter to Scrementi, dated April 30, 1986, made the statement: “When the primary carrier has tendered their policy limits, we will need proof of their policy limits.” We find this statement was not sufficient to justify defendants proceeding with a complete settlement with Olson for his policy limits without further contact with plaintiff.

Subrogation rights, which possibly could provide plaintiff with an $85,000 reimbursement, can hardly be considered insignificant. Scrementi, as attorney for defendants, is charged with knowledge of the law and contract obligations surrounding the uninsured policy provisions. We know of no rule requiring the insurer’s representatives to advise counsel for the insured of various legal requirements. As we have said, the insurer’s right to subrogation was clear. The Ray letter of April 30, 1986, could well be read to suggest plaintiff would determine the propriety of any payment under the defendant’s uninsured motorist clause when a settlement for the policy limits was offered by Olson’s representatives. At that time, a decision to advance funds, pursuant to section 143a — 2(7), may have been considered. We note Ray’s letter referred to the tender of the policy limits, not the receipt of the policy limits, in settlement of all claims against Olson.

The facts do not necessarily indicate conduct on the plaintiff’s part inducing defendants to act to their detriment, nor do they indicate plaintiff stood by, without giving warning, while seeing defendants about to commit an act detrimental to the plaintiff’s interest. The defendants did not establish their reliance on the plaintiff’s letter in settling the Olson claim, without giving notice under section 143a— 2(7), was reasonable.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAROLYN J. HALL FINT, Defendant-Appellant.
    Fourth District
    No. 4—88—0813
    Opinion filed May 17, 1989.
    John L. Wright, Jr., Tracy A. Smith, and David G. Fint, all of Fint, Wright & Associates, Ltd., and George Taseff, of Jennings, Novick, Eggan & Ostling, P.C., both of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Carolyn J. Hall Fint appeals from an order of the circuit court of McLean County dated October 7, 1988, in which the court denied her petition to rescind the statutory summary suspension of her driving privileges. (Ill. Rev. Stat. 1987, ch. 951/2, pars. 2— 118.1, 6 — 208.1, 11 — 501.1.) We reverse and remand this cause for further proceedings.

On September 3, 1988, at 11:47 p.m., Bloomington police officer Jeffrey Klepec arrested defendant for violating numerous provisions of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 100 et seq.), including driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501). At 11:58 p.m. on September 3, 1988, the officer warned her about the consequences of submitting to a blood, breath, or urine chemical test. Ill. Rev. Stat. 1987, ch. 95V2, par. 11-501.1(c).

The officer completed a document entitled “law enforcement sworn report” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(d)), which report indicated defendant submitted to a chemical test on September 3, 1988, at 12:21 a.m. Because the test disclosed defendant had an alcohol concentration of .17, her driving privileges were summarily suspended. Defendant subsequently received confirmation from the Secretary of State of the statutory summary suspension of her driving privileges. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(1).) The document informed defendant she would receive a minimum three-month suspension, beginning October 19, 1988, and provisionally ending January 19,1989.

On September 8, 1988, defendant petitioned the court to rescind the statutory summary suspension of her driving privileges. At the hearing held on the petition, defendant moved for a directed finding, contending the law enforcement sworn report was facially defective in that it showed the chemical test was performed many hours prior to the time of her arrest. She argued this procedure failed to comply with the standards promulgated by the Department of Public Health, which require a mandatory 20-minute observation period from arrest to testing time. The trial court denied defendant’s motion. It labelled the testing date of September 3 as a “scrivener’s error” and stated it was “not fatal” to the case. Following the conclusion of the hearing, the court denied defendant’s petition to rescind.

Defendant now appeals that decision and repeats her contention the law enforcement officer’s sworn report was facially defective because it contained erroneous information. Relying on section 11— 501.1(i) of the Code, she argues her driving privileges should not have been suspended initially. That section states as follows:

“Upon receipt of the sworn report from the law enforcement officer, the Secretary of State shall confirm the statutory summary suspension by mailing a notice of the effective date of such suspension to the person and the court of venue. However, should the sworn report be defective by not containing sufficient information or be completed in error, the confirmation of the statutory summary suspension shall not be mailed to the person or entered to the record, instead the sworn report shall be forwarded to the court of venue with a copy returned to the issuing agency identifying any such defect.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(i).

The Second District Appellate Court recently addressed a similar question in People v. Cooper (1988), 174 Ill. App. 3d 500, 528 N.E.2d 1011. There, a law enforcement sworn report indicated an officer had given a motorist who was under the influence of alcohol notice of the suspension of his license on the date prior to administering a breathalyzer test. The court decided that, because the report was required to effectuate the suspension and the State had made no attempt to amend the report to correct the apparent error, the suspension had to be reversed and the cause remanded for further proceedings. It noted that, in the recent case of People v. Badoud (1988), 122 Ill. 2d 50, 521 N.E.2d 884, the supreme court intimated that errors of this type “would be corrected at some point” in the proceedings. Cooper, 174 Ill. App. 3d at 502, 528 N.E.2d at 1012.

We recognize the trivial nature of the inaccuracy of the report here and that the evidence at the circuit court hearing strongly suggested the officer arrested defendant before the test was administered. We also recognize the term of defendant’s summary suspension has apparently expired. Nevertheless, defendant is entitled to a reversal of the summary suspension if it was improper. The inaccuracy of the report in Cooper was as trivial as here, and the precedent of that case indicates the suspension was improper. We agree with the reasoning in Cooper, and, as a matter of comity and to maintain uniformity in the technical operation of the procedures involved, we conclude we must reverse.

In Badoud, the law enforcement officer’s report was not verified as required by section 11 — 501.1(d) of the Code. However, in remanding for a new circuit court hearing, the supreme court held the State should be given an opportunity to obtain verification of the report by the officer before holding a new hearing to which the defendant there was entitled. Similarly, here, the relief to which the defendant is entitled is only a new hearing, and the State should be given an opportunity to make verified amendment to the officer’s report if it can do so. If such amendment cannot be made, the circuit court must decide the case in favor of defendant. If such amendment is properly made, the circuit court shall rehear the question of the propriety of the suspension.

The judgment appealed is reversed and the cause remanded to the circuit court of McLean County with directions to proceed in accordance with this opinion.

Reversed and remanded with directions.

McCULLOUGH, RJ., and LUND, J., concur.