author: JUSTICE STOUDER

text:
    STEPAN COMPANY, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD, Respondent-Appellee.
    Third District
    No. 3—88—0004
    Opinion filed February 8,1990.

      Mayer, Brown & Platt, of Chicago (Percy L. Angelo, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Patricia E. Collins, Assistant Attorney General, of Chicago, of counsel), for respondent.
   JUSTICE STOUDER

delivered the opinion of the court:

Pursuant to sections 29 and 41 of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, ch. 1111/2, pars. 1029, 1041), appellant Stepan Chemical Company (Stepan) seeks administrative review of the November 25, 1987, final order of the Illinois Pollution Control Board (the Board). The final order amends sections 211 and 215 of the Illinois Administrative Code (35 Ill. Adm. Code §§211, 215 (1985)), regarding air emission rules applicable to air oxidation processes in the synthetic organic-chemical industry.

Stepan maintains the Board failed to consider the proper statutory factors in enacting the regulations and the adoption of a December 31, 1987, compliance date was arbitrary, unreasonable, and capricious. Ste-pan asks this court to vacate the Board’s November 25, 1987, final order amending sections 211 and 215 of the Illinois Administrative Code (35 Ill. Adm. Code §§211, 215 (1985)), and to remand this matter to the Board with directions to take into consideration factors set forth in section 27(a) of the Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1027(a)), and to adopt a reasonable compliance date.

On September 23, 1986, the Illinois Environmental Protection Agency (IE PA) filed with the Board amendments to rules and regulations of the State of Illinois with regard to air pollution. On November 25, 1987, in docket No. R86 — 40, the Board adopted a rule which amended Rules 211 and 215. The Board promulgated this rule pursuant to a congressional mandate found within the Federal Clean Air Act (CAA) (42 U.S.C. §7410 et seq. (1982)). The rule limits the amount of volatile organic material (VOM) that can be emitted from facilities using an air-oxidation process. The Board established a December 31, 1987, compliance date. Stepan challenges the Board’s final order.

The rule requires process vent streams to be vented to a combustion device that is designed and operated either to reduce VOM emissions by at least 98% or to emit less than 20 parts per million VOM. The limitations only apply if the vent streams have a total resource effectiveness (TRE) of less than 1.0, as determined by a specified formula, and the vent streams are not controlled by an existing combustion device. The rule also contains a “grandfather clause” providing that facilities with existing combustion devices to control process VOM emissions do not have to meet the 98% limit until the combustion device is replaced. A combustion device is considered to be replaced when all of the device is replaced, or when the cost of replacement of part of the device equals 50% or more of the cost of replacing the entire device. The Board also noted that significant repairs can be considered a replacement.

The rule applies to plants using air oxidation processes located in Will, McHenry, Cook, Du Page, Lake, Kane, Madison, St. Clair, Macoupin, and Monroe Counties. Will and McHenry Counties, although listed by the United States Environmental Protection Agency (USEPA) as ozone attainment areas or unclassified areas, are included under the rule because they are located within a major urbanized area which is designated an ozone nonattainment area.

An air oxidation process is defined under the rule as any unit process which uses air or a combination of air and oxygen as an oxidant in combination with one or more organic reactants to produce one or more organic compounds. (35 Ill. Adm. Code §215.521 (1985).) Air oxidation processes are characterized by the emission of large amounts of inert material, primarily nitrogen, containing a low concentration of VOM to the atmosphere. The record indicates there are at least four oxidation processes in Illinois affected by the new rule.

The instant matter came before the Board upon a proposal of the IEPA to amend certain portions of sections 211 and 215 of the Illinois Administrative Code (35 Ill. Adm. Code §§211, 215 (1985)) pertaining to emissions of VOM released by air oxidation processes. The origin of this proceeding is rooted in the requirements of the CAA (42 U.S.C. §7401 et seq. (1982)). Pursuant to section 109 of the CAA (42 U.S.C. §7409 (1982)), the USEPA adopted a national ambient air quality standard (NAAQS) for ozone. Compliance with this NAAQS was to have been demonstrated for all areas of Illinois by December 31, 1982, according to the provisions of section 172(a)(1) of the CAA. (42 U.S.C. §7502(a)(2) (1982).) Illinois, however, was unable to make such a demonstration and, therefore, applied for and received an extension of this deadline until December 31, 1987. The CAA (42 U.S.C. §7401 et seq. (1982)) requires that Illinois revise its State implementation plan (SIP) for existing stationary emission sources in ozone nonattainment areas to require the use of reasonably available control technology (RACT). Under the CAA, the USEPA requires that the SIP include, at least for major urban areas, enforceable regulations reflecting the application of RACT to those stationary sources for which the USEPA has published control technique guidelines (CTG) after 1978.

Legally enforceable RACT regulations must be submitted to the USEPA for all sources for which CTGs have been published. CTGs define RACT for selected categories of air emission sources. The USE-PA’s Office of Air Quality Planning and Standards issues CTGs to State and local air pollution control agencies in order to provide them with information regarding achievable emission standards and the types of controls which are considered to be reasonably available. The USEPA published a final CTG for the control of emissions from air oxidation processes in the synthetic organic-chemical manufacturing industry in December of 1984.

The USEPA issued the CTG for control of emissions from air oxidation processes with the intention that RACT cover air oxidation facilities that emit volatile organic compounds, compounds which participate in atmospheric photochemical reactions to produce ozone. The recommended RACT was to be applicable to air-oxidation facilities within the synthetic organic-chemical manufacturing industry. This includes all reactors in which air is used as an oxidizing agent to produce an organic chemical, and is based on incineration of process vent streams discharged to the atmosphere, and for which the TRE index value is less than 1.0.

The Board held two hearings in docket No. R86 — 40. On February 24, 1987, the Board held a hearing in Springfield, Illinois. Richard Forbes, manager of the Control Programs Unit in the IEPA’s Air Pollution Control Division, testified as to the IEPA’s rationale for selecting the geographic coverage area for the proposed amendments. Forbes testified that although Will County is designated an ozone attainment area, emissions from Will County impact upon the ozone air quality of the other counties in the ozone nonattainment area. Dr. John Reed, supervisor of the Technical Support Unit of the IEPA’s Air Quality Planning Section, testified regarding the production of air oxidation chemicals and the requirements for Illinois under the CAA. Reed indicated the four Illinois plants affected by the rule change would have little difficulty complying with the new rule. Reed commented that the State sent questionnaires to those plants requesting information on their processes. He noted that based on the information provided him from the responses to the questionnaire, all streams would be in compliance. With respect to the economic reasonableness of the rule, Reed commented that since the determination of the RACT adequacy was based on the TRE index, the maximum cost effectiveness would be $1,600 per megagram, or $1,452 per ton. He also noted that since no streams required additional control, Illinois industry would incur no costs due to the rule change.

On March 10, 1987, the Board held a hearing in Chicago on the proposed rule. Dan Muno, manager of Stepan’s corporate environment engineering department, testified regarding the rule’s application to Stepan. Muno argued the rule’s definition of process vent stream was vague and should not include vents that result from the product purification process. In addition, Muno argued the grandfather clause was unfair in lieu of Stepan’s installation in 1978 of an innovative catalytic incinerator at a cost of approximately $2 million which has met design requirements and provided 89% to 96% control for VOM. Muno finally argued the proposed use of Reference Method 18 of the USEPA guidelines used to determine the concentration of all organics is inapplicable to Stepan’s plant and that therefore the Board’s rule should include a provision for an alternative method.

On May 7, 1987, the Illinois Department of Energy and Natural Resources (DENR) issued a negative declaration to the Board stating its determination that a formal economic impact study (EcIS) was not necessary in the instant case based on DENR’s belief that no Illinois facility had annual emissions great enough to be affected by the rule. Later, in June 1987, following Stepan’s filing of comments with the Board, DENR issued an updated negative declaration. DENR addressed Stepan’s claim that many facilities would not be in compliance under the proposed rule by stating that the new information provided it did not convince it that an EcIS was required. DENR based the updated negative declaration on the statutory criterion that the cost of making a formal study was economically unreasonable in relation to the value of the study to the Board in determining the adverse impact of the regulation. (Ill. Rev. Stat. 1987, ch. 961/2, par. 7404(d).) On June 24, 1987, the Economic and Technical Advisory Committee (ETAC) issued its concurrence in DENR’s finding that an EcIS was not necessary for the R86 — 40 rulemaking proceeding.

On July 16, 1987, the Board issued its “First Notice, Proposed Opinion and Order,” in R86 — 40. The Board noted the basis for the rule change was to correct deficiencies in the Illinois SIP which had been identified by the USEPA. Regarding geographic coverage, the Board concluded that it would propose the rule be applicable to the 10 counties previously mentioned. With respect to the applicability of the rule to all streams, the Board adopted the IEPA’s language regarding vent coverage. The Board then responded to Stepan’s request that Reference Method 18 be replaced by substituting Reference Method 25A in place of Reference Method 18.

On November 25, 1987, the Board issued its final order, submitting the rule change to the Secretary Of State’s office for final notice. The Board concluded the rule’s geographic coverage would include all 10 counties previously mentioned, that the rule covered reactor bottoms streams since technology to control these streams is reasonably available, that Reference Method 25A would be appropriate in the circumstances presented by Stepan, and with respect to the grandfather clause, the Board commented that a facility did not have to meet the emission limitations if the facility has an existing combustion device, until that device is replaced. The Board noted that the intention of the grandfather clause was to allow facilities like Stepan’s, which have made a relatively recent investment updating their combustion devices, to avoid having to replace the combustion device during its useful life. Stepan brings the instant appeal.

When an administrative agency, such as the Board, exercises its rulemaking powers, it is performing a quasi-legislative function, and, therefore, it has no burden to support its conclusions with a given quantum of evidence. (Illinois State Chamber of Commerce v. Pollution Control Board (1988), 177 Ill. App. 3d 923, 532 N.E.2d 987.) The appellants sustain a high burden of establishing the invalidity of regulations promulgated by the Board. (Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954, 364 N.E.2d 631.) Because administrative agencies are inherently more qualified to decide technical problems, this court, when reviewing administrative rules and regulations, may not invalidate a regulation unless it is clearly arbitrary, unreasonable, or capricious. Central Illinois Light Go. v. Pollution Control Board (1987), 159 Ill. App. 3d 389, 511 N.E.2d 269.

Stepan first contends the Board’s decision was arbitrary, unreasonable, and capricious because the Board failed to take into account the technical feasibility and economic reasonableness of the rule. Stepan asserts the Board exclusively relied upon the USEPA’s CTG in rendering its decision. Stepan argues the CTG only pertains to air oxidation systems and the associated product recovery systems. Stepan maintains the CTG does not pertain to its distillation processes. Thus, the Board’s determination that the CTG’s scope includes Stepan’s distillation processes or storage tanks was arbitrary, unreasonable, and capricious.

The record indicates the Board considered both the technical feasibility and the economic reasonableness of the rule. In its proposed opinion and order for first notice, the Board noted the IEPA presented evidence that technology to control the process streams was reasonably available, the method for controlling the streams was included in the CTG, and the method was sound. The Board opined that the scope of the CTG included Stepan’s distillation columns and storage tanks. Moreover, Stepan presented no evidence indicating compliance was not technically feasible.

We note it is not this court’s role to determine if the manifest weight of the evidence reveals that it was technically feasible and economically reasonable for a substantial number of the affected sources to comply with a proposed Board rule; it is only necessary that the record reflect that these factors were taken into account. (Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 346 N.E.2d 212.) The record indicates, despite Stepan’s contention to the contrary, the Board considered the technical feasibility and economic reasonableness of the rule. We believe, therefore, the Board’s findings on the issue of technical feasibility were not arbitrary, unreasonable, or capricious.

Stepan next contends the Board’s decision that the rule was technically feasible and economically reasonable was based on a THE alternative inapplicable to Stepan. Stepan contends where the THE alternative is not available, there is no evidence in the record as to technical feasibility and economic reasonableness of the rule.

The Board originally proposed that Stepan implement Reference Method 18 to determine TRE. However, Stepan objected and suggested the Board allow the IEPA to substitute appropriate alternative tests in such situations. The Board recognized and noted Stepan’s concerns and determined that Reference Method 25A be used instead. Stepan, however, contends that Reference Method 25A is also inapplicable to the present situation. We note that the Board heard and appreciated the concerns raised by Stepan with respect to Reference Method 18. The Board then unanimously agreed to substitute Reference Method 25A in place of Reference Method 18. We are not a technically qualified superagency ready to determine whether the Board’s decision with respect to Reference Method 25A was right or wrong. This court should not engage in weighing the evidence in this matter in order to determine whether the Board’s action was the correct one. Based upon the record presented, we believe the Board’s decision to replace Reference Method 18 with Reference Method 25A was not arbitrary, unreasonable, or capricious.

Section 27(a) of the Act directs the Board, in promulgating regulations, to take into account the technical feasibility and economic reasonableness of reducing the particular type of pollution sought to be regulated. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1027(a).) The standards set forth in section 27(a) reflect a legislative intent to prescribe Board rulemaking to the extent necessary to insure that the Board acts within the boundaries of its delegated authority. (Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 346 N.E.2d 212.) The section does not mandate any particular standards that the Board must comply with in adopting its rules nor does it impose specific requirements applicable to the resolution of individual challenges of a regulation. (Illinois State Chamber of Commerce v. Pollution Control Board (1988), 177 Ill. App. 3d 923, 532 N.E.2d 987.) We believe, after reviewing the record submitted in the instant case, the Board acted in accordance with the requirements of section 27(a) in adopting the rule.

Stepan next asserts the compliance date established by the Board was arbitrary, unreasonable, and capricious. The Board adopted the rule on November 25, 1987, and established a December 31, 1987, compliance date. Stepan contends the Board’s action violates its rights to due process by placing it in jeopardy of enforcement without time for compliance. Stepan maintains that, given the short time span between the date of adoption of the rule and the compliance deadline, compliance with the rule was technically infeasible and, therefore, the rule was not promulgated in accordance with section 27(a) of the Act. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1027(a).) We believe this argument is meritless. The grandfather clause provides ample time for compliance.

Stepan next proposes that the effect of the compliance date is to require Stepan to close down its Will County plant and such constitutes a taking under the Illinois and United States Constitutions. (See Nollan v. California Coastal Comm’n (1987), 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141.) Stepan proposes the air emission rule does not serve a legitimate State interest in reducing air emissions, nor does it bear any rational relation to the ends sought, that of providing technically feasible and economically reasonable air oxidation emissions limitations. The Board, however, noted that the CAA required compliance with the rule, a RACT rule, by December 31,1987.

In Nollan, the California Coastal Commission attempted to condition the grant of a rebuilding permit on the property owner’s transfer to the public of an easement across beachfront property. The Supreme Court held that even though the Commission’s action constituted a taking, it could be allowed for land use regulation if it substantially furthered governmental purposes that justified denial of the permit. The rule, in the instant case, requiring air oxidation facilities to limit their emissions of VOM in order to protect the ozone substantially furthers the governmental purpose of restoring, protecting, and enhancing the quality of the environment. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1002(b).) We believe, therefore, Stepan’s argument is without merit.

Regarding Stepan’s argument that the Board’s failure to require the preparation of an economic impact study violated section 27(b) of the Act and was arbitrary, unreasonable, and capricious, we respectfully disagree. Stepan contends the Board had no authority to proceed with the adoption of the rule without complying with the economic impact consideration requirements of section 27(b) of the Act. Ill. Rev. Stat. 1987, ch. 1111/2, par. 1027(b).

Section 27(b) does not require an EcIS from DENR in every instance. (See Ill. Rev. Stat. 1987, ch. 1111/2, par. 1027(b).) Section 27(b) requires DENR to prepare an EcIS as provided in the statute. However, where, as here, DENR believes the cost of making a formal study is economically unreasonable in relation to the value of the study to the Board in determining the adverse economic impact of the regulation, the DENR may find preparing an EcIS unnecessary. (Ill. Rev. Stat. 1987, ch. 9672, par. 7404.) On May 7, 1987, DENR issued its negative declaration noting that because no Illinois facilities are believed to have annual emissions great enough to be affected by the proposal, no EcIS was necessary. Stepan later claimed, however, that it believed many facilities would not be in compliance with the rule and that an EcIS should be prepared.

On June 19, 1987, DENR issued a second negative declaration noting that an EcIS was economically unreasonable in relation to the value of the study to the Board’s determination. (Ill. Rev. Stat. 1987, ch. 9672, par. 7404(d).) In addition, ETAC, after reviewing DENR’s second negative declaration, concurred in the DENR’s opinion regarding the necessity of preparing an EcIS. We emphasize that this court should not weigh the evidence presented in order to determine whether an EcIS should have been prepared. Accordingly, the Board’s decision not to prepare an EcIS was not arbitrary, unreasonable, or capricious.

Stepan finally contends that because its plant is located in an ozone attainment area it should not be subjected to the RACT standards. Stepan presented an expert witness who stated that Chicago-area ozone nonattainment was not due to Will County emissions. The Board, however, disagreed with Stepan’s expert witness and included Will County under the rule change. The Board cited the need to control VOM emissions in Will County in order to control ozone in the ozone nonattainment counties of the Chicago area.

We note that Stepan commented in its brief that “there is certainly dispute as to whether compliance with RACT is necessary in Will County and as to whether controls are necessary in Will County to attain ozone compliance in the Chicago area.” We believe it is not the province of this court to resolve such technical disputes. The State legislature created a Pollution Control Board comprised of technically qualified individuals in order to resolve disputes like the one in the instant case. We believe the Board did not act arbitrarily, unreasonably, or capriciously in designating Will County as part of the Chicago-area nonattainment zone.

It is not this court’s role to determine whether the Board’s action in the instant case was wise, or even if it was the most reasonable based on the record. (Central Illinois Public Service Co. v. Pollution Control Board (1987), 116 Ill. 2d 397, 507 N.E.2d 819.) The Board, unlike this court, is well equipped to determine the degree of danger which a pollutant will cause, and then to balance the public threat against an alleged individual hardship. (Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E.2d 684.) By definition the Board’s regulations are founded upon application of agency expertise. The courts should not, and by general agreement, may not, act as “superagencies.” Such is essential if the basic notion of separation of powers is to survive. (See Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 346 N.E.2d 212.) We believe the Board considered the technical feasibility and economic reasonableness of the rule. We conclude, therefore, under these circumstances, the Board’s actions in adopting the proposed rule were not arbitrary, unreasonable, or capricious.

We affirm the November 25, 1987, order of the Illinois Pollution Control Board.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE F. HARP, Defendant-Appellant.
    Fourth District
    No. 4—89—0287
    Opinion filed January 25,1990.

      Benjamin B. Allen, of Alton, and Howard L. White, of Jerseyville, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (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 SPITZ

delivered the opinion of the court:

Defendant was charged by information with criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1)) on May 10, 1988. A Morgan County jury found defendant guilty on January 13, 1989, and on March 7, 1989, the court sentenced him to six years’ imprisonment. At trial defendant admitted he and the victim had sexual intercourse on February 18, 1989, but maintained it was consensual. On appeal, defendant raises seven issues, including various evidentiary matters, effectiveness of counsel, and reasonable doubt. We affirm.

Defendant is 60 years old. He is the brother-in-law of the victim’s former husband, Art, and sold insurance to the couple while they were married. The victim, 34 years old, divorced Art in October 1987.

The victim testified defendant telephoned her on February 17, 1988, to discuss the impending cancellation of several insurance policies. He asked to meet with the victim at her home the following day to discuss insurance and asked whether the victim’s daughter would be at home. The victim arranged to have a friend, Loretta Vaniter (Vaniter), present during defendant’s visit.

Defendant arrived at the victim’s home the next day earlier than planned. The victim telephoned Vaniter, who agreed to come immediately to the victim’s home.

Defendant entered the victim’s home, removed his coat, and went to the bathroom. The victim then went to the bathroom. When she exited, she found defendant standing naked in the hallway. She turned to run but defendant grabbed her from behind, under her arms, and dragged her into her daughter’s bedroom. While being dragged, the buttons on the victim’s blouse popped off, and her jeans were pushed down and fell to her ankles. Defendant forced the victim to lie on her daughter’s bed, held her arms down with one hand, and pushed her underpants aside with the other. He penetrated her vagina with his penis for one to two minutes. After ejaculating, defendant let go of the victim’s wrists and told her Art would kill her if she reported the incident.

Defendant left the house; the victim remained on the bed, crying, where Vaniter found her several minutes later. She told Vaniter the defendant raped her. On cross-examination, the victim testified defendant never gave her money and she and defendant never had sexual relations prior to the assault on February 18.

Vaniter testified she saw defendant leaving the victim’s house as she drove up. She found the victim lying across the bed in her daughter’s bedroom, her blouse ripped open, bra on, jeans down, and panties on. Vaniter asked the victim whether she had pulled her panties up, and the victim replied that defendant had pulled them over to one side. Vaniter telephoned police.

Police officer Richard Evans (Evans), of the Village of South Jacksonville police department, responded to Vaniter’s call. He went to the victim’s house and found her wearing jeans and a torn blouse. The victim was emotional and told him the defendant raped her. Evans testified to the information the victim gave him that day and it was substantially identical to the testimony the victim gave at trial.

Paul Schuh, a crime scene technician with the Illinois State Police, went to the victim’s home, collected evidence, and made photographs. He testified he found two buttons from the victim’s blouse on the floor in the hallway and one button on the bedroom floor. The parties stipulated to a rape kit collected from the victim by Dr. Dennis Adams. Seminal material was found on the vaginal swab, the victim’s jeans and panties, and the bedspread.

The defendant’s defense was consent. He testified he telephoned the victim on December 15, 1988, and received permission to go to her house. The purpose of the call was sex, and he went immediately to her house, where he and the victim engaged in consensual intercourse. On January 11, 1989, defendant telephoned the victim and received permission to go to her house the following day. On January 12 defendant testified they engaged in consensual sexual relations. On January 21, 1989, defendant again went to the victim’s home for sex but she declined.

Defendant testified he telephoned the victim on February 18 and asked to see her. The victim indicated she wanted to see defendant. When he arrived at the victim’s house he removed his coat and went to the bathroom. The victim told him to go to the back bedroom and get ready and she would be right in. The defendant believed the victim was talking about sex. He went into the bedroom, undressed, and lay on the bed. The victim went to the bathroom and emerged with her blouse open and her pants down to the floor. The victim told defendant to lie across the bed and, as he shifted his position, she lay on the bed under him. The victim moved her panties to one side and placed the defendant’s penis in her vagina. After intercourse, the defendant testified, the victim told him he raped her and reached up to scratch him. The victim succeeded in scratching defendant’s head and chest. Defendant grabbed the victim’s wrists. The victim continued to assert defendant raped her. Defendant testified the victim was crying, though he described it as a “put on.” He began dressing, and the victim threatened to call police. He begged her not to do so and left the house. He testified he never threatened her and when he left she was fully dressed with her blouse buttoned.

He admitted having sex with the victim on February 18, but denied using force and making threats. Defendant testified the victim never told him she did not want to have sex on February 18. He testified he gave the victim $30 on January 12 after having sex with her, but contended it was not payment for sex but financial aid previously requested by her.

On cross-examination, defendant claimed the victim was trying to “get him” for money and trying to get at her ex-husband. He described the victim as the aggressor in their sexual relations. On redirect examination, defendant testified he could not have held the victim’s wrists up over his shoulders as she claimed because he lacked the strength, due to medical problems with his shoulder joints.

The State called four rebuttal witnesses. The first was Linda Tees, data process coordinator for Jacksonville School District No. 117. She testified she maintains attendance records for the schools and the victim’s daughter was not in school on December 15, 1988, a snow day, or on January 21, 1989. The victim’s 15-year-old daughter testified she was at home on December 15 because it was a snow day. She testified the roads were impassible. Gary Scott, news director at an AM radio station in Jacksonville, testified he is responsible for making weather records for the National Weather Service. He testified that on December 15, 1987, a snowstorm ended, leaving an accumulation of 71/2 inches of snow.

The final rebuttal witness was Susan Carr (Carr), executive director at Rape Information and Counseling Service in Springfield, Illinois. After listing her qualifications, the court recognized her as an expert witness on rape-trauma syndrome. Carr then defined and explained rape-trauma syndrome and identified how the victim met each of the diagnostic criteria. She testified that in her opinion the victim exhibited symptoms consistent with rape-trauma syndrome.

We now turn to the issues defendant raises on appeal. He first argues he was denied his right to effective cross-examination when the trial court refused to permit his request that the victim demonstrate the manner in which she alleged the defendant grabbed her to drag her down the hallway. We find the trial court properly refused to allow the demonstration.

The admissibility of courtroom demonstrations is discretionary, and a decision regarding admissibility will not be reversed unless the court abused its discretion to the prejudice of the defendant. (People v. Pirrello (1988), 166 Ill. App. 3d 614, 622, 520 N.E.2d 399, 405; People v. Navis (1974), 24 Ill. App. 3d 842, 848, 321 N.E.2d 500, 505.)

“In deciding whether the trial court properly exercised its discretion, reviewing courts look primarily to whether the demonstration is probative of facts in issue and whether it is conducted under substantially similar conditions and circumstances as those which surrounded the original occurrence. (People v. Carbona (1975), 27 Ill. App. 3d 988, 1003-04.)” (Pirrello, 166 Ill. App. 3d at 622, 520 N.E.2d at 405.)

Demonstration evidence should be used to aid the jury in understanding other testimony, and not for dramatic effect. People v. Everette (1989), 187 Ill. App. 3d 1063, 1068, 543 N.E.2d 1040, 1042, quoting People v. Seals (1987), 153 Ill. App. 3d 417, 423, 505 N.E.2d 1107, 1111-12.

Defendant in this case was not denied the opportunity to cross-examine the victim on any part of her testimony. Defendant failed to show the demonstration would be probative of facts in issue and would be conducted under substantially similar conditions and circumstances as those surrounding the original attack. The decision of the trial court not to allow the proposed demonstration did not rise to the level of a denial of a fundamental constitutional right and did not prejudice the defendant. The decision was well within the trial court’s discretion.

The second issue defendant raises is whether the trial court prejudiced him when it denied his motion for a mistrial after he made reference, in response to a question on cross-examination, to a polygraph examination. During his cross-examination of the defendant, the prosecutor asked defendant whether he read the statement he made to police before signing it. Defendant stated he did not read it initially but, when he returned to the police station several days later to take a polygraph test, he read and signed the statement. The prosecutor immediately asked to approach the bench. The jury was sent from the room, and the attorneys discussed the incident with the court. The prosecutor indicated he had not anticipated defendant’s response. The court denied defendant’s motion for a mistrial and ordered the jury to disregard the defendant’s answer. It was stricken from the record. We conclude the trial court properly denied defendant’s motion for a mistrial.

“A defendant cannot complain of the admission of testimony which was invited by the defendant’s own trial tactics. Further, a defendant who procures or invites the admission of evidence, even though it be improper, cannot be heard to complain about it on appeal.” (People v. Escobar (1988), 168 Ill. App. 3d 30, 44, 522 N.E.2d 191, 200.) Escobar also involved references to a polygraph examination by a witness. The prosecutor asked the witness how he remembered he did not have the gun on the day of the murder. The witness recounted the events of the day he was questioned by police and included a brief reference to taking a polygraph examination. The first district held Escobar was not prejudiced by this statement.

In this case, the prosecutor and court acted immediately on the defendant’s answer. This cured any potential prejudice to defendant. (People v. Paino (1985), 137 Ill. App. 3d 645, 650, 484 N.E.2d 1106, 1109.) There is nothing in the record to indicate the prosecutor intentionally elicited the reference to the polygraph. Defendant simply volunteered the information. Our earlier decision in People v. Eickhoff (1984), 129 Ill. App. 3d 99, 471 N.E.2d 1066, is distinguishable. In that case, the State appealed from an order by the trial court allowing defendant’s motion in limine, which sought to preclude admission of a police report in which defendant reportedly refused to take a polygraph examination. We affirmed the trial court’s decision because we agreed the admissions contained in the report were “inextricably intertwined with the offer of a polygraph test and defendant’s refusal” to take the test. (Eickhoff, 129 Ill. App. 3d at 105, 471 N.E.2d at 1070.) Reversing the defendant’s conviction, as defendant urges, would encourage future defendants to utter the words “polygraph examination” knowing that, if convicted, they would win a mistrial or a new trial on appeal. We cannot allow such a result. For that reason, and because we find the defendant did not prejudice himself, we decline to overturn the trial court’s decision denying defendant’s mistrial motion.

The third issue raised by the defendant concerns the admission of rape-trauma-syndrome evidence. He argues its admission was erroneous. Defendant maintains the statute permitting such testimony (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 7.2) is inapplicable in light of case law from this court. He argues the court erred in admitting the testimony because its prejudicial effect outweighed its probative value. He also contends Carr testified in conclusory terms that the victim suffers from rape-trauma syndrome and there was a rape.

At trial defendant objected to Carr’s testimony solely on the ground it was inappropriate for rebuttal. It is well settled that “[t]he admissibility of evidence on rebuttal is within the discretion of the trial court.” (People v. Andrews (1988), 172 Ill. App. 3d 394, 399, 526 N.E.2d 628, 632; People v. Rios (1986), 145 Ill. App. 3d 571, 584, 495 N.E.2d 1103, 1113; Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 657-58, 518 N.E.2d 205, 217.) Carr’s testimony was appropriate on rebuttal because defendant asserted the defense of consent.

Defendant does not object to the portion of Carr’s testimony which defines and explains rape-trauma syndrome, its phases and diagnostic criteria. His objections begin with the prosecutor’s question, “What did you observe about [the victim] that ties into the rape trauma syndrome?” Carr proceeded to explain how the victim herein met each of the diagnostic criteria for rape-trauma syndrome. Prior to trial, Carr had examined diaries written by the victim at the request of her rape counselor. Carr’s testimony included repeated, detailed references to these diaries and the symptoms the victim displays. Carr also made reference to the victim being dragged down the hall as the buttons popped off her blouse. Finally, in response to a question from the prosecutor, Carr testified the victim exhibited symptoms consistent with rape-trauma syndrome.

The State argues that because defendant failed to raise these objections at trial and in his post-trial motion, they have been waived. “Objections at trial on specific grounds *** waive all other grounds of objection. (People v. Jones (1975), 60 Ill. 2d 300, 307.) The defendant has waived the right to object on the grounds he now asserts on appeal.” (People v. Barrios (1986), 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419; see also People v. Gibson (1983), 117 Ill. App. 3d 270, 283, 452 N.E.2d 1368, 1378.) We agree that defendant has waived these objections.

Even on the merits we disagree with defendant that Carr’s testimony prejudiced him. The statute in effect on the date of defendant’s trial states:

“In a prosecution for an illegal sexual act perpetrated upon a victim, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, testimony by an expert, qualified by the court relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence.” Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 7.2.

This statute, effective January 1, 1989, renders People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, and People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335, inapplicable to this case. Once a witness is qualified as an expert, the statute allows the admission of rape-trauma-syndrome testimony. The expert may offer an opinion on the ultimate issue. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) See also People v. Harris (1989), 132 Ill. 2d 366, where the Illinois Supreme Court held a medical doctor may give his or her opinion as to whether the victim was sexually assaulted. (Harris, 132 Ill. 2d at 385.) The evidence was permissible rebuttal evidence. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.3, at 374-75 (4th ed. 1984).

Defendant’s reply brief raised two additional arguments on this issue. He challenged the constitutional validity of the rape-trauma-syndrome statute and argued rape-trauma-syndrome evidence has been found unreliable, unlike other scientific evidence accepted by courts. He cites no authority for the latter proposition and fails to discuss the constitutional validity claim. Issues raised for the first time in the reply brief are waived. 107 Ill. 2d R. 341(e)(7); People v. Brownell (1984), 123 Ill. App. 3d 307, 319, 462 N.E.2d 936, 945.

Defendant next argues Carr prejudiced him when she hugged the victim in the presence of the jury following her testimony. The trial transcript is devoid of any reference to this incident. Defendant made no objection to the incident at trial, but did raise it in his post-trial motion for a new trial. An affidavit filed by Merle Harp, with defendant’s motion for a new trial, states:

“I, MERLE HARP, on Friday, January 13, 1989, during the course of the trial of Maurice F. Harp, observed Susan ChelapCarr testify and leave the stand and sit next to and embraced [sie] the alleged victim *** in the courtroom in the presence of the Jury and the Court, and further, I noticed the Jury react.”

The appellant bears the burden of presenting a record “sufficiently complete to permit review of the error complained of, and doubts arising from the presentation of the record will be resolved against the appellant.” (Griffiths v. Griffiths (1984), 127 Ill. App. 3d 126, 130, 468 N.E.2d 482, 485.) The docket sheet indicates a hearing was held on defendant’s post-trial motion, but a transcript of the hearing was not included with the record on appeal. The appellant may supplement the record on appeal with a bystander’s report when no verbatim transcript is available. (107 Ill. 2d R. 323(c).) The bystander’s report must, however, comply with the requisites of Illinois Supreme Court Rule 323(c). Merle Harp’s affidavit does not meet the statutory requirements. For these reasons, we must presume the trial court ruled correctly in rejecting defendant’s argument on this issue when ruling on the post-trial motion.

The fifth issue on appeal raises a claim of ineffective assistance of counsel. Defendant argues trial counsel’s performance fell below an objective level of reasonableness and, had counsel acted reasonably, the outcome of the trial would have been different. First, defendant claims trial counsel allowed the prosecutor, who was not qualified as an expert, to testify during his opening statement to rape statistics and acquaintance rape. However, both the judge and the prosecutor explained to the jury that opening statements were not to be treated as evidence. Next defendant cites trial counsel’s failure to raise the victim’s lack of memory of penetration in his motions for directed verdict and in the post-trial motion as evidence of ineffective assistance. We reject this claim as defendant admitted having intercourse with the victim. Finally, defendant claims he was denied effective assistance of counsel because trial counsel failed to object to Carr’s rape-trauma-syndrome testimony. The State maintains that even if trial counsel had objected and succeeded in keeping out the expert testimony, defendant would have been convicted, because evidence of his guilt was overwhelming.

“Under the standard announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005, and People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, a defendant claiming ineffective assistance of counsel must show (1) that counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that but for counsel’s errors the outcome of the proceeding would have been different. (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In examining counsel’s performance, the inquiry is whether counsel’s assistance was reasonable in the light of all the circumstances. (466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) In this regard, a reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and avoid interfering with the constitutionally protected independence of counsel or restricting the wide latitude counsel have in making tactical decisions. (466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; People v. Barnard (1984), 104 Ill. 2d 218, 233, 470 N.E.2d 1005, 1010.) In other words, the adequacy of counsel’s performance is to be determined on the basis of the totality of his conduct at trial rather than on isolated events or acts (People v. Rangel (1987), 163 Ill. App. 3d 730, 516 N.E.2d 936), since a defendant is entitled to competent, not perfect, representation (People v. Schmidt (1988), 168 Ill. App. 3d 873, 522 N.E.2d 1317). The Strickland court also stated that ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies’ but, rather, may dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069-70; People v. Albanese (1984), 104 Ill. 2d 504, 527, 473 N.E.2d 1246, 1256), an allegation of which must be based on more than mere conjecture or second-guessing of counsel’s trial strategy or tactics (People v. Rangel, 163 Ill. App. 3d 730, 516 N.E.2d 936), or speculation that the outcome might have been different with representation of higher caliber (People v. Schmidt, 168 Ill. App. 3d 873, 522 N.E.2d 1317.)” People v. Colley (1988), 173 Ill. App. 3d 798, 809-10, 528 N.E.2d 223, 231.

See also People v. Enoch (1988), 122 Ill. 2d 176, 201-02, 522 N.E.2d 1124, 1137, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Based on the totality of trial counsel’s conduct, it seems the defendant received competent, though not perfect, representation. Any errors by trial counsel did not prejudice defendant, and, thus, the Strickland test for ineffective assistance of counsel has not been met. We need not consider whether counsel’s performance was deficient.

The sixth issue defendant raises asks whether the trial court erred in denying defendant’s motions for directed verdict. The seventh and final issue is whether there was sufficient evidence on which the jury could find defendant guilty beyond a reasonable doubt. Defendant’s brief fails to address both of these issues. “Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (107 Ill. 2d R. 341(e)(7).) Defendant has thus waived these issues. On the merits, having reviewed the record, sufficient evidence was presented to survive the motion for directed verdict. In determining whether the evidence is sufficient to establish a defendant’s guilt beyond a reasonable doubt, the pertinent inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the evidence establishes the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Col lins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The State proved all elements of the crime charged beyond a reasonable doubt. Defendant’s conviction is affirmed.

Affirmed.

LUND and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES L. TUCKER, Defendant-Appellant.
    Fourth District
    No. 4—89—0337
    Opinion filed January 25, 1990.

      Robert M. Travers, of Fellheimer, Travers, Luckman & Engelman, Ltd., of Pontiac, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (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 SPITZ

delivered the opinion of the court:

Defendant was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. QSUa, par. 11 — 501), and with disobeying a traffic control device (Ill. Rev. Stat. 1987, ch. 95^2, par. 11 — 305(a)). After a jury trial, defendant was convicted on both charges. However, the trial court granted defendant a new trial for the traffic control device charge. Defendant appeals his conviction for DUI.

During jury selection, Theresa Stadel was interviewed and indicated that she was familiar with defendant, as they both resided in the same small town. However, Stadel indicated there was nothing about her knowledge of defendant that would affect her impartiality as a juror. Neither the State nor defendant’s attorney questioned Stadel about her knowledge of defendant, or objected to her presence on the jury. Stadel was subsequently chosen as a juror in defendant’s trial.

At trial, the arresting officer, Trooper Eddie Betts, described defendant’s driving on the night in question and how defendant appeared when pulled over. According to Trooper Betts, defendant’s driving was erratic and, when pulled over, defendant had trouble producing his license and standing up. The testimony continued:

“Q. *** Based on the results of your observation in the field sobriety tests, did you then make a decision?
A. Yes, sir; I did.
Q. And what was that?
A. I felt that the defendant was under the influence of intoxicating liquor.”

Next to testify was Trooper Marcus Lucas. Lucas observed defendant at the station house and testified that he could smell the strong odor of alcohol on defendant’s breath. Lucas further testified that defendant’s speech was slurred and that he refused to take the breathalyzer test.

Sandra Tucker (defendant’s wife), John Schrof, and Judy Fansler also testified. These witnesses each stated they saw defendant on the night in question and that he did not appear to be under the influence of alcohol.

Testimony was also presented by Dr. Homer Parkhill to the effect that, taking into account defendant’s size and the amount he supposedly drank on the night in question, defendant probably was not under the influence of alcohol.

Finally, defendant testified. Defendant stated the number of drinks he had and at what times he had them. Defendant further described the circumstances of his arrest, his conversations with the arresting officer and the administration of field sobriety tests. At this point in the testimony, defendant’s attorney asked the following question in the presence of the jury:

“Q. Were you under the influence of alcohol at the time that you were driving a vehicle? I’m not going to ask you about at the time of these tests, but at the time you were driving the vehicle?
A. No.”

The State objected to the question, claiming no foundation. The court sustained the objection and instructed the jury to disregard the response.

The case went to the jury and, over defendant’s objection, the trial court gave People’s instruction No. 9, the approved IPI issues instruction on DUI. (See Illinois Pattern Jury Instructions, Criminal, No. 23.04, at 529 (2d ed. 1981) (IPI Criminal 2d No. 23.04).) The People’s instruction No. 9 stated in pertinent part:

“To sustain the charge of driving under the influence of alcohol, the State must prove the following propositions: First: that the defendant drove a vehicle; and second: that the defendant then was under the influence of the alcohol.” (Emphasis added.)

Defendant’s instruction No. 3, which was tendered and refused, stated in pertinent part:

“To sustain the charge of driving under the influence of alcohol, the State must prove the following propositions:
First: that the defendant drove a vehicle, and second: that at the time the defendant drove the vehicle, the defendant was under the influence of alcohol.”

See IPI Criminal 2d No. 23.04, at 272 (Supp. 1989).

Defendant was convicted and sentenced to 12 months’ conditional discharge, with conditions including a $400 fine plus court costs, four weekends of homebound detention, no admittance into any establishment whose primary purpose is the sale of alcohol by the glass, and treatment as recommended by the Court Services office.

After the trial, Staddel stated to defendant’s lawyer’s secretary that it was a shame the jury had to convict defendant, but in light of his priors they had to. This statement was part of defendant’s post-trial motion for a new hearing. The trial court denied the motion.

Defendant raises three issues on appeal: (1) improper jury instructions; (2) trial court error in sustaining the State’s objection to the question concerning defendant’s intoxication; and (3) improper juror conduct. Defendant first argues that the trial court erred when it tendered the People’s instruction No. 9 to the jury. Defendant believes this was error for two reasons: (1) by giving People’s instruction No. 9, the court in effect gave a non-IPI instruction to the jury; and (2) the instruction itself was ambiguous. We disagree.

Defendant’s first contention in regard to the jury instructions is that the trial court gave a non-IPI jury instruction in violation of Illinois Supreme Court rules. Supreme Court Rule 451(a) states that IPI criminal instructions shall be used in criminal cases unless they do not accurately reflect the law. (107 Ill. 2d R. 451(a).) Defendant argues that because defendant’s instruction No. 3 is a more recent version of the People’s instruction No. 9, the jury received an outdated, non-IPI instruction. There are two errors in defendant’s argument.

Defendant labeled his instruction “I.P.I. Criminal 2d 1988, 23.04 Modified.” The trial was conducted in November 1988. Defendant’s instruction is not included in the 1987 supplement to the IPI criminal instructions (see IPI Criminal 2d (Supp. 1987)), but does appear in the 1989 supplement (see IPI Criminal 2d No. 23.04, at 272 (Supp. 1989)). There was no 1988 supplement and thus no “I.P.I. Criminal 2d 1988, 23.04 Modified.” New instructions are often circulated in advance to acquaint the judiciary and legal profession with upcoming changes. Thus, the People’s instruction No. 9 was not an outdated version of the DUI instruction at the time of defendant’s trial.

Defendant’s argument also fails simply because there are no effective dates for IPI instructions such as there are for statutes. While we believe that Supreme Court Rule 451(a) (107 Ill. 2d R. 451(a)) requires a trial court to use the latest version of a particular IPI instruction that may be applicable, use by a trial court of an earlier IPI version of that same instruction is not reversible error as long as the earlier version still correctly states the law. Drafting instructions is somewhat of an art, and changes in IPI instructions may be brought about because the committee believes a new version of an instruction is clearer or better stated. Yet the earlier version may still have been a correct statement of the law. In this analysis, we have taken into consideration the recent article by the chairman of the committee, stating his personal views. See Haddad, The 1989 Supplement to the IPI Criminal: An Overview, 77 Ill. B.J. 762 (1989).

Defendant’s next contention concerning the instruction given is that it was ambiguous. The Illinois Supreme Court has held that an instruction may not be given if it misleads the jury. (Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 392 N.E.2d 70.) Illinois pattern jury instructions must not be constructed so as to confuse or mislead the jury. (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692.) Even if an instruction correctly states the law, it may not be given if it misleads the jury. (Graves, 56 Ill. App. 3d at 879, 371 N.E.2d at 762.) However, even though it is improper for a court to instruct the jury in a confusing or misleading manner, if a commonsense interpretation of the challenged instruction would not be misleading or confusing, it may be said that the jury was fairly and comprehensibly informed on that issue. Silverman v. General Motors Corp. (1981), 99 Ill. App. 3d 593, 425 N.E.2d 1099.

IPI Criminal 2d No. 23.04, as submitted by the State, contains the following proposition: “That the defendant then was under the influence of alcohol.” However, IPI Criminal 2d No. 23.04 reworded this proposition to read, “that at the time the defendant drove the vehicle, the defendant was under the influence of alcohol.” Defendant objects to the language “that the defendant then was under the influence of alcohol.” (Emphasis added.) Defendant argues that this language is ambiguous because the word “then” can have two meanings: (1) after, later; and (2) at that time. To find that defendant was driving under the influence, the State must prove that defendant drove a motor vehicle at the time he was intoxicated. People v. Williams (1972), 3 Ill. App. 3d 1036, 279 N.E.2d 735.

Defendant argues that the State’s instruction would allow the jury to enter a finding of guilt even if it concluded that defendant did not drive while intoxicated. Defendant claims that the jury might have convicted him because it found him to be intoxicated at the time the field sobriety tests were given, or at the time the warning to motorist was read to him at the station house, even if it concluded that defendant was not intoxicated at the time he drove. We disagree. Defendant was charged with DUI, not with being intoxicated sometime after he was driving. The jury was aware of this. Trooper Betts testified that defendant’s driving was erratic and, when pulled over, defendant had trouble producing his license and standing up. Moreover, a version of IPI Criminal 2d No. 23.03, the DUI definition instruction, was also given. The instruction provided: “A person commits the offense of driving while under the influence of alcohol when he drives the vehicle while under the influence of alcohol.” (IPI Criminal 2d No. 23.03, at 528.) A commonsense interpretation of the instruction is not confusing or misleading and leads us to conclude that the jury was fairly and comprehensibly instructed on the issue.

Defendant next argues that his constitutional and statutory rights to testify in his own defense were violated. The court sustained an objection by the State to the following question in the presence of the jury:

“Q. [By defense counsel:] Were you under the influence of alcohol at the time that you were driving the vehicle? I am not going to ask you about at the time of these tests, but at the time you were driving thevehicle?
A. [Defendant]: No.
[Prosecutor]: Objection, without foundation.
THE COURT: Sustained. The response is stricken, and the jury is instructed to disregard the response.”

Defendant argues that the prosecution failed to state the item of foundation lacking and that the court’s ruling prejudiced defendant by denying him his statutory and constitutional right to testify. A defendant in a criminal action has a statutory and constitutional right to testify in his own defense. (Ill. Rev. Stat. 1987, ch. 38, par. 155 — 1; People v. Knox (1978), 58 Ill. App. 3d 761, 374 N.E.2d 957; Ill. Const. 1970, art. I, §8.) Defendant claims he was denied the only opportunity to refute the arresting officer’s testimony and that the court’s denial of this testimony critically injured him by destroying any opportunity he may have had to convince the jury of the truthfulness of his testimony.

We agree that the trial court erred when it sustained the State’s objection to this question. A witness may testify directly to his own mental state. (People v. Weil (1910), 244 Ill. 176, 91 N.E. 112.) We believe this applies to testifying about one’s sobriety or lack thereof. However, we find the error to be harmless. Defendant answered questions that provided the same information as the stricken response. Defendant testified that he had no problem making a turn out of the bar; he did not stop and stall across two middle lanes; he neither stumbled nor walked unsteadily for his field sobriety tests; he had no difficulty driving his car when he left the bar’s parking lot; he was not staggering; and denied that he could not hold his leg up for even one second. Defendant also answered three questions that were directly substituted for the question objected to. These three were:

“Q. [By defense counsel:] Were you having any difficulty driving that vehicle to the point that the trooper stopped you?
A. [Defendant:] No.
Q. Had you violated any laws, any traffic laws up to the time that the trooper had stopped you?
A. I didn’t think I had.
Q. Were you ever charged with improper lane usage, reckless driving, having your headlights off, driving in the wrong lane?
A. No.”

It appears that these three questions were directly and narrowly directed at defendant’s driving ability up to the time the trooper stopped him. Therefore we cannot say that defendant’s right to testify was violated.

Defendant also argues that the court’s decision to sustain the objection to the question denied him effective assistance of counsel. This argument is without merit. For a denial of effective assistance of counsel claim, defendant must show that the deficient performance of counsel prejudiced the defense. This means defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Defendant cannot show that he would have prevailed if allowed to answer the question presented.

Defendant finally argues that improper juror conduct requires reversal and a new trial. Defendant claims that Theresa Stadel, a juror in defendant’s trial, harbored doubt as to her fairness and impartiality because she knew that defendant had been arrested or convicted for DUI on prior occasions. Defendant further asserts that evidence shows Stadel may have shared this information with other members of the jury.

Every person charged with a crime is entitled to a speedy public trial by an impartial jury. (U.S. Const., amend. VI.) To be qualified, a juror must come into a trial with a mind uncommitted on the question of guilt or innocence of the defendant and prepared to weigh the evidence impartially. (People v. Cravens (1941), 375 Ill. 495, 31 N.E.2d 938.) If the existence of certain facts has been established in his mind, touching the guilt or innocence of the accused, to the extent of producing a conviction, he is disqualified, for neither party to the proceeding should be required to adduce proof to remove a preconceived opinion. Such would result in the trial before a juror who had prejudged the case. (Cravens, 375 Ill. at 497, 31 N.E.2d at 939.) However, mere suspicion of bias or partiality is not sufficient to disqualify a juror. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The test used in such cases is whether the conduct involved such a probability that prejudice would result so that due process would be deemed inherently lacking. (People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656.) Not every instance in which extraneous or unauthorized information reaches the jury results in error so prejudicial as to require reversal. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656.

In the present case, Stadel stated to defendant’s lawyer’s secretary that it was a shame that the jury had to convict defendant, but in light of his prior convictions, they had to. Defendant included this statement in his post-trial motion for a new trial. Six jurors, including Stadel, were subpoenaed to testify at the hearing.

Attempts to impeach jury verdicts fall into two broad categories. The first category includes attempts to prove by a juror’s testimony or affidavit the motive, method or process by which the jury reached its verdict. These are generally inadmissible in most jurisdictions. (Holmes, 69 Ill. 2d at 511-16, 372 N.E.2d at 658-60.) The second category includes situations in which the testimony or affidavit of a juror is offered as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors’ deliberations or mental processes. In Illinois, this second category may be used to impeach a jury verdict. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656.

We first look at defendant’s argument that the jury received improper information. Defendant cites a juror’s written statement responding to an inquiry from defendant’s counsel. The statement revealed that several members of the jury speculated that defendant could have had previous convictions. Defendant argues that this speculation, along with Stadel’s knowledge of defendant’s prior arrests or convictions, shows that Stadel shared her knowledge with the jury and that the jury was not impartial.

We believe the jury was impartial. Stadel testified, and the five other jurors subpoenaed confirmed, that she did not share her knowledge of defendant with the rest of the jury. The five other jurors also testified that they had no knowledge of any prior arrests or convictions of defendant for DUI when they convicted him. The record does not support the argument that Stadel informed the members of the jury of defendant’s past history of DUI.

We next turn to defendant’s argument that Stadel was not an impartial juror because she thought defendant had prior convictions for DUI. Defendant cites People v. Ortiz (1926), 320 Ill. 205, 150 N.E. 708, in demanding a reversal and new trial. Ortiz is an extreme example of juror partiality in which one of the jurors stated, before a murder trial: “ ‘[T]hey better not take me on that jury or I will hang that Mexican ***.’ ” (Ortiz, 320 Ill. at 212, 150 N.E. at 712.) The Ortiz court had no choice but to reverse and remand for a new trial because the juror misled the court by concealing his partiality during jury selection. Defendant claims that because Stadel knew defendant had been previously arrested or convicted for DUI, she was not impartial.

Stadel knew only that defendant had some prior arrests or convictions that might have been alcohol related. During jury selection, Stadel indicated that she knew nothing that would affect her impartiality as a juror. Defendant’s counsel was aware that Stadel was familiar with defendant, and lived in the same small town, but neither questioned her about such knowledge, nor objected to her presence on the jury. At the post-trial motion hearing Stadel once again indicated that her knowledge of defendant in no way affected her impartiality. The court in Holmes said it would not hold that every instance of extraneous or unauthorized information reaching the jury results in error so prejudicial as to require reversal. We conclude that Stadel’s knowledge of defendant’s prior arrests or convictions did not rise to the level of a due process violation. Defendant’s argument is little more than speculation.

Defendant's efforts to show Stadel was in fact influenced by her knowledge of defendant’s prior convictions attempt to impeach a juror’s mental process in reaching a verdict and as such will not be allowed. For the foregoing reasons, the judgment is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.