text:
    WILLIAM E. RINEY et al., Plaintiffs-Appellants, v. WEISS AND NEUMAN SHOE COMPANY, Defendant-Appellee.
    Fourth District
    No. 4 — 90—0652
    Opinion filed August 6, 1991.

      A. Clay Cox and James P. Ginskey, both of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellants.

      Stephen Novack and Karen L. Levine, both of Novack & Macey, of Chicago, and Robert S. White, of Costigan & Wollrab, EC., of Bloomington, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiffs appeal from a trial court’s order granting defendant summary judgment in this suit for conversion. We affirm.

Plaintiffs in this matter are former shareholders of the Susan Lee Corporation (SLC). Plaintiff William Riney owned 50% of the SLC stock, and plaintiffs Deborah Campbell and Paula Woolen each owned 25% of the stock. SLC was the sole owner of Roland’s of Blooming-ton, Inc. (Roland’s), which operated retail clothing stores in Champaign and Bloomington, Illinois.

On November 7, 1986, L&L Acquisitions, Inc. (L&L), purchased all shares of SLC stock from plaintiffs for $700,000. At the time of the sale, Roland’s was indebted to the State Bank of Lincoln (Lincoln) on two promissory notes in the amounts of $200,000 and $400,000 (Lincoln notes). To secure these notes, Lincoln held a security interest in the following assets of Roland’s:

“[Ajccounts receivable, inventory, equipment, leasehold improvements, documents, instruments, furniture, fixtures, money, chattel paper, consumer goods and general intangibles together with the proceeds of all such property and accessions thereto; and specifically including but not limited to goodwill and contract rights.”

Lincoln perfected this security interest by filing a financing statement as required by section 9 — 302 of the Uniform Commercial Code — Secured Transactions (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 302).

The stock purchase agreement between L&L and plaintiffs provided that L&L would pay $300,000 in cash at closing, and finance $400,000 in the form of three promissory notes: a note to Riney for $200,000, and a note each to Campbell and Woolen for $100,000. To secure these three notes, plaintiffs took a second security interest in:

“All inventory, stock-in-trade, trade fixtures, furniture of debtor’s stores known as ‘Roland’s’ at two locations: Eastland Mall, E. Empire, Bloomington, McLean County, Illinois, and Market Place Mall, North Neil Street, Champaign, Champaign County, Illinois.”

L&L filed a financing statement for this security interest.

Lincoln consented to L&L’s purchase of the SLC stock on certain conditions. First, Lincoln’s security interest in Roland’s assets was re-tamed and kept of record. Next, Riney was required to personally sign the two Lincoln notes as an additional obligor. Finally, all plaintiffs were required to pledge the $300,000 cash payment from L&L as additional collateral for the $400,000 Lincoln note.

The UCC security agreement between L&L and plaintiffs contained the following language:

“7. That DEBTOR will not sell or otherwise transfer the Collateral or any interest therein and will not permit any other lien or security interest to be attached thereto without the written consent of the SECURED PARTY.” (Emphasis added.)

The stock purchase agreement between L&L and plaintiffs, executed the same day as the security agreement, included an addendum containing the following language:

“1. L&L Acquisitions, Inc., nor any representative on its behalf, shall remove any money or other asset from Roland’s of Bloomington, Inc. or the Susan Lee Corporation, nor shall any successor to those corporate entities remove any money or asset from the retail stores operated by those corporations at Bloomington and Champaign except to meet payroll obligations, other day-to-day operating expenses of those two stores, accounts payable for those two stores, or existing debt to State Bank of Lincoln.
* * *
4. Subject only to the payroll obligations *** the undersigned agree that the primary obligation of Roland’s of Bloomington, Inc. shall be the payment of outstanding promissory notes held by State Bank of Lincoln.” (Emphasis added.)

Representatives of L&L, Riney as chairman of the board of SLC, and all plaintiffs individually, signed this addendum. Although a representative of Lincoln was present at this closing, no representative of Lincoln signed the addendum.

On December 23, 1986, Roland’s leased its shoe department and sold its entire shoe inventory and certain fixtures to defendant. The agreement provided that defendant would pay 30% of the retail value of the shoes, plus an amount for the fixtures. In addition to this, defendant would pay Roland’s 11% of its net shoe sales, and advertise and modernize the shoe department. Roland’s applied the $62,950.40 payment from the sale of the shoe department to the Lincoln notes.

On September 2, 1987, plaintiffs and Lincoln filed their initial complaint against defendant for conversion, asserting that the sale to defendant violated their security agreements. Roland’s had gone into bankruptcy. On November 7, 1989, Lincoln withdrew from the case after the Lincoln notes were paid during the bankruptcy proceeding. Plaintiffs filed a motion for summary judgment, which was denied, and later filed a second motion for summary judgment. Defendant thereafter filed its motion for summary judgment.

On May 2, 1990, a hearing was held on the motions for summary judgment, during which the trial court denied plaintiffs’ motion, granted defendant’s, and entered final judgment in favor of defendant. The trial court granted defendant’s motion on the ground that the sale was authorized by the language of the addendum, which permitted sales of the collateral as long as the proceeds were used to make payment on the Lincoln notes.

On May 31, 1990, plaintiffs filed a motion for reconsideration of the trial court’s ruling. Plaintiffs argued for the first time that the parties did not intend the addendum to authorize Roland’s to sell an entire department as long as the money was used to retire the Lincoln notes, and that the addendum was ambiguous as such. Attached to plaintiffs’ motion were three affidavits never before submitted to the trial court. These affidavits were from Riney; Terry Brown, the president of Lincoln; and Donald Wilcox, the attorney who drafted the addendum and security agreements for plaintiffs. The substance of these affidavits was that the parties did not intend the addendum to authorize the sale of the shoe department. Plaintiffs also attached deposition testimony on which they had not previously relied. The deposition testimony consisted of plaintiffs’ assertions that they were unaware of the sale of the shoe department until after it had occurred, and the statement of Steven Lewark, secretary and treasurer of L&L, that he read the secured promissory note given by L&L to plaintiffs, and saw that it contained a reference to the security agreement.

Defendant filed a motion to strike plaintiffs’ motion, and argued that the affidavits and deposition testimony had been available but not offered or relied upon by plaintiffs in connection with the motions for summary judgment. Defendant also argued that plaintiffs’ argument concerning the ambiguity of the addendum had not been argued in their previous motion for summary judgment.

On August 24, 1990, a hearing was held on plaintiffs’ motion for reconsideration. The trial court denied defendant’s motion to strike and considered plaintiffs’ affidavits, deposition testimony, and argument that the addendum was ambiguous. However, the court denied plaintiffs’ motion and stated:

“Here, in my opinion, this Paragraph One [of the Addendum] is very, very crystal clear on its face *** and to me there is no ambiguity in this paragraph one at all. It is very clear to me that they [Roland’s] can sell these things [the Merchandise] as long as the money went to the Bank, and it went to the Bank, so the Plaintiffs in this case did not have their interest, their secured interest under these agreements violated by the Defendant ***.”

Plaintiffs subsequently filed this appeal, in which they ask this court to vacate or reverse the summary judgment entered by the trial court and grant any and all relief to which they may be entitled on appeal.

Plaintiffs’ claim is for conversion of collateral. Section 9— 306(2) of the UCC, as adopted in Illinois, provides:

“Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” (Ill. Rev. Stat. 1989, ch. 26, par. 9-306(2).)

Where a debtor makes an unauthorized disposition of collateral which is subject to a security interest, the security interest continues in the original collateral while in the possession of the purchasor or transferee. The secured party may thus repossess the collateral from the purchasor or transferee in an action for conversion. Hills Bank & Trust Co. v. Arnold Cattle Co. (1974), 22 Ill. App. 3d 138, 140, 316 N.E.2d 669, 671.

The trial court held, in granting summary judgment, that the addendum was clear and unambiguous, and was the written consent required by the security agreement to sell the collateral. Summary judgment may only be granted where the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842, 546 N.E.2d 77, 83.

Plaintiffs argue on appeal that ambiguities exist in the addendum, both on its face and after considering extrinsic evidence. We find, however, that plaintiffs have waived this argument for review. Plaintiffs first argue that the word “remove” in the addendum is ambiguous. Plaintiffs failed to present this argument to the trial court at any time, even in their motion for reconsideration. This argument is thus waived for review, as issues not raised in the trial court are generally waived on appeal. (Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 128, 532 N.E.2d 1128, 1136.) Additionally, plaintiffs argued during the hearing on the motions for summary judgment that the addendum was clear and straightforward.

Plaintiffs also argue that the addendum is in conflict with the security agreement and other extrinsic evidence. This argument has also been waived as plaintiffs failed to submit the argument to the trial court until the motion for reconsideration. The purpose of motions for reconsideration of the entry of summary judgment is not “to excuse [a] failure to present” previously available evidence or issues which were not brought to the court’s attention prior to the challenged ruling. (Gliwa v. Washington Polish Loan & Building Association (1941), 310 Ill. App. 465, 478, 34 N.E.2d 736, 743.) The Gliwa court explained that “[i]t is not intended [that] cases should be heard piecemeal under this [summary judgment] procedure.” (Gliwa, 310 Ill. App. at 478, 34 N.E.2d at 743.) Moreover, courts agree that new material should not be considered and a summary judgment order ought not be vacated where “the material had been available prior to the filing of the [summary judgment] motion and the subsequent issuance of the order.” Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 232, 450 N.E.2d 756, 759; accord Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 934, 521 N.E.2d 1177, 1182.

Plaintiffs had ample opportunity to submit this argument to the trial court, and all the evidence submitted with their motion for reconsideration was available at the time of the motion for summary judgment. Plaintiffs instead chose to argue in their motion for summary judgment that the addendum was clear and straightforward, and intentionally chose not to address defendant’s argument that the proceeds of the sale were used to make payment on the Lincoln notes.

We further note that the trial court was correct in its ruling. The primary object of the construction of a contract is to give effect to the intention of the parties. The intention of the parties is not to be determined from detached portions of a contract or from any clause or provision standing by itself. Instead, the contract is to be construed as a whole. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283, 154 N.E.2d 683.) The Martindell court further stated:

“In general, the intention of the parties is to be determined from the final agreement executed by them, rather than from preliminary negotiations and agreements [citation] but previous agreements, negotiations and circumstances may be considered in determining the meaning of specific words and clauses. [Citations.] Similarly, under well recognized exceptions to the [parol] evidence rule, extrinsic evidence is admissible to show the meaning of words used in a contract where there is an ambiguity, or when the language is susceptible of more than one meaning.” Martindell, 15 Ill. 2d at 283-84,154 N.E.2d at 689.

Plaintiffs argue here that a court may look to parol or extrinsic evidence provisionally to determine whether an ambiguity exists in the writing. (Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 359 N.E.2d 745; Keep Productions, Inc. v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 364 N.E.2d 939; see also Design Studio International, Inc. v. Chicago Title & Trust Co. (1989), 185 Ill. App. 3d 797, 541 N.E.2d 1166.) Defendant disagrees and argues that parol evidence may not be considered in construing a contract unless the contract is ambiguous. If the contract is clear and unambiguous, defendant argues, the parties’ intent must be determined from the plain language of the contract. Tishman Midwest Management Corp. v. Wayne Jarvis, Ltd. (1986), 146 IllIll. App. 3d 684, 689, 500 N.E.2d 431, 434.

This court has accepted the reasoning of Baird & Warner and Keep Productions. (See URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295; Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 561 N.E.2d 264.) In URS Corp., this court held that the question of ambiguity is one of law to be determined by the court. (URS Corp., 101 Ill. App. 3d at 233, 427 N.E.2d at 1299.) Then, noting that there was a split of authority on the issue of whether extrinsic evidence may be used to determine whether an ambiguity exists in a writing, this court stated:

“The ‘four comers’ test represents a mechanical approach to a difficult problem and possesses two flaws in that it assumes a precision of language which cannot exist and further that it places a trial judge in the uncomfortable position of determining the true intent of the parties in a transaction to which he is far removed both in time and circumstance.” (URS Corp., 101 Ill. App. 3d at 234, 427 N.E.2d at 1299.)

This court thus adopted the rule that parol or extrinsic evidence may be used by a court to determine whether an ambiguity exists in the contract:

“Such a rule will permit the trial judge to determine with greater certainty whether in fact an ambiguity does exist or whether the parties were at one in their understanding of the language used. If he does find ambiguity, then the usual rules of construction will obtain; if no ambiguity appears, or if it appears that a word or phrase has a fixed meaning either by law or by usage and custom, then the ‘four comers’ rule will be applied. In either event, the true intent of the parties will be better served.” URS Corp., 101 Ill. App. 3d at 235, 427 N.E.2d at 1300.

In the instant case, the trial court considered extrinsic evidence and concluded that no ambiguity existed in the addendum. We agree. A contract is ambiguous if its terms are capable of being understood in more than one sense because either an indefiniteness of expression or a double meaning is attached to them. (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 797, 461 N.E.2d 1031, 1034.) A provision is not rendered ambiguous simply because parties do not agree on its meaning. Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 458 N.E.2d 480.

Plaintiffs’ first argument, that the word “remove” in the addendum is ambiguous, is without merit. Plaintiffs argue that the security agreement prohibits any “sale” without written authorization, and that the addendum is not the required written authorization because it does not refer to “sale” of assets, but “removal.” Plaintiffs conclude that it is not clear that the parties intended the word “remove” to include a sale. This assertion is without merit for several reasons. First, plaintiffs admit in their brief that the word “remove” includes retail sales. Moreover, the addendum provides that assets could not be removed except to meet certain obligations, all of which require money to perform. Thus, the language necessarily includes a sale.

Next, plaintiffs argue extrinsic evidence reveals ambiguities in the addendum. We disagree. Plaintiffs first argue here that the security agreement provided there was to be no sale of the collateral. Roland’s, however, was a retail store which sold the collateral at retail. Plaintiffs argue that L&L would never have executed a security agreement that would prohibit it from performing the sole business of Roland’s, retail sales. Plaintiffs believe this raises an ambiguity.

In rejecting this argument, we note that plaintiffs ignore important language in the security agreement. The security agreement provides there shall be no sale of the collateral, except with plaintiffs’ written consent. The addendum provides that no assets shall be removed, except to meet certain obligations, one of which is payment on the Lincoln notes. There is no conflict here, as the addendum provides L&L -with the authorization to sell the collateral, as long as the proceeds were used to meet the obligations listed. Supporting this view is paragraph 4 of the addendum, which provides that the primary purpose of Roland’s was to pay off existing debt on the Lincoln notes.

Plaintiffs next argue that, at the time of closing, Lincoln held a security interest on the same collateral prohibiting the sale or transfer of the collateral without Lincoln’s written authority, yet Roland’s sold as a retail store. Moreover, Brown, the president of Lincoln, did not sign the addendum, and Lincoln never consented to the sale of the collateral to defendant. The fact that Lincoln held a security interest in the collateral and allowed retail sales is irrelevant, as Lincoln is not a party to this case. Lincoln was also not a party to the sale of the SLC stock to L&L. As such, it did not need to sign the addendum. Lincoln protected itself by requiring Riney to sign the Lincoln notes personally and to pledge the $300,000 down payment for the stock as collateral. Moreover, although Lincoln did not sign the addendum, it was present at the closing, and thereby implicitly gave its consent to the addendum. As such, this evidence is irrelevant.

Finally, plaintiffs argue that Wilcox stated in his affidavit that plaintiffs were concerned about “large-scale sales” of the assets pledged as security. Wilcox further stated:

“[He] recalled] conversations between and among [L&L], Mr. Riney, and Mr. Brown that none of the assets pledged as security by L&L Acquisitions, Inc.[,] and Rolands [sic] of Blooming-ton, Inc.[,] were to be sold or transferred except by normal day[-]to[-]day retail sales. That any sale outside of the normal day[-]to[-]day retail sales would necessarily have to have the signed written consent of [plaintiffs and Lincoln.]”

Wilcox also stated in his affidavit that the plaintiffs had concerns about how the proceeds from retail sales would be used. Thus, the addendum was drawn. Wilcox concluded in his affidavit that it was not the intent of the parties that the addendum would provide the written authorization for the sale to defendant.

Wilcox’s statement is entirely consistent with the trial court’s interpretation of the addendum, and raises no ambiguities. Wilcox notes that plaintiffs had two concerns: (1) proceeds from retail sales, which would not be applied to the Lincoln notes, and (2) large-scale sales of inventory, which were pledged as security for the Lincoln notes. To protect plaintiffs’ interests, the security agreement required written authorization for any sale, whether retail or large scale. Plaintiffs’ written consent was then provided by the addendum, which protected their interests by requiring the proceeds of any sale to be applied to certain obligations of Roland’s, one of which was the Lincoln notes. Moreover, it is irrelevant whether Lincoln gave written consent, as it is not a party to this case.

Plaintiffs’ entire argument is also without merit because, in arguing that an ambiguity exists, plaintiffs seek to add a new term to the contract, the limiting term “retail sales.” Even when language in a contract is ambiguous, extrinsic evidence may not be used to change or vary the agreement. Baird & Warner, 45 Ill. App. 3d at 229, 359 N.E.2d at 750.

Plaintiffs finally argue that there are factual disputes outside the security agreement and addendum which need to be resolved before the ambiguities in the documents can be construed. We, however, find no ambiguities in the documents, and thus need not respond to this argument. We conclude by noting that the contract was not ambiguous, and that the trial court was correct in finding no material issue of fact existed. Thus, summary judgment was appropriate. Accordingly, the trial court is affirmed for the reasons stated herein.

Affirmed.

LUND, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    MARTHA MOORE, Plaintiff-Appellee, v. GREG ROBERTS et al., Defendants (Greenup Cumberland County Fair Association, Defendant-Appellant).
    Fourth District
    No. 4 — 91—0128
    Opinion filed August 16, 1991.

      Randolph M. Rich, of Marshall, for appellant.
    Dale A. Cini, of Ryan, Cini, Bennett & Radloff, of Mattoon, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Martha Moore brought an action against various defendants for personal injuries she sustained at the Cumberland County Fair in 1985 when she was trampled by a horse which had broken through a draw gate and left the racetrack during a race. Default judgment was entered against defendants Holsapple, Thomas and Hutchison. Prior to trial, two other defendants, a jockey, Lindel Ray Wells, and a horse owner, Greg Roberts, reached a settlement with Moore. Thereafter, the trial proceeded with the one remaining defendant, the Cumberland County Fair Association (Association). Roberts and Wells testified at trial for Moore regarding the safety of the location of the draw gate. The jury returned a verdict in favor of Moore. The Association appeals, contending (1) the trial court erred in allowing these two witnesses to testify as experts since neither was previously disclosed as such pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220) and (2) the trial court erred in allowing Moore to amend count III, paragraph 5(a) of her complaint. We affirm.

Wells testified he has been a licensed thoroughbred racehorse jockey for 10 years and has raced in various parks including Fairmont Park in Collinsville, Illinois, Churchhill Downs in Kentucky, and Arlington Park in Arlington Heights, Illinois. He testified he has been around horses all of his life but has worked with them as an occupation since the age of 12. He testified he began racing horses at the age of 17 and he also has been a horse groom.

Wells testified he was hired by Roberts to ride a horse at the Cumberland County fair on August 22, 1985. Wells stated that as he made the final turn on the racetrack, the horse “[njever attempted to make the turn and went through the outside, hit the outside fence where the gate is.” Wells explained the horse headed for the draw gate, which leads to the barn area. He was knocked off his horse when the jockey on the horse to his right, who also had broken through the gate, bailed off his horse. Wells fell off his horse to the left, and watched his horse go to the left of the lemonade stand while the other horse went to the right of the lemonade stand. Finally, over objection by the Association, Wells testified, in his opinion, the draw gate was in an unsafe location because the horses see the gate when they make the final turn, know that is where they entered the racetrack and have a natural instinct to go back out where they came on the racetrack.

Roberts testified he has been involved with horses since he was a small child and he began raising horses as an occupation when he was 18 or 19 years old. He has raced horses all over the country and has visited many racetracks. He also has worked and trained horses for approximately 19 years and previously raced horses at the Cumberland County fairgrounds.

Roberts testified he was the owner of a horse named Arkie Rullah, which was entered into a race on August 22, 1985, at the Cumberland County Fair. Arkie Rullah was stabled at the fairgrounds in the stables which are located to the north and east of the oval racetrack. Roberts explained that the horses are led to the racetrack from the stables on a gravel road which ends at the draw gate located on the fourth turn of the racetrack. The draw gate is made of two pipes that are latched together in the center by a pin and U-shaped piece of metal. Roberts testified, over objection by the Association, based on his experiences as a thoroughbred horse owner and trainer and his knowledge of other racetracks, that the draw gate was in an unsafe location. Roberts opined the gate was in an unsafe location because it was on the corner near where the horses were stabled and the horses could see the stables and choose to go there instead of making the final turn.

On the fifth day of trial, after both sides had rested, Moore made an oral motion to file an amended count III to her complaint. This motion was to allow the pleadings to conform to the proofs. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(c).) The Association’s attorney objected to paragraph (d) of the amended count, which alleged the Association negligently and carelessly failed to post warning signs. After hearing argument, the trial court struck that paragraph from the pleading. At no time did the Association’s attorney object to paragraph (a) of the amended count III, which alleged the Association negligently and carelessly placed the draw gate in an unsafe location.

The jury returned a verdict in favor of Moore in the amount of $63,316.08. The Association filed a post-trial motion alleging, among other things, that the trial court erred in allowing Roberts and Wells to testify regarding the safety of the location of the draw gate. The Association also contended the trial court erred in allowing Moore to file the amended count III to her complaint. During the course of the argument, defense counsel stated he did not believe Roberts and Wells were retained as experts to testify for Moore. Moreover, upon inquiry from the court, defense counsel acknowledged he failed to object to paragraph 5(a) of the amended count III. The trial court denied the Association’s post-trial motion, finding (1) neither Roberts nor Wells was an expert retained for the purpose of testifying and, thus, there was no requirement to disclose the intention to call them pursuant to Supreme Court Rule 220; and (2) the Association could not claim error in the filing of the amended count III of the complaint because of its failure to object to that filing at the time of the oral motion. The Association filed its notice of appeal on February 8,1991.

Initially, Moore argues the Association has waived the issue regarding the testimony of Roberts and Wells because of the nature of the objection by the Association during their testimony. Moore contends the Association objected to the qualifications of the witnesses to testify rather than the fact that they were unable to testify because of a lack of disclosure as an expert under Supreme Court Rule 220.

To preserve an issue for appellate review, a party must make the appropriate objection at the trial court level or the issue will be waived. (Akers v. Atchison, Topeka & Santa Fe R.R. Co. (1989), 187 Ill. App. 3d 950, 543 N.E.2d 939.) When an objection is made, specific grounds must be stated and other grounds not stated are waived on appeal. Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 444 N.E.2d 220.

The Association first raised an objection to this testimony during the pretrial proceedings immediately prior to opening statements. The Association’s attorney made an oral motion in limine to prevent any testimony by the witnesses as to the design of the racetrack since there was no disclosure of any experts retained to testify at trial. Moore’s attorney responded that the two witnesses were not Rule 220 experts, were not retained for the purpose of testifying at trial, and both had been deposed and answered interrogatories. Therefore, their testimony was well known. The Association’s attorney again objected to this testimony because he believed the witnesses were unqualified to give an opinion as to the design defect in the racetrack. The trial court noted that laypersons are allowed to testify as to matters which are within their knowledge, and the nature and extent of their experience is a matter of credibility. The trial court stated it would allow Moore to lay a foundation to determine if the witnesses were able to testify and reserved ruling on this issue until it heard the testimony of the witnesses.

After Roberts was asked whether he had an opinion as to the location of the draw gate, the Association’s attorney objected. The basis of this objection was that the witness was not a design expert but was asked to give an opinion as to the design of the racetrack. The Association’s attorney stated:

“We are asking for an expert opinion as to design of a raceway much as we would be asking an expert opinion to the design of a highway where we have an accident on a curve. And we don’t have — he is not an engineer, not an architect. He is an owner of a horse, and they have lack of foundation and he is not qualified to give such an opinion.”

The court allowed the testimony, stating that the witness was able to give his opinion because of his experience around racetracks. The trial court noted that an engineer or a racetrack designer might have more credibility but that the witness was able to offer his opinion.

The Association’s attorney also objected to Wells giving his opinion as to the location of the draw gate. He alleged that Wells had more experience around large racetracks, which would be substantially different than those at a small county fair and, thus, he was unqualified to give an opinion. Moore’s attorney stated this witness had the same qualifications as Roberts except that he had more riding experience and therefore was qualified to give the opinion. The trial court allowed the witness to answer, stating the position taken by the attorneys went to the weight of the evidence.

The evidence suggests the Association made timely and proper objections. First, at the time of the motion in limine, Supreme Court Rule 220 was specifically mentioned. With respect to Roberts, although not specifically citing the rule, the Association’s attorney essentially argued Roberts was not an expert and could not give this opinion, the inferences being (1) Roberts was not qualified as an expert in design engineering and (2) Roberts was not disclosed as an expert pursuant to Supreme Court Rule 220. With respect to Wells, it is less clear that the Rule 220 issue was not waived because the only objection was based on the foundation of his experience — for example, that he only raced at large racetracks. Nevertheless, given the discussion below and the conclusion reached, we need not decide the waiver issue.

The Association contends these two witnesses gave expert testimony as to the safety of the location of the draw gate and they were never disclosed as experts pursuant to Supreme Court Rule 220. Inasmuch, the Association alleges the trial court erred in allowing their testimony. Moore contends neither Roberts nor Wells was an expert within the meaning of the rule since they were not retained to render an opinion on behalf of a party.

Supreme Court Rule 220(a)(1) defines an expert as “a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial.” (134 Ill. 2d R. 220(a)(1).) Rule 220(b)(1) provides: “In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed ***.” (134 Ill. 2d R. 220(b)(1).) Supreme Court Rule 220 was designed to facilitate trial preparation and the evaluation of claims by eliminating the last-minute disclosure of experts. Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 238, 529 N.E.2d 525, 530.

This court recently addressed a similar issue in Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51. There, Smith was injured when he slipped on some ice and fell down a flight of stairs at the Newton Power Plant. Sargent and Lundy Architects (Sargent), an architectural and engineering firm, was named as a defendant. Sargent called its project manager at the Newton Power Plant to testify on its behalf. William Loftus was a licensed engineer and employee of Sargent for over 20 years. Over objection, Loftus testified that in his opinion, the gallery system (a system of catwalks and stairways which included the stairway from which Smith fell) was designed in the safest manner and complied with all professional standards. Smith argued this testimony was improper because Loftus was never disclosed as an expert witness pursuant to Rule 220.

This court disagreed with Smith and held “a party, or an employee of a party, who is intimately involved in the subject matter of the litigation need not be disclosed as an expert witness pursuant to Rule 220(b)(1).” (Smith, 176 Ill. App. 3d at 495, 531 N.E.2d at 59.) This conclusion was based on three rationales derived from the supreme court’s decision in Tzystuck. There, the supreme court held a treating physician is not an expert witness within the meaning of Rule 220. Tzystuck, 124 Ill. 2d at 233-35, 529 N.E.2d at 528-29.

The supreme court gave three reasons for reaching this conclusion. First, the court stated a treating physician is consulted and obtains his opinion in giving aid to the patient and not for purposes of preparing for litigation. (Tzystuck, 124 Ill. 2d at 234, 529 N.E.2d at 528.) Moreover, a treating physician’s identity is discoverable under Supreme Court Rule 201(b)(1) (134 Ill. 2d R. 201(b)(1)) and there is little threat of being surprised at the identity of a treating physician. Tzystuck, 124 Ill. 2d at 238, 529 N.E.2d at 530.

In Tzystuck, the court stated:

“Treating physicians, on the other hand, typically are not ‘retained to render an opinion at trial’ but are consulted, whether or not litigation is pending or contemplated, to treat a patient’s physical or mental problem. *** [T]he opinions of treating physicians are similar to those of occurrence witnesses who testify, not because they were retained in the expectation they might develop and give a particular opinion on a disputed issue at trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation.” Tzystuck, 124 Ill. 2d at 234-35, 529 N.E.2d at 528-29.

This court found these principles to be equally applicable to the Smith case. First, Loftus was known to Smith as an engineer long before the trial because of his position at the power plant. Smith was not surprised that Loftus testified, but rather that he gave an expert opinion at trial. Moreover, Loftus was not retained as an expert for litigation. Loftus was intimately involved in the project as an occurrence witness long before any litigation was contemplated. Thus, this court concluded Loftus did not have to be disclosed as an expert witness pursuant to Rule 220. Smith, 176 Ill. App. 3d at 495, 531 N.E.2d at 59.

Roberts and Wells had a unique status in this case in that they were both parties and occurrence witnesses at one point in the proceedings. It was on the third day of the trial, during jury selection that, pursuant to the settlement agreement, they ceased to be parties. However, they still retained their status as occurrence witnesses. Thus, as parties, pursuant to Smith, or as occurrence witnesses, they would not have to be disclosed as experts. Neither was “retained” by Moore to give an opinion at trial. Both were intimately involved in the subject matter of the litigation.

Furthermore, the Association cannot claim surprise. From the initial filing of the complaint, Roberts and Wells have been involved in this lawsuit. Both Roberts and Wells were deposed by Moore’s attorney, and the Association’s attorney was present at both depositions. Roberts was specifically asked at his deposition in 1988:

“Q. [By Moore’s attorney:] Is that, in your experience and training in racing horses, is the location of the draw gate at the Greenup Cumberland County Fairgrounds in an unusual location for a draw gate. Right at the end of the turn?
A. It’s not very safe or good; but there’s, well, I think Charleston’s is the same way.
Q. Where is the safer place for the draw gate to be?
A. I’d say the middle of the stretch.”

Thus, the Association had notice of Roberts’ opinion that the draw gate was in an unsafe location. Therefore, although Roberts and Wells were not technically parties to this lawsuit, nor were they employees of parties, they were in fact occurrence witnesses to the subject matter of the litigation. The testimony they gave was not expert testimony as to the design of the racetrack, but rather was their opinion based on their experience in training and riding horses. There was no requirement that they be disclosed pursuant to Supreme Court Rule 220. It is so fundamental as to need no citation of authority that admission of evidence is a matter largely within the discretion of the trial judge, and reversal is not warranted in the absence of abuse of that discretion. (Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485, aff’d (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) We find no abuse of discretion.

The Association also contends the trial court erred in allowing Moore to file amended count III, paragraph 5(a) to her complaint. By this amendment, the Association maintains a new cause of action was added to the case, to which it was unable to present any rebuttal testimony. Moore responds that the Association has waived this issue for failure to object to paragraph 5(a) of the amended count III of the complaint at the time of the oral motion.

Section 2 — 616(c) of the Code of Civil Procedure provides for the amendment of pleadings at any time so they might conform to the proofs. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(c).) There is a liberal policy of allowing amendments to a complaint to conform to proof adduced at trial, but materiality of such amendments must be clear and apparent. (Marcus v. Wilson (1973), 16 Ill. App. 3d 724, 306 N.E.2d 554.) Additionally, it is also clear that amendments to the pleadings should not be allowed so that the other party would be prejudiced or surprised. (Stringer Construction Co. v. Chicago Housing Authority (1990), 206 Ill. App. 3d 250, 563 N.E.2d 819.) The test for determining whether the trial court properly exercised its discretion is whether the amendment furthers the ends of justice. (Trident Industrial Products Cory. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 866, 501 N.E.2d 273, 280.) The decision as to whether to allow or deny an amendment rests within the sound discretion of the trial court and such decision will not be overturned on appeal absent an abuse of discretion. In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156.

Moore is correct in her contention that the Association has waived this issue. The attorney for the Association did not object to paragraph (a) of the amended count III, and admitted as much to the trial court at the hearing on the post-trial motion. The Association’s attorney did object to paragraph (d) of the amended count III of the complaint, which was deleted by the trial court. Generally, a failure to object at the original proceeding constitutes a waiver of the right to raise the issue on appeal. (E&E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664.) Inasmuch as the Association has admitted it has failed to object to the filing of that paragraph of the amended count III of the complaint at trial, this issue is waived.

Moreover, even assuming the Association has not waived this issue, its argument is without merit. The proof at trial was that both Roberts and Wells believed the draw gate was in an unsafe location. As the Association contends, this issue was not specifically in the original pleadings. However, from the initial filing of the complaint, it has been an issue in the lawsuit. The Association had notice beginning in 1988 at the deposition of Roberts that the safety of the location of the draw gate was an issue in the case. Roberts was specifically asked this question at his deposition in 1988, to which he replied that the gate was not in a safe location. Furthermore, the Association had sufficient opportunity to cross-examine both Roberts and Wells on this opinion. Therefore, the Association cannot show any prejudice or surprise by the amendment to the pleadings to conform to the proofs. We find no abuse of discretion by the trial court in allowing the amendment to the complaint.

For the foregoing reasons, the trial court is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    FREDA MORESCKI, Plaintiff-Appellant, v. RANDALL H. LEUSCHKE, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0104
    Opinion filed August 16, 1991.
    David L. Requa, of Requa & Alexander, of Springfield, for appellant.
    David L. Drake and Stacey L. Cellini, both of Drake, Narup & Mead, P.C., of Springfield, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Freda Morescki appeals from the denial of a motion for new trial following a jury verdict in the circuit court of Sangamon County awarding damages, but not granting damages for disability, from defendant Randall Leuschke.

Plaintiff was a passenger in an automobile driven by her husband when their vehicle was rear-ended by a vehicle driven by defendant. The damage to the Morescki vehicle was slight. Plaintiff’s injuries included a neck sprain and the onset of problems with “floaters” in her eyes. The problem with the sprain was short-lived, but required medical attention. The eye problem may be permanent and will at least require annual examination by an ophthalmologist.

Liability was admitted, and the jury returned a verdict that provided:

“Disability $ -0-Pain and suffering experienced $ 300.00 Reasonable expense of necessary medical care, treatment and services received $ 277.00 Pain and suffering reasonably certain to be experienced in the future $ 1,200.00 Present cash value of reasonable expenses of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future $ 1,200.00”

The only issue before this court is whether the evidence requires a finding that the eye problem is a disability. If so, then the case must be reversed and remanded for a new trial on damages.

There was undisputed testimony that immediately following the accident plaintiff noticed floaters in both her eyes. This is sometimes described as little black spots floating in front of each eye. The treating ophthalmologist testified there is no treatment for floaters. According to the doctor, most people by the time they are about 50 years of age will have what is called a vitreous separation which is caused by shrinkage. The space resulting from the shrinkage is filled with a clear liquid, and little pieces of tissue and little clumps and strands of cells float free. When they line up with the visual access, a temporary blurring can occur. The plaintiff has blurring at times. She has been able, however, to continue her employment as a secretary and uses word-processing computers with computer screens. At the time of trial, plaintiff was employed with the supreme court research staff. She is able to drive a vehicle and continues with her regular activities and hobbies. There has been interference with her reading habits and, at times, she is required to adjust her head when using the computer screen. When the floaters interfere, movement will vary the location, alleviating problems. The floaters are basically aggravating, but she has adjusted to them. According to the medical testimony, floaters can go away and people can adjust to them.

One measure of damages in a personal injury action is disability resulting from the injury. (See Illinois Pattern Jury Instructions, Civil, No. 30.04 (2d ed. 1971).) As shown by the verdict, the disability provision was marked with a zero. The plaintiff’s post-trial motion argued this resulted in reversible error and, as argued here, requests a new trial on damages only.

A motion for a new trial is granted in the sound discretion of the trial court, and that court’s decision should not be disturbed absent an abuse of discretion. (Montgomery v. City of Chicago (1985), 134 Ill. App. 3d 499, 502, 481 N.E.2d 50, 53; Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647, 432 N.E.2d 1267, 1272.) The question of damages, however, is peculiarly one of fact for the jury. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 240, 242 N.E.2d 237, 240.) Generally, the amount of damages awarded by the jury will not be overturned unless it is palpably inadequate or against the manifest weight of the evidence (Montgomery, 134 Ill. App. 3d at 502, 481 N.E.2d at 53), or unless it is clear the jury disregarded a proved element of damages (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 1093, 410 N.E.2d 266, 272). The courts recognize that credibility of witnesses is one of the factors to be considered by the jury and that credibility determination can have a radical effect on a damages determination. Montgomery, 134 Ill. App. 3d at 502, 481 N.E.2d at 53; Beckmeyer v. Alcala (1985), 135 Ill. App. 3d 166,172, 481 N.E.2d 893, 898.

In the present case, we do not have the credibility issues indicated in both Montgomery and Beckmeyer. There is no reason to believe the floaters were present prior to the accident. The floaters caused concern, but plaintiff did not attempt to overplay the injury. She continued to work and adjusted her head when floaters caused sight impairment. She testified to how she adjusts to the problem, carrying on her regular activities. A reduction in her evening reading appears to be the major loss, and even this was not overly emphasized. We must decide whether the floater evidence established, as a matter of law, a “disability.”

The American Heritage Dictionary defines “disability” as “1. A disabled condition; incapacity. 2. Something that disables; handicap. 3. A legal incapacity or disqualification.” (American Heritage Dictionary 401 (2d College ed. 1985).) Much of the Black's Law Dictionary definition of “disability” relates to civil disabilities, but does state:

“A physical [(emphasis in original)] disability is a disability or incapacity caused by physical defect or infirmity, or bodily imperfection, *** [a]bsence of competent physical, intellectual, or moral powers; impairment of earning capacity; loss of physical function that reduces efficiency; inability to work.” Black’s Law Dictionary 548 (4th ed. 1968).

A partial loss of eyesight which reduced the typing speed of a secretary by 25% would be a disability. Total blindness would be total disability. A temporary eye impairment could be a temporary disability. We conclude that any impairment of eye function which interferes with a plaintiff’s everyday functions would be a disability in some way and, if sufficiently significant, would require a damages award.

Remembering that a jury verdict will not be overturned unless the verdict is palpably inadequate or against the manifest weight of the evidence (Montgomery, 134 Ill. App. 3d at 502, 481 N.E.2d at 53), we now turn to the specific testimony of plaintiff regarding her impairment caused by the floaters. On direct examination, plaintiff stated she has not read as much since the accident. However, when she was asked, “Why do you do it [read in the evening] so little now as compared to before,” she answered, “Well, usually I’m just too tired to read.”

During cross-examination regarding the floaters, the following took place:

“[Defendant’s attorney:] I think you said when you talked to me earlier that these floaters were basically aggravating but you adjusted to them.
[Plaintiff:] That’s correct.”

We conclude the jury could have decided that the condition lacked the significance to be considered a disability or to be of sufficient significance as to sustain a damages award. The decision would not be against the manifest weight of the evidence.

The order of the trial court denying the motion for new trial is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN HAMBLIN, Defendant-Appellant.
    Fourth District
    Nos. 4 — 91—0036, 4 — 91—0078 cons.
    Opinion filed August 16, 1991.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The sole issue presented by this appeal is whether the 120-day period of the speedy-trial statute (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5) requires a continuous period of incarceration. We hold that it does not.

The facts are not in dispute. In case No. 4 — 91—0078, defendant was indicted on June 23, 1988, and charged with one count of unlawful delivery of cocaine (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(b)(2)) and one count of unlawful delivery of cannabis (Ill. Rev. Stat. 1987, ch. 5&-k, par. 705(d)). On June 30, 1988, defendant was arrested on these charges and secured his release by posting the $1,000 cash bond set on the bench warrant.

In case No. 4 — 91—0036, defendant was charged by information on January 25, 1990, with criminal damage to property over $300 (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)) and arrested on that date. That charge was later superseded by an indictment. On January 25, 1990, defendant’s bail bond was revoked and he was taken into custody on the drug charges in case No. 4 — 91—0078.

Defendant was released on bail in case No. 4 — 91—0078 on March 12, 1990; and on March 13, 1990, he was released on bond in case number 4 — 91—0036. Defendant was next required to appear in both cases on June 27, 1990. He failed to appear on that date, and warrants were issued for his arrest. On June 29, 1990, defendant was arrested on those warrants and thereafter held in custody in each case pending further proceedings.

On September 26, 1990, defendant filed a petition for discharge under section 103 — 5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5), alleging that he had been in custody for more than 120 days and that there were no delays attributable to him which caused him not to be tried on the pending charges. The trial court conducted a hearing on that motion and denied it, holding that the 120-day period referred to in section 103 — 5 of the Code had to be continuous. Defendant was subsequently tried and convicted on all charges and sentenced to the Illinois Department of Corrections.

The statute in question reads as follows:

“Speedy trial, (a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.
(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.
(d) Every person not tried in accordance with subsections
(a) , (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.
(e) If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subsections (a) and (b) of this Section. * * *
(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended. Where such delay occurs within 21 days of the end of the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section, the court may continue the cause on application of the State for not more than an additional 21 days beyond the period prescribed by subsections (a), (b) , or (e).” Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5.

In People v. Sonntag (1984), 128 Ill. App. 3d 548, 553-54, 470 N.E.2d 631, 635-36, the court dealt with the same issue with which we are confronted and wrote the following:

“As the speedy-trial provisions of section 103 — 5 implement the right to a speedy trial guaranteed by the Illinois Constitution, the statute is to be liberally construed. [Citations.] Our supreme court has stated that it will avoid technical constructions which frustrate the purpose of our State’s speedy-trial provisions. [Citation.]
The State has not referred us to any policy considerations or legislative debate which would support its position that a narrow interpretation of the 120-day statutory provision should be applied so that a continuous period of incarceration is required under section 103 — 5(a). Here, the defendant was in custody after his bond was revoked for the same offense for which he was originally incarcerated. The 120-day period prescribed in section 103 — 5(a) commences to run on the date defendant is in custody for the offense for which discharge is sought. [Citation.] Although defendant was released on a recognizance bond for a period of time until that bond was terminated by the court for failure to comply with its conditions, we believe that the delay in trial occasioned by defendant by his release from custody should only temporarily suspend for the time of the delay the time within which he should be tried. *** Thus, under the particular circumstances present here, we conclude that the defendant may combine two separate periods of incarceration in determining whether he has been in custody in violation of the 120-day statutory period prescribed in section 103 — 5(a).”

There is no dispute in the record before us that defendant was held in custody well in excess of 120 days if the different periods of time in which he was in custody on these charges can be aggregated. Following the decision in Sonntag, we hold that the periods can be aggregated. Accordingly, defendant was held in custody in violation of the provisions of section 103 — 5 of the Code and his convictions must be reversed.

Were we to accept the State’s argument that different periods of defendant’s custody could not be combined when determining whether he has been in custody for more than 120 days in violation of section 103 — 5 of the Code, then each time a defendant was released and later taken into custody again, the 120-day “clock” would start to run anew. Such an interpretation would render meaningless the language of section 103 — 5(f) of the Code, which states that a delay occasioned by the defendant “shall temporarily suspend for the time of the delay the period within which a person shall be tried.” (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(f).) That language clearly contemplates the adding together of periods of custody after the delay occasioned by the defendant has ceased.

We also disagree with the State that the present case can be meaningfully distinguished from Sonntag on the basis that here defendant’s failure to appear was wilful. There is no indication in Sonntag that this distinction would have made any difference in that court’s holding, and we see no reason why it should here.

The State also contends that were we to agree with defendant’s argument, a “dangerous precedent” would be set, as explained in the following excerpt from the State’s brief:

“In future cases, defendants could bond out on day 119 of custody, remain out on bond for a period of time while the cause is set for trial in accordance with the 160-day rule, make no written demand for speedy trial, willfully violate a mandate of the court and be arrested, and then be eligible for dismissal or reversal if he is not tried the next day. This cannot be the intent of our legislature in enacting the Speedy Trial Act.”

While we give the State credit for a nice try, we are unpersuaded. We note that section 103 — 5(f) of the Code provides that the State may be granted an additional 21 days in which to bring a defendant to trial beyond the original 120-day period when a delay occasioned by the defendant temporarily suspends the time within which he must be tried and that delay occurs within 21 days of the end of the 120-day period. Certainly the defendant’s failure to appear for trial is a delay attributable to him within the meaning of section 103— 5 of the Code. Thus, when he is rearrested on the 120th day (following the State’s hypothetical), the State may be granted an additional 21 days in which to bring the defendant to trial, and we can hardly imagine a court that would deny the State’s request for additional time under those circumstances.

Further, we note that section 103 — 5(c) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(c)) authorizes the court to grant an additional 60 days to the State in which to bring the defendant to trial if, despite its exercise of due diligence, the State is unable to obtain evidence material to the case and there are reasonable grounds to believe that such evidence may be obtained at a later day. Thus, if a defendant’s failure to appear for trial has disrupted the State’s ability to garner its evidence, then when the defendant finally does appear, the State may be given up to an additional 60 days in which to bring its case to trial.

We point out that the court in Sonntag also dealt with questions arising under section 103 — 5 of the Code regarding an examination of a defendant to determine his fitness to stand trial. (Sonntag, 128 Ill. App. 3d at 554-59, 470 N.E.2d at 636-39.) None of the discussion in Sonntag on that subject is before us in this appeal, and nothing in this opinion should be construed as a comment one way or another on that discussion.

For the reasons stated, defendant’s convictions and sentences in each of these consolidated cases are reversed.

Reversed.

LUND, P.J., and McCULLOUGH, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE COLLETTE, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0819
    Opinion filed August 16, 1991.

      George F. Taseff and Harold M. Jennings, both of Bloomington, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

After a jury trial, defendant was convicted of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13), and sentenced to 12 years’ imprisonment. He appeals, alleging (1) his right to effective cross-examination was violated by restricted cross-examination of the victim as to her alleged consumption of up to one-half gallon of wine per day for the two years prior to the date of the offense; and (2) the trial court abused its discretion in allowing testimony that defendant was holding a knife after the offense occurred.

On January 7, 1990, the victim, J.S., was working as a waitress at the Elite Diner in Urbana, Illinois. About 1 p.m., defendant entered the diner with a friend. J.S. knew the defendant because he had been a regular patron of the diner. J.S. hinted that she would like a ride home because she had ridden her bicycle to work. Defendant left the diner, but then telephoned J.S. to tell her he would give her a ride home and returned to pick her up. After putting the bicycle in his car, defendant drove J.S. to her residence. They both went inside, where J.S.’s roommate was present. J.S. changed her clothes and then asked her roommate if there was any beer, but her roommate reminded J.S. that J.S. drank all the beer the previous evening. J.S. then asked defendant to give her a ride to buy a six-pack of beer. Defendant took J.S. to Caroline’s bar, where they remained for three or four horns drinking beer and playing pool. After advising defendant several times that she wanted to go home, J.S. asked the bartender to call a cab and purchased a 12-pack carton of beer. When J.S. informed defendant that she had called a cab, defendant said he would take her home and told the bartender to cancel the cab. J.S. paid for the 12-pack, and both she and defendant left in defendant’s car.

Upon exiting the parking lot, defendant turned in the opposite direction from J.S.’s residence, and J.S. told him to turn around. J.S. testified that when defendant drove to a rural area and stopped the car, she got out of the car and told defendant she was walking home, whereupon defendant got out of the car, struck her in the face, and forced her back into the car. He then unzipped his pants and forced her head down so his penis entered her mouth “for a few seconds.” J.S. managed to get out of the car and she began running. Defendant caught up with J.S., and grabbed her and tore off her shirt, knocking her to the ground. She kicked at defendant and tried to get away four separate times but defendant kept knocking her down. At that point, J.S. saw defendant standing over her with a knife so she kicked him and sent him “flying through the air.” She then got up and ran toward the lights of a farmhouse.

At about 8:30 p.m. on January 7, 1990, Mrs. Neva Anderson responded to a knock at her back door. There she saw J.S., who was naked from the waist up, appeared nervous and shaking, with her nose bleeding and her eyes puffy. The sheriff was called and deputies located defendant’s car on the side of the road. Scattered in and around the car were the victim’s torn clothing, 10 unopened cans of beer, and an address book, compact, and change. Defendant was nowhere to be found.

Defendant’s testimony substantially paralleled the victim’s up to the point where he stopped the car in the rural area. According to defendant, he attempted to kiss J.S. but she tensed up and bit his thumb when he tried to turn her head. Defendant then exited the car to “relieve” himself and next saw J.S. standing outside the car. When he approached her and put his arms around her to ask what was wrong, she pushed him into a ditch and kicked him in the head as he tried to get up. He grabbed her sweatshirt to stop her from kicking and they both fell to the ground. He let her up and she continued kicking him in the head until he lost consciousness. Defendant testified that when he awoke, he walked back to Champaign and called his girlfriend, who picked him up about 1:40 a.m. Defendant and his girlfriend then went to the police station.

I

The basis of defendant’s first claim, the alleged restriction of his right to effectively confront and cross-examine his accuser for the purpose of impeaching her credibility, rests on the following exchange during cross-examination of the victim:

“Q. [Defense counsel:] As a matter of fact, you, in April of this year you described — in looking back at your drinking pattern, you indicated you would consume as much as a half a gallon of wine per day; is that a fair statement?

A. [J.S.:] No.”

The State’s objection was sustained, and a side-bar conference was held (which is not part of the record on appeal (see 134 Ill. 2d Rules 323(c), (d))).

Defendant’s motion for a new trial, however, stated his offer of proof for impeachment of the victim based on information contained in an alcohol evaluation report on the victim prepared by the Koala Center in Lebanon, Indiana, three months after the offense, and which was not in evidence at trial. A portion of that report indicated: “Over the last two years, she has been [drinking] up to one-half gallon of wine per day. Most of her drinking is done at home alone ***. She admits to blackouts.” Prior to trial, the judge had received and reviewed the report in camera, and in accordance with counsel’s request, had released same to assist in the preparation of the case.

Defendant claims that this restriction on his ability to impeach the credibility of the witness as to her prior consumption habits was constitutional error of the first magnitude and amounts to reversible error, citing Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9. However, the scope of cross-examination is not unlimited; the court may impose restrictions based on concerns for harassment, prejudice, confusion of the issues, or interrogation that is only marginally relevant. Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L. Ed. 2d 674,106 S. Ct. 1431.

The focus under the confrontation clause is not on the limitation placed upon a cross-examination, but whether the jury has been made aware of adequate facts to determine if the witness is worthy of belief. (People v. Hines (1981), 94 Ill. App. 3d 1041, 419 N,E.2d 420.) The reviewing court must look to what was allowed rather than what was prohibited. People v. Lindgren (1982), 111 Ill. App. 3d 112, 119, 443 N.E.2d 1129,1135.

The testimony of the victim indicates that substantial facts were elicited to enable the jury to assess her credibility. At trial, the 33-year-old victim, J.S., testified that during the three or four hours she was with the defendant at Caroline’s bar, she consumed eight or nine beers. She admitted being drunk when she left the bar with defendant; she acknowledged that in the past she had consumed a lot more than eight or nine beers. She also admitted to being an alcoholic. On cross-examination, the witness again stated she had a problem with alcohol and had sought professional treatment. The witness testified that (1) she drank on an everyday basis, (2) she had experienced blackouts caused from drinking alcohol, and (3) she has no recollection of events that occur during a blackout. She further stated that while at home on the night before the occurrence, she drank all her roommate’s beer.

Defendant cites People v. McGuire (1960), 18 Ill. 2d 257, 163 N.E.2d 832, and People v. Davis (1976), 43 Ill. App. 3d 603, 357 N.E.2d 96, for the view that intoxication or alcoholism are permissible areas of impeachment for purposes of attacking a witness’ credibility. In those cases, however, the relevance of evidence of intoxication or alcoholism was confined to the time of the event about which the witness testified. Additionally, the issue in both cases was not one of confrontation but whether the witness’ intoxication rendered him incompetent and untrustworthy as a witness. Citing to a legal treatise, the Davis court noted that “even habitual intoxication does not in itself incapacitate a person offered as a witness.” Davis, 43 Ill. App. 3d at 614, 357 N.E.2d at 104.

In People v. Di Maso (1981), 100 Ill. App. 3d 338, 343, 426 N.E.2d 972, 975, the court noted: “Unlike the inferences which may be drawn from the fact of drug addiction, the fact of alcoholism is not probative of the witness’ perceptual abilities at any given point in time. Where the proffered evidence is only that the witness is an alcoholic, it is doubtful whether it is a relevant matter for cross-examination.” The Di Maso court went on to note that evidence of alcohol-induced blackouts, however, is admissible as probative of a witness’ sensory capacity when the proffered evidence shows the witness’ alcoholism causes blackouts brought on by drinking, and the witness was drinking near the time of the events of which he testifies. (Di Maso, 100 Ill. App. 3d at 343, 426 N.E.2d at 975.) That court concluded that the jury should have heard evidence that drinking triggered blackouts in the witness.

In contrast to Di Maso, J.S.. not only admitted her alcoholism but also admitted that she experienced blackouts caused by alcohol consumption and that she had been drunk at the time of the offense. Furthermore, the defense put on an expert witness as to the meaning and effect of blackouts:

“A. [Mark Holley:] Under the influence of alcohol, it’s when the alcohol hits the brain, has kind of a shotgun effect on the brain and can produce memory lapses while the person is still functioning, sometimes doing their job, and they have no recollection of what was happening. It’s not passing out. It’s while the person is still awake and functioning.
* * *
A. [Holley:] Oftentimes they will piece together bits of information they have gained or fabricate to cover up the blackout.
* * *
A. [Holley:] *** [And] to get rid of the, or to overcome the sense of shame and guilt associated with memory lapse.”

Therefore, the jury had before it not only an explanation of the effect of the blackout, but also the amount and type of alcohol the victim had consumed immediately prior to the offense, the fact she was drunk, and the fact she had experienced alcohol-induced blackouts in the past, all of which impacted her credibility. Nevertheless, defendant claims that because of the limitation on his cross-examination of J.S. as to the type and quantity of alcohol she consumed on other occasions, he was prevented from establishing that prior levels of consumption, or consumption habits, have the equivalent effect on witness credibility as does drug addiction (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), mental instability (People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278), and habitual glue sniffing (People v. Stalions (1986), 139 Ill. App. 3d 1033, 488 N.E.2d 297). In Stalions, the defendant attempted to impeach the witness with evidence of her habitual glue sniffing. Defendant’s offer of proof included expert testimony as to the adverse mental effects of glue sniffing and testimony by other witnesses as to the mental deterioration of the witness during the period she sniffed glue. In contrast, the defendant at bar submitted no offer of proof as to the present mental effects of prior alcohol consumption habits or the relevance of such evidence as a predictor of blackouts.

Defendant alleges that the restriction on cross-examination as to the witness’ past consumption of up to a half gallon of wine per day denied him the opportunity to fully and effectively present his theory that the witness may have experienced an alcohol-induced blackout on the night of the alleged offense. However, the court’s ruling on this limited issue, restricting defendant’s attempts to impeach the witness with the evaluation report, did not prevent defendant from questioning J.S. as to the frequency or circumstances of her admitted blackouts, how recently one had occurred, or whether, in fact, she experienced a blackout on the night in question; nor did it otherwise impinge on his ability to present his defense. The limited restriction on cross-examination at best foreclosed inquiry only as to the tangential point that the victim had consumed a half gallon of wine at some time either prior or subsequent to the offense.

Determinations as to admissibility of evidence lie within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.

The facts testified to by the victim were more than adequate to allow the jury to determine her credibility and defendant failed to present any offer of proof to demonstrate the relevance of further cross-examination as to the witness’ past consumption habits. The latitude to be allowed on cross-examination and rebuttal is a matter within the sound discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. Collins, 106 Ill. 2d 237, 478 N.E.2d 267.

When it appears from the entire record that the jury has been made aware of adequate factors concerning relevant areas of impeachment of a witness, as is apparent from the facts in this case, no constitutional question arises merely because defendant has been prohibited on cross-examination from pursuing other areas of inquiry. (People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420, 426.) On the facts elicited at trial, this standard has been met.

II

Defendant next argues the victim’s testimony that she observed the defendant holding a knife only after commission of the offense was improperly admitted because such testimony was irrelevant to the offense charged and constituted evidence of other crimes resulting in manifest prejudice to him.

The trial court admitted the witness’ testimony on the basis that “the presence of the knife is a part of the total transaction that goes to show force and the conduct of the defendant.” The general rule is that it is error to admit weapons into evidence when the weapon was neither used in the commission of the offense nor sufficiently connected to it. (People v. Yelliott (1987), 156 Ill. App. 3d 601, 509 N.E.2d Ill.) While no weapon was admitted in this case but only the victim’s testimony that she saw defendant holding the knife as he stood over her, we will examine the testimony pursuant to the general rule to determine whether the knife was sufficiently connected to the crime. See People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528.

The State argues that even though the knife was not observed by the witness until after the sexual assault had occurred, that testimony was intertwined with and a part of the continuing narrative of the circumstances attendant to the sexual assault, which offense began with defendant’s punching the victim in the face and forcing her into the car prior to the sex act, and concluded when and as it did because the victim escaped to the farmhouse. The State points out that if testimony regarding the knife was in fact irrelevant to any material fact or proposition to prove the offense charged, all of the other testimony regarding events both prior and subsequent to the sex act, including the defendant’s tearing off the victim’s clothing and knocking her to the ground four different times, also would have to be excluded as similarly irrelevant to the offense charged. When facts concerning uncharged criminal conduct are all part of a continuing narrative which concerns the circumstances attending the entire transaction, they do not concern separate, distinct, and unconnected crimes. (People v. Marose (1957), 10 Ill. 2d 340, 343, 139 N.E.2d 735, 736.) Evidence of other crimes is admissible “if such evidence is intertwined with the offense charged.” (People v. Garrison (1986), 146 Ill. App. 3d 592, 593, 496 N.E.2d 535, 536.) In People v. Johnson (1979), 76 Ill. App. 3d 147, 394 N.E.2d 919, testimony as to a shotgun blast fired through the door of a tavern immediately following a robbery was admissible as evidence of the continuous criminal action involved in the charged offense, armed robbery. Analogously, we find the victim’s testimony that she saw the defendant holding a knife as he stood over her after the sexual assault occurred was properly admissible as part of the continuing narrative of the circumstances attendant to the sexual assault.

For the foregoing reasons, we affirm the decision of the circuit court of Champaign County.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS KILLEN, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0760
    Opinion filed August 22, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (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 STEIGMANN

delivered the opinion of the court:

Following a jury trial, defendant, Thomas Killen, was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d)) and sentenced to four years’ probation with the condition that he serve 180 days in jail. Defendant appeals, arguing that (1) the issues instructions incorrectly referred to sexual conduct, instead of sexual penetration, (2) the State improperly argued that a witness was more credible than other witnesses because she was a police officer, (3) the jury instructions for aggravated criminal sexual abuse failed to include a mental state, and (4) the trial court erred when it ordered defendant to serve 90 days in jail at the end of his probation term but failed to set a remission hearing prior to the commencement of his incarceration.

We affirm and remand with directions regarding defendant’s sentence.

I. Background

In July 1990, defendant was charged by an amended information with the offense of aggravated criminal sexual abuse. Defendant was accused of committing an act of sexual penetration on October 15, 1989, by placing his penis in the anus of RW. The amended information also alleged that P.W. was at least 13 years of age but under 17 years of age and that defendant was at least five years older than P.W.

Katherine Williams, P.W.’s mother, testified that during September 1989, she and her children needed a place to live. She was acquainted with defendant and his wife, Debra Killen, and she asked them if she could stay at their home for a few months. They agreed, and the Williams family moved in at the end of September.

Williams testified that on October 15, 1989, Debra informed her that something had occurred involving P.W., her 15-year-old son. Williams spoke with P.W. and then notified the police. She also took P.W. to the hospital.

Williams testified that she had paid $250 rent to the Killens in September and October. She stated that she had not been told that she and her family had to leave before October 15. The Williams family stayed at the Killen residence for an additional week after October 15,1989.

P.W. testified to three sexual episodes at the Killen residence. He stated that two weeks before October 15, defendant approached him and they engaged in oral sex. They also engaged in oral sex the week before October 15. On both of these occasions, defendant threatened to throw P.W.’s family out if he reported the incident. P.W. testified that because his family’s financial situation was poor and they had nowhere to go, he was scared and did not initially report these incidents.

P.W. also testified that on the morning of October 15, defendant once again approached him and, after defendant put Vaseline on his penis and removed P.W.’s pants, engaged in anal sex with P.W. P.W. stated that defendant “came” while he was inside P.W.’s anus.

The doctor testified who examined P.W. on October 15 at approximately 9 p.m. He was unable to determine whether P.W. had been sexually assaulted. While his examination revealed nothing unusual or dramatic about P.W.’s physical condition, he noticed some redness around P.W.’s rectal opening and took a rectal swab and smear.

A forensic serologist testified that her examination of the rectal swab and smear revealed the presence of seminal material. However, the serologist was unable to positively identify the blood type of the seminal material because there was not enough present on the rectal swab and smear.

Police officer Brenda Campbell testified that on the evening of October 15, she interviewed defendant. He never denied being involved in the sexual incident with P.W. However, defendant explained that P.W. made approaches toward him and, although defendant attempted to ward off the advances, he eventually capitulated. He admitted lubricating himself and putting his penis in P.W.’s anus around 11:30 a.m. that day. Defendant stated that he and P.W. did not kiss and that the act was for sexual gratification and nothing more. Defendant explained to Campbell that P.W. threatened to go to the street for sex and that defendant wanted him to avoid disease. Campbell stated that defendant cried during the interview and said that he would not force himself on anyone, especially a young boy, and that he felt used and taken advantage of.

Defendant testified and denied engaging in sexual activity with P.W. He stated that on the morning of October 15, he left with his father and mother at approximately 11:15 a.m. to play bingo. Defendant recalled that when they returned later that afternoon, Debra had a conversation with P.W.’s brother regarding an incident that did not involve defendant. Defendant stated that Debra then contacted Williams, who in turn contacted the police.

Defendant admitted that he was interviewed by Campbell at the police station but denied that he made any incriminating statements to her.

Defendant stated that on October 14, 1989, the day before the alleged incident, he had a dispute with Williams over the payment of rent. Defendant told Williams she would have to leave his residence if she did not pay her fair share of rent. According to defendant, Williams agreed to pay monthly rent while she stayed at the residence.

Debra testified that Williams paid rent only in September 1989, and thereafter she paid no further rent. Williams testified to the contrary, maintaining that she paid her rent in a timely fashion.

The jury found defendant guilty of the offense of aggravated criminal sexual abuse, and the court sentenced him to probation for a period of four years. As a condition thereof, the court ordered defendant to serve 180 days in jail. The court’s order of incarceration specified 90 days to be served at the beginning of the probation period. The final 90 days would be served “subject to review and waiver” at the end of the probationary period. The court did not set a remission hearing to review the final incarceration period.

II. The Issues Instruction

Defendant first argues on appeal that the jury instructions were confusing on a key element of the charge of aggravated criminal sexual abuse because the definitional instructions used the term “sexual penetration” while the issues instruction used the term “sexual conduct.” Additionally, defendant argues that the jury was further confused because it was not instructed on the definition of the term “sexual conduct.” The jury was given the following instructions:

“A person commits the offense of aggravated criminal sexual abuse when he commits an act of sexual penetration with a victim who is at least 13 years of age but under 17 years of age when the act was committed and he was at least 5 years older than the victim.” (Emphasis added.)

See Illinois Pattern Jury Instructions, Criminal, No. 11.38, at 182-83 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d).

“The term ‘Sexual Penetration’ means any intrusion, however slight, of any part of the anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Emphasis added.)

See IPI Criminal 2d No. 11.65, at 192.

“To sustain the charge of aggravated criminal sexual abuse, the State must prove the following propositions:
FIRST: That the defendant committed an act of Sexual Conduct with [P.W.]; and
SECOND: That [P.W.] was at least 13 years of age but under 17 years of age when the act was committed; and
THIRD: That the defendant was at least 5 years older than [P.W.].
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.)

Compare IPI Criminal 2d No. 11.40, at 186-87.

The term “sexual conduct” is defined in section 12 — 12(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e)) as follows:

“ ‘Sexual conduct’ means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.”

As defendant points out, the issues instruction used in this case was based upon IPI Criminal 2d No. 11.40. However, for reasons we cannot begin to guess at, the issues instruction actually given refers, in the first proposition thereof, to sexual conduct instead of to sexual penetration, as does the immediately preceding instruction which correctly defines the offense of aggravated criminal sexual abuse (IPI Criminal 2d No. 11.38). Accordingly, the issues instruction was erroneous.

Defendant admits that he did not object at trial, offer alternative instructions, or raise this issue in his post-trial motion. However, he argues that this issue is not waived on appeal because the court’s giving the erroneous issues instruction constituted “grave error.” We disagree.

“Generally, a defendant waives any error contained in jury instructions if he does not object or proffer alternative instructions at trial and, ordinarily, issues not properly raised in a defendant’s post-trial motion will not be considered on appeal. [Citation.] However, if the interests of justice require, substantial defects in jury instructions in criminal cases may be considered, even though the defendant has failed to make timely objections. [Citation.] This exception will be invoked to correct grave errors or to correct errors in cases so closely balanced that fundamental fairness requires that the jury be properly instructed. [Citation.]
*** We have previously held that certain instructions, such as *** elements of the offense, are essential to a fair trial and that the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the People’s burden of proof.” People v. Reddick (1988), 123 Ill. 2d 184,198, 526 N.E.2d 141,147.

After considering the standards discussed in Reddick, we are satisfied that this is not a case involving “grave error,” nor is it an appropriate case to invoke the “plain error” rule (134 Ill. 2d R. 451(c)). We note that the jury was given a proper definition of the offense of aggravated criminal sexual abuse (as including the element of sexual penetration) and was given as well the definition of sexual penetration. The jury was never given any definition of the term “sexual conduct,” nor does that term appear in any instruction other than in the first proposition of the issues instruction. Thus, the jury would have no reason to believe that “sexual conduct” was anything other than another way of referring to the acts constituting “sexual penetration.” It certainly would have no basis to conclude that the acts constituting “sexual penetration,” which the State had to prove, involved a more significant degree of sexual activity than the acts constituting the definition of “sexual conduct.”

Further, this case is distinguishable from Reddick because the confusion here between the issues instruction and the definitional instruction did not affect any disputed issue which the jury had to resolve. In the present case, there was no dispute regarding the kinds of sexual activities in which defendant and P.W. engaged. Instead, defendant denied engaging in any sexual activity with P.W., while P.W. testified to acts of both oral and anal intercourse. (We note in passing that both of these kinds of sexual activities fit under the statutory definition of sexual penetration (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(f)).) Thus, the jury was extremely unlikely on these facts to be concerned about (or perhaps even to notice) the difference in terminology between the definitional instruction and the issues instruction. Further support for our view on this point comes from a review of the closing arguments of counsel, which focused on the issue of whether any sexual activities occurred between defendant and P.W., not on what the nature of those sexual activities might have been.

As a last point, we do not believe this to be a close case on its facts. The jury had the opportunity to hear and see P.W. when he testified about engaging in sexual activities with defendant, to hear medical evidence corroborating P.W.’s testimony that he had been the victim of anal intercourse, and to hear the testimony of Officer Campbell in which she related defendant’s admissions to her of engaging in that behavior.

For all of these reasons, we decline to reverse defendant’s conviction due to the erroneous instruction which was given.

III. Closing Argument

Defendant next contends that the State’s closing argument was improper because the State asserted that Campbell had enhanced credibility because she was a sworn police officer. Specifically, defendant argues that the following remarks during the opening portion of the State’s closing argument were improper:

“You heard Brenda Campbell. Brenda Campbell also climbed on the the [sic] stand. She’s been a police officer and in law enforcement pretty much her whole life, security ever since she’s been out of high school, been a police officer for thirteen years, started at a store, with the Secretary of State, the Chatham P.D., Sangamon County, and now she’s a detective, sworn police officer, sworn to uphold the law.
* * *
Ladies and gentlemen, yesterday you witnessed that some-one in this courtroom committed an act of perjury. Either Deputy Detective Brenda Campbell, sworn police officer, who did not know either of the parties, objective, was sworn to uphold the law, committed an act of perjury and told you that he [defendant] admitted it, or the defendant committed an act of perjury when he said he did not. You can look, and I believe the Judge will read you an instruction which states that you can look at the credibility of the witnesses. You look at their motive, you look at their interest and bias.
What interest and bias does Brenda Campbell have? She’s an objective police officer. She was simply investigating a case. What interest did the defendant have? The defendant is on trial. The defendant has every reason to deny making the statement. He has everything to gain. If you believe him he can walk out of this courtroom. If you don’t believe him, then he has lost nothing by denying the statement. Someone committed an act of perjury. It’s up to you to decide who did it.”

Defendant further contends that the following comments made during the State’s rebuttal argument were improper:

“Brenda Campbell has made a career out of law enforcement. She told you she did it to advance her career as a police officer. What motive or interest does she have to perjure herself? What would that do to her career as a police officer if she was found guilty of lying in court? It would destroy any credibility she has, destroy her career as a police officer. Why would she even dream of making such a mistake when she has spent her whole life becoming a police officer?
Police respond to the crime. They’re the line between society and crime and they report what they see and what they hear.
* * *
*** Detective Campbell did not have any reason for her to lie. A police officer is objective. She is the only one in this entire trial who wasn’t related to someone, who didn’t know someone, who didn’t have an interest to lie. She has her entire career resting on the line today ***.”

Citing People v. Ford (1983), 113 Ill. App. 3d 659, 662, 447 N.E.2d 564, 567, defendant argues that the prosecutor’s “repeated and obvious references” to Officer Campbell’s status as a police officer improperly enhanced her credibility. In Ford, the prosecutor argued to the jury that when it decided whether the defendant or a deputy sheriff was telling the truth, the jury should keep in mind that the deputy was a “sworn” police officer. (Ford, 113 Ill. App. 3d at 661-62, 447 N.E.2d at 566.) The court in Ford wrote the following:

“The prosecutor was certainly aware of the fact that credibility was an important issue in this case. However, a police officer’s testimony is to be evaluated in the same manner as that of any other witness and there is no presumption that such testimony is more credible than that of any other witness. [Citation.]
The manner in which the prosecutor made repeated references to [the deputy’s] status as a police officer and a sworn deputy was an improper attempt to enhance the credibility of his witness. Although a prosecutor may comment on the credibility of witnesses, the remarks in this case exceeded the boundaries of proper argument.” Ford, 113 Ill. App. 3d at 662, 447 N.E.2d at 567.

In the present case, Campbell testified that she interviewed defendant on October 15 and had obtained from him an admission that he engaged in anal sex with complainant. Defendant thereafter denied making this statement. In closing arguments, the State referred to this conflicting testimony and commented that either Campbell or defendant was lying. The State further commented that Campbell had no reason to lie, could jeopardize or destroy her career by lying, and would not do so. Such an argument is proper when, as here, it can be characterized as comment on, or discussion of, the credibility of the defendant and other witnesses, and when it is based on the evidence and reasonable inferences drawn therefrom. People v. Richardson (1988), 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625; People v. Smith (1991), 209 Ill. App. 3d 1043, 1051, 568 N.E.2d 482, 487; People v. Thomas (1988), 172 Ill. App. 3d 172, 178-79, 526 N.E.2d 467, 471 (prosecutor’s remarks that either defendant or the police officers had to be lying held proper argument because of direct conflict in the testimony of the police officers and that of the defendant).

We disagree with the decision in Ford and decline to follow it because we believe it to be inconsistent with the holding of the Illinois Supreme Court in People v. Flores (1989), 128 Ill. 2d 66, 94, 538 N.E.2d 481, 492, wherein the supreme court wrote the following: “The credibility of witnesses is a proper subject for closing argument if it is based on the facts in. the record or inferences drawn from those facts.” Of course the Ford court is correct when it notes that “there is no presumption that [a police officer’s] testimony is more credible than that of any other witness” (Ford, 113 Ill. App. 3d at 662, 447 N.E.2d at 567), but that observation has nothing to do with a jury’s evaluation of (and the prosecutor’s ability to argue) the credibility of a witness whom the jury has actually seen and heard. Neither the prosecutor in Ford nor the prosecutor in the present case mentioned anything about a presumption in their closing arguments; instead, the jury was asked to evaluate the particular police officer whose credibility was at issue.

We note that defendant in his argument before this court nowhere challenges any of the factual averments in the prosecutor’s closing argument regarding Officer Campbell but, citing Ford, argues only that the prosecutor’s constant references to Campbell as a sworn police officer enhanced her credibility in the eyes of the jury, leading to unfair prejudice. We hold that these references may in fact have enhanced her credibility, but there was nothing unfair about them.

IV. No Mental State In Jury Instructions

Next, defendant argues that his conviction must be reversed because the jury instructions on the offense of aggravated criminal sexual abuse did not include a mental state. In support of this argument, defendant cites the dissent in People v. Burton (1990), 201 Ill. App. 3d 116, 123-29, 558 N.E.2d 1369, 1374-78 (Steigmann, J., dissenting). However, in People v. Smith (1991), 209 Ill. App. 3d 1043, 1060-61, 568 N.E.2d 482, 493, this court reaffirmed its decision in Burton, and we decline to review the issue further.

V. Remission Hearing Prior To Incarceration

Last, defendant argues that pursuant to People v. Hollinshead (1991), 207 Ill. App. 3d 425, 427, 566 N.E.2d 8, 10, the trial court erred in not providing for a remission hearing prior to defendant’s incarceration. The State concedes the point and we agree. Accordingly; we remand with directions for the trial court to set a date for a remission hearing.

Affirmed and remanded with directions.

LUND, P.J., and KNECHT, J., concur.