author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK STENGEL, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1900
    Opinion filed March 8, 1991.
    Rehearing denied April 5, 1991.

      Michael D. Monico and Barry A. Spevack, both of Monico, Pavich & Spevack, and Marvin Bloom, both of Chicago, for appellant.
    John M. O’Malley, State's Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Mary Brigid Kenney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a bench trial, defendant, Mark Stengel (Stengel), was convicted of criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(1).) The trial court found that Stengel committed an act of sexual penetration upon C.B. between Stengel’s penis and C.B.’s vagina by-use of force and threat of force in violation of section 12—13(a)(1) of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(1)). Defendant was sentenced to serve four years in the Illinois Department of Corrections. Defendant appeals the judgment of conviction.

The crime at issue is commonly referred to in dictionaries, legal textbooks, statutes, novels and even poems as rape. The fact that Stengel’s penis penetrated C.B.’s vagina is not at issue. Stengel claims the penetration was consensual. The State and C.B. claim it was not.

Stengel raises the following issues for review: (1) whether the defendant was proven guilty beyond a reasonable doubt; (2) whether the trial court unduly restricted defendant’s cross-examination of C.B. denying him a fair trial; and (3) whether the trial judge should have recused himself.

The facts as to how Stengel and C.B. met appear undisputed. C.B. worked as a cocktail waitress at a restaurant/bar in Des Plaines, Illinois. In late November 1986, Stengel, a 25-year-old vice-president of a tool company, met C.B. in the bar where she worked. C.B. waited on Stengel and his friend, Dr. Apollo Solecki.

Stengel returned to the bar on several occasions alone. Each time he sat in C.B.’s station and engaged in small talk with her. The first several times Stengel had a drink at the bar he paid for the drinks with cash. However, the third time he returned to the bar Stengel used a credit card to pay his bill. The credit card included the initials “M.D.” following Stengel’s name, creating the false impression that he was a doctor. On at least one occasion Stengel left a $10 tip for one drink.

Eventually C.B. and Stengel agreed to meet for lunch on December 5, 1986. Stengel gave C.B. his phone number and in turn C.B. wrote out her phone number and directions to her apartment on a napkin.

Many of the remaining facts are disputed.

At trial Stengel testified on his own behalf. Stengel testified that on December 5, 1986, he drove to C.B.’s apartment. Stengel believed he arrived at C.B.’s apartment around noon. He brought a bottle of champagne with him as a present. C.B. invited him into her apartment. C.B. rinsed off some glasses for the champagne and they toasted one another. The two talked in the living room for about an hour. According to Stengel, it was during this conversation that C.B. first revealed that she did not have a driver’s license as a result of a drunk driving conviction.

Stengel drove C.B. to the Fountain Blue restaurant. Stengel took the partially finished champagne bottle with him so that C.B.’s boyfriend would not discover it. Along the way to the restaurant, while waiting at a red light to make a left turn, Stengel placed the champagne bottle, which he had been balancing on his lap, on a median strip near Golf Road and Oakton Community College.

During the drive, Stengel made two calls on his cellular phone. The second call was to Dr. Solecki. Stengel purposely left on the speaker for the inception of the conversation so that C.B. might hear Dr. Solecki’s habit of addressing Stengel as “doctor.”

Once at the restaurant, Stengel ordered two glasses of wine. He believes they both finished their entire glass of wine. Throughout lunch the two engaged in conversation, Stengel stating, falsely, that he worked at St. Mary’s and St. Francis hospitals and C.B. deprecating her boyfriend as a “hamburger flipper” at a fast-food restaurant who was going nowhere. Stengel ordered two pieces of cheesecake to go for dessert.

When they left the restaurant Stengel drove to a place called Wally’s. They arrived at Wally’s about 2:30 p.m. Stengel introduced C.B. to Pete Búhelos, the owner of Wally’s. Stengel jokingly said to Pete that he would one day marry C.B.

Once back at C.B.’s apartment, C.B. willingly invited Stengel in. Stengel and C.B. sat down on the couch and talked. C.B. eventually produced some cocaine, which they shared. C.B. and Stengel began fondling, petting and grabbing at one another. These acts culminated in sexual intercourse. Stengel maintains that the sexual intercourse was totally consensual.

After sexual intercourse, Stengel and C.B. talked in bed. Stengel commented about a Tom Cruise poster hanging in the bedroom. C.B. responded that the Hustler magazines sitting on the living room table were her boyfriend’s way of getting even with her for the poster hanging in the bedroom. C.B. inquired as to a follow-up date. Stengel kept putting her off. Finally, Stengel disclosed that he had a serious girlfriend and he was not a doctor.

C.B.’s version of the events of December 5, 1986, is very different from Stengel’s. C.B. testified that during a conversation at the bar she worked at she told Stengel that her driver’s license had been revoked for drunk driving. Stengel responded by saying that his brother was an attorney and could help her regain her license. Stengel offered to discuss, over lunch, the possibility of his brother helping C.B. C.B. did not have money to pay an attorney and thought Stengel was doing a favor for her.

C.B. wrote her phone number and address on a napkin and gave it to Stengel. At the time C.B. was living with her boyfriend, Jeff. C.B. did not tell Jeff that she planned to meet Stengel that day. C.B. considered the lunch a business luncheon. She did not consider the lunch to be a romantic or social date. C.B. testified that Stengel knew she had a boyfriend. She had pointed her boyfriend out to Stengel one night when he had come into the bar she worked at.

Stengel arrived at C.B.’s apartment approximately 20 minutes late. The two visited in the living room of C.B.’s apartment for 5 to 10 minutes. C.B. denies that Stengel had brought a bottle of champagne. C.B. and Stengel left the apartment and drove to the Fountain Blue restaurant for lunch. Stengel made two phone calls on his cellular phone while en route to the restaurant. One call was to Dr. Solecki.

Once at the restaurant Stengel ordered two glasses of wine. Stengel drank his glass of wine, while C.B. only had a few sips of hers. Stengel told C.B. that his brother was a well-known attorney, his brother could definitely help her, and that defendant would definitely discuss the matter with his brother. C.B. never got the brother’s name. She alleges she is bad with names and never would have remembered it anyway. At trial C.B. stated “It was more like he was a friend, and he was doing me a favor, and I didn’t doubt him at that point.”

When they left the restaurant C.B. told Stengel that she started work at 4 p.m. After Stengel and C.B. left the restaurant, Stengel drove to a hot dog stand so that he could introduce C.B. to the owner, Pete. Stengel introduced C.B. and made a comment about C.B. being a “sweetie.” Stengel didn’t touch C.B. and C.B. didn’t touch Stengel. Stengel and C.B. left Wally’s to return to C.B.’s apartment. During the ride home Stengel told C.B. to move over from the passenger seat and sit next to him. C.B. claims that Stengel grew irritated when she refused to move over. C.B. did not want Stengel to come upstairs; however, after Stengel’s insistence that he needed to use the bathroom she agreed to let him in.

Once inside Stengel emerged from the bathroom and grabbed C.B. C.B. started to scream when he grabbed her. C.B. told Stengel to let her go and leave. Stengel threw C.B. on the bed.and pinned her with his body. C.B. was 5 feet 4 inches tall and weighed 105 pounds. Stengel was 6 feet 1 inch tall and weighed 190 pounds. C.B. struggled unsuccessfully to get away. Stengel ripped down C.B.’s nylons, leaving the nylons on one leg. In one motion Stengel pulled down C.B.’s elasticwaisted skirt and elastic-waisted slip. Stengel unzipped his pants. He inserted his penis in C.B.’s vagina for approximately 30 seconds.

During the struggle C.B. received two superficial scratches on her face and a swollen lip. C.B. felt Stengel’s watch against her face. Stengel bit her lip trying to insert his tongue in her mouth. When Stengel released C.B. she jumped off the bed. She still had on her sweater, bra and one shoe. She tried to cover the rest of her body with her skirt. Stengel apologized and said he did not mean it. He asked for a hug and C.B. obeyed. He told her to take a shower and apologized again. Stengel left C.B.’s apartment.

At this time C.B.'s underwear and nylons were on the floor. C.B. was in shock. She went into the bathroom and wiped her vagina with a Kleenex. When asked if she remembered touching herself with anything else, C.B. responded, “Maybe my underwear, I’m not sure.”

C.B. was crying. She looked out the window to make sure Stengel left. She saw him go out of the apartment building and watched him get in his car and pick up the phone. The phone rang but she did not answer it. Not knowing what to do, C.B. took a shower. She didn’t really wash herself, but rather stood in the shower crying. When she got out of the shower she called her boyfriend, Jeff. A few moments later Stengel called and apologized.

Jeff came home and asked what had happened. C.B. explained who she had been out with. She had told Jeff that morning that she was trying to do something about her DUI but it was to be a surprise for him.

C.B. gave Jeff Stengel's number. Jeff tried to call him. Jeff then made a number of calls, several to directory assistance and a call to try and find out if Stengel was a doctor. Jeff then called the police. The call to the police was placed approximately 10 minutes after Jeff came into the apartment.

C.B.’s boyfriend, Jeff, testified on C.B.’s behalf. He testified that in December of 1986 he was living with C.B. On December 5, 1986, while he was at work, he received a phone call from C.B. at approximately 3 p.m. C.B. was crying and having trouble talking. She asked him to come home right away. A few minutes later Jeff left work and drove home.

When he first walked in the apartment C.B. was in a towel, her hair still wet from a shower and she was shaking. She had scratches on her face and wrists, bruises under her eyes, and a bruise on her lip. C.B. was hysterical. Jeff asked C.B. what had happened and she mumbled, rape. C.B. told Jeff that she got a bruise under her eye when Stengel was holding her down. C.B. said that she tried to escape but Stengel kept putting her back and Stengel’s cuffs kept hitting her face.

C.B. told Jeff bits and pieces of what had happened. Jeff told her that they should probably call the police. C.B. refused. She didn’t want anyone to know. Jeff told C.B. she should call her parents. She still did not want anyone to know. C.B. then told him that if they were going to tell anybody, that they should tell the police.

C.B. had told Jeff that the guy was a doctor, and Jeff figured that he wanted to talk to him. Jeff called directory assistance and then the hospital. The hospital had no doctor by the name of Mark Stengel. Jeff made these calls before he called the police.

Jeff testified that in December 1986 C.B. was earning more money than he was. To this day C.B. earns more than Jeff. Jeff recalled C.B. mentioning Stengel’s name several days prior to the incident. He also recalled that a few days before the incident, C.B. mentioned that a doctor had given her a $10 dollar tip.

C.B. told Jeff that Stengel had given her a note with his phone number and name on it. C.B. did not tell Jeff that she had a date with Stengel. However, the morning of December 5, 1986, she told Jeff that she was doing something about her DUI and that this was a surprise for him.

In response to a question as to whether he had any Hustler magazines Jeff answered, “Yes, maybe one.” Jeff stated that C.B. had a Tom Cruise poster in their bedroom. Jeff testified that he did not have drugs in the house on December 5, 1986.

Stengel’s girlfriend, Monica, testified that after the preliminary hearing on January 16, 1987, she drove with Stengel to the area of Golf Road and Oakton Community College and recovered a dirty champagne bottle lying in the median in the snow.

The parties stipulated to the testimony of Lisa Haley, a laboratory scientist at Northern Illinois Police Crime Laboratory. Ms. Haley had occasion to examine two pieces of Kleenexes. She examined both of them microscopically, and in her opinion, she observed the presence of spermatozoa cells on the Kleenexes. Ms. Haley had occasion to examine pantyhose and a shoe. Her test revealed the presence of sperm on the pantyhose. Ms. Haley had occasion to examine a pair of pink panties. She cut holes in the panties and conducted a microscopic analysis of the holes. In Ms. Haley’s opinion she observed spermatozoa cells on those samples.

Although lab reports were taken and other demonstrative evidence secured, the only real evidence of a forceful or consensual penetration was the respective testimony of Stengel and C.B.

For the following reasons, we must affirm the decision of the trial court.

Stengel’s primary claim on appeal is that he was not proven guilty of the crime for which he was convicted beyond a reasonable doubt. The claim is based on the contention that C.B.’s testimony concerning her lack of consent was insufficient to prove Stengel guilty beyond a reasonable doubt. First, the concept of what evidence is sufficient to establish guilt beyond a reasonable doubt in a criminal sex case has changed over the years. This change has produced confusing and seemingly contradictory rules. It has been held that in rape cases reviewing courts are especially charged with the duty of carefully reviewing the evidence. (People v. Qualls (1961), 21 Ill. 2d 252, 171 N.E.2d 612.) This concept is based on the fact that a rape charge is easy to make but difficult to defend. (People v. Palmer (1984), 125 Ill. App. 3d 703, 466 N.E.2d 640.) Courts have held that an accused’s guilt in a criminal sex case must be so thoroughly established so as to exclude every other reasonable hypothesis. (People v. Jenkins (1983), 117 Ill. App. 3d 33, 452 N.E.2d 867.) Further, at one time in rape cases a complaining witness’ testimony had to be corroborated. (People v. Ritchie (1948), 401 Ill. 542, 82 N.E.2d 344.) These rules would indicate a reversal in this case since Stengel’s version of the event discloses a cozy sexual interlude gone awry when C.B. discovered that he was not the man he said he was.

However, in any critical review of evidence in a criminal case after conviction, an appellate court must view the evidence in a light most favorable to the prosecution, and after viewing the evidence in such a light, if proof of the essential element of a crime supports a conviction an appellate court must affirm. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) If the testimony of the complaining witness is clear and convincing, that testimony alone will be sufficient. (People v. Raker (1979), 75 Ill. App. 3d 975, 394 N.E.2d 852.) Clear and convincing evidence is not synonymous with uncontradicted or unimpeached testimony. (People v. Palmer (1984), 125 Ill. App. 3d 703, 466 N.E.2d 640.) If the victim’s story is consistent and any discrepancies do not detract from its reasonableness, the victim’s testimony can be clear and convincing. People v. Thompson (1978), 57 Ill. App. 3d 134, 140, 372 N.E.2d 1052, 1057.

Currently, relative to the issue of force, failure to cry out or failure to resist does not establish consent in sex cases if the woman is threatened or in fear of being harmed. Even disrobing and a plea not to be hurt have been held insufficient to negate force or lack of consent. People v. Leonhardt (1988), 173 Ill. App. 3d 314, 527 N.E.2d 562.

Stengel argues that the physical evidence in this case did not support C.B.’s claim of rape. There was no evidence of unusual trauma inconsistent with ordinary sexual intercourse. The medical evidence reflects there were no hematomas, her pelvis, vagina, and external genitalia appeared normal and without bruises, and her cervix was free of abrasions. “However, medical evidence of physical injury is not necessary to prove that an adult woman was forced to have sexual intercourse, and the lack of medical evidence of physical injury does not establish that she consented to have sexual intercourse.” People v. Leonhardt (1988), 173 Ill. App. 3d 314, 321-22, 527 N.E.2d 562, 567.

A strange feature of this case is that Stengel’s initial lawyer was a member of one of the State’s most distinguished law firms, while at the same time C.B. was employed by that firm as a secretary. The record contains testimony of a representative of the firm who testified that when the firm learned of the preceding facts, the firm ceased representation of Stengel and C.B. was dismissed from her employment with the firm. The firm representative recalled C.B. asking if she could keep her job if she dropped the case. The representative said that he could not talk to her about the matter any further. C.B. maintains that she never made the statement and she didn’t like working for the firm anyway.

Stengel offered this testimony as evidence indicating C.B.’s version of events of the afternoon of December 5, 1986, was false. Stengel especially points to the fact that C.B. denies the statement and claims she didn’t like working for the firm. However, the testimony also reveals that C.B. was called into the managing partner’s office with no prior indication she was to be terminated. An equally valid inference was that C.B. was in shock. The representative’s testimony shows that within a matter of 5 to 10 minutes C.B. was terminated, handed a final paycheck, and asked to leave. We do not agree with Stengel’s argument that the statement C.B. made at this time proves C.B. was lying about the events of December 5, 1986.

Whether the evidence is direct or circumstantial, the standard to be used in reviewing the sufficiency of evidence in all criminal cases is proof beyond a reasonable doubt. (People v. Byrd (1990), 206 Ill. App. 3d 996, 565 N.E.2d 176; People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.) “ ‘We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt.’ ” (People v. Byrd, 206 Ill. App. 3d at 1006, quoting People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732.) There is no legitimate reason to place additional requirements on the victims of sex crimes regarding how persuasive their testimony must be merely because of the nature of the crime. (People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732.) It is the function of the trier of fact, in this case the trial judge, to determine the accused’s guilt or innocence, and a reviewing court will not reverse the conviction unless the evidence is too improbable as to justify a reasonable doubt of the defendant’s guilt. (People v. Phillips (1989), 127 Ill. 2d 499, 509, 538 N.E.2d 500.) It is not the function of a reviewing court to retry the defendant. People v. Phillips (1989), 127 Ill. 2d 499, 509, 538 N.E.2d 500.

The rule of proof beyond a reasonable doubt is whether C.B.’s testimony concerning Stengel’s force or her consent was clear and convincing. Despite the inconsistencies, from the cold record before us, C.B.’s testimony concerning the actual acts that constituted the crime was clear and convincing. Based on the applicable standard of review, this court is bound to affirm the trial judge’s finding of guilt. The trial judge was the one who heard the testimony and viewed the demeanor of the witnesses. The trial judge concluded that C.B.’s testimony, rather than Stengel’s, was more credible. We cannot say that the evidence was so improbable as to warrant a reversal of Stengel's conviction. Thus, we find that the evidence was sufficient beyond a reasonable doubt to support Stengel’s conviction.

Stengel alleges that the trial court’s undue restriction of defendant’s cross-examination of C.B. denied him a fair trial. The defense speculated that C.B. accused Stengel of raping her after she learned he was not a doctor, having gone out with him behind her boyfriend’s back because she thought Stengel had money. To establish this theory of defense and deprecate the credibility of C.B., the defense sought to show that C.B. had a history of dating men for money and that C.B.’s story about the December 5, 1986, lunch being a “business” luncheon was not true.

Stengel’s first complaint is that the trial judge refused to allow cross-examination regarding the uniform C.B. wore at the bar where she worked. On that issue the following colloquy took place:

“MR. MONICO [Defense Counsel]: Now, your uniform when you worked there was a low-cut tight body stocking, is that right?
MR. PAYNTER [the State]: Objection. That’s irrelevant.
THE COURT: Sustained.
MR. MONICO: Your uniform where you were a cocktail waitress was different than the uniform where the waitresses worked in the restaurant?
MR. PAYNTER: Objection. Irrelevant.
THE COURT: Mr. Monico, why is that relevant? ***
MR. MONICO: I think it’s relevant to what she was doing, in terms of her relationship with Mark. It’s part of their relationship, how she is dressed when he saw her.
THE COURT: How?
MR. MONICO: It affects how they perceive each other.
THE COURT: It’s kind of stretching it.
MR. MONICO: I’ll withdraw it.”

C.B. was not at work at the time she alleges she was raped. She was not wearing the uniform that she wore at work when she went to lunch with the defendant. The clothes that C.B. was wearing at the time of the rape were admitted into evidence. She was wearing a pink turtleneck sweater and a black and white checkered skirt. We feel that the trial court correctly ruled that C.B.’s work uniform was irrelevant to acts that took place in her apartment on December 5,1986.

Defendant urges that he was not allowed to cross-examine C.B. regarding her cocaine use. Defense counsel asked C.B. whether she knew what cocaine was and had she ever seen it. C.B. responded yes to both questions. Subsequently, the trial court sustained objections to the questions “Did you ever use it?” and “How many times have you seen it?” Following these questions defense counsel inquired if C.B. had drugs in her house on December 5, 1986. C.B. answered that she did not. She said that she did not have cocaine and marijuana in her house, and she denied talking to Stengel about cocaine that day.

In reviewing the record we find that defense counsel was permitted to ask questions about possible cocaine use on the date of the alleged rape. The trial court did not allow questions about possible cocaine use at an unspecified date. We do not find this to be an abuse of discretion.

Defendant claims that he was not allowed to inquire whether the police were notified before or after C.B. discovered that defendant lied to her about being a doctor. Defense counsel asked C.B. “Isn’t it true that it was only after your boyfriend called the hospitals, and you found out that there was no Dr. Stengel there, that you decided to call the police?” The State objected to this question, and the trial court sustained the objection. However, following the objection, defense counsel asked C.B. a number of questions regarding the calls Jeff made attempting to find out if Stengel was a doctor or where he worked. After answering this line of questioning C.B. ultimately stated, “Yes, He’s not a doctor, it’s true. He doesn’t work at the hospital, yes.” Subsequently defense counsel asked, “It’s only after that that you decided yes, let’s call the police?” C.B. responded, “No, that’s not what made me call the police. Maybe it happened in that order, which it did, but that was not the factor.” Thus, C.B. testified that finding out defendant was not a doctor was not a factor in the decision to notify the police that she had been raped.

Defense counsel asked C.B. how long she had worked at a law firm before she began dating an attorney there. The court sustained an objection by the State. Defense counsel asserts that the inquiry into C.B.’s dating habits after the rape was material because the victim had a history of quickly attaching herself to men with money. The trial court ruled correctly. C.B.’s dating behavior months after the rape was too remote to be relevant.

Defendant alleges the trial court erred when it prevented defendant from asking C.B. if she stopped visiting her boyfriend in Memphis when his business there was failing. Defense counsel sought to convince the trial judge that the fact that the victim did not visit her boyfriend months after the rape was relevant to whether or not C.B. consented to sex with Stengel on December 5, 1986. We agree with the trial court and find that whether or not C.B. visited her boyfriend in Memphis is not relevant to a decision as to whether or not Stengel raped her.

Defendant argues that it was error that he was not allowed to ask the victim whether she made more money than her live-in boyfriend. C.B. testified that she had discussed the fact that her boyfriend worked at a hot dog stand. C.B. did not know if she told Stengel that she was making more money than her boyfriend was making. She further testified that she would not tell Stengel that she had to pay the majority of the rent because she was making more money. Defense counsel then inquired, “It was true, wasn’t it?” The victim answered, “No.” The State objected on the basis that the question was irrelevant and argumentative.

“The activities under scrutiny by a trial court in a case alleging sexual assault must relate to the exchange between the complainant and the person accused, that is whether sexual attentions were forced upon another without consent.” (People v. Sandoval (1990), 135 Ill. 2d 159, 176, 552 N.E.2d 726.) The Illinois Supreme Court has long noted that the latitude allowed on cross-examination and rebuttal is a matter within the sound discretion of the trial court; a reviewing court will not interfere unless there has been a clear abuse of discretion resulting in a manifest prejudice to the defendant. People v. Sandoval (1990), 135 Ill. 2d 159, 194, 552 N.E.2d 726; People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267; People v. Peter (1973), 55 Ill. 2d 443, 451-52, 303 N.E.2d 398.

Upon review of the record, we find the trial court did not abuse its discretion and unduly restrict cross-examination resulting in prejudice to the defendant. C.B.’s dating habits since December 5, 1986, whether or not she made more money than her boyfriend and the uniform she wore at work have no relevance in a trier of fact’s determination as to whether or not C.B. had been forced to have sex with the defendant.

Finally, Stengel alleges that he did not receive a fair and impartial bench trial when the trial judge indicated, after announcing his verdict, that he felt defendant’s counsel took a bench trial to take advantage of their friendship. Stengel asserts that the court perceived his election of a bench trial as some kind of abuse, a concern that put the judge at risk of inappropriately exaggerating his impartiality until he may have leaned over backwards to avoid the appearance of favoring defense counsel’s client. Stengel urges that his conviction should be reversed because the trial judge should have recused himself. This court finds defendant’s charges destitute of substantive merit. Nothing in the record suggests that the trial judge was biased as a result of any friendship with defense counsel or that he took a slanted view of the evidence based on that friendship. No case law is cited to support the suggestion that a trial judge should recuse himself merely because of a friendly relationship with counsel. If that were the case, in every Illinois case outside of Cook County, almost every trial judge would have to recuse himself. In the less populated counties, the trial judge is often friendly with one or both of the attorneys before him.

The trial judge and defendant’s attorney apparently were associated with each other through bar association and other law-related organizational activities. In a post-trial motion, defense counsel stated that the trial judge had told other defense attorneys and prosecutors that defense counsel had tried to take advantage of his friendship with the judge by requesting a bench trial. The trial judge stated that he did not remember making such a statement, but that he may have instead remarked regarding defense counsel’s outburst when the verdict was announced.

When this question was raised, the trial judge immediately transferred the matter for reassignment to the chief judge. The chief judge assigned another judge to conduct a hearing on the matter. Thomas Knitter, an assistant public defender, testified that he was present when the trial judge made a statement to the effect that defense counsel took advantage of his friendship in having a bench trial in the Stengel case. Knitter testified that when making this statement the judge displayed a copy of a Justinian Society newsletter, which contained a photograph of the judge and defense counsel together at a function. Knitter could not recall the exact words of the trial judge nor could he recall who was present. Knitter further testified that the judge used a normal tone of voice and did not appear upset or angry.

The trial court denied defendant’s recusal claim, finding that whatever the remark actually was, it had no bearing on the judge’s ruling in the case. We agree with the trial court and deny defendant’s request to reverse his conviction based on the failure to grant his post-trial motion.

Accordingly for the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK GABALA, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0487
    Opinion filed March 8, 1991.

      Samuel J. Cahnman, of Chicago (Susan Cottrell, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Edward J. Barrett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Mark J. Gabala, pleaded guilty to charges of battery and disorderly conduct arising from two unrelated offenses. He was sentenced to one year’s conditional discharge, 16 weekends in the Cook County Department of Corrections, and a $10 fine. The trial court subsequently denied defendant’s motion to withdraw his guilty plea. Defendant appeals, contending that he should have been allowed to withdraw his guilty plea; the charges should have been severed before trial, or alternatively, he should have been granted a continuance; and that he was denied effective assistance of counsel.

On October 25, 1987, defendant was charged with the offenses of battery and resisting a peace officer, in violation of sections 12—3(a) and 31—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 12—3(a), 31—1, respectively). On November 24, 1987, a public defender was appointed to represent defendant. Two continuances were granted on those offenses.

On February 2, 1988, defendant was charged with disorderly conduct in violation of section 26—1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 26—1(a)(1)). In a separate incident, defendant was also charged on that date with criminal damage to property in violation of section 21—1(a) (Ill. Rev. Stat. 1987, ch. 38, par. 21—1(a)). On February 23, 1988, the court appointed a public defender. The cases against defendant arising out of the October and February offenses were consolidated, but the record does not reflect which party requested the consolidation.

Defendant was granted a continuance to March 22, 1988. The cases were again continued on August 17 and September 19, 1988, because defendant appeared late in court. The court issued bond forfeitures and warrants on those occasions. They were later withdrawn when defendant appeared. On October 26, 1988, the parties agreed to set November 16 as the trial date.

On November 16, 1988, defense counsel indicated that defendant was ready to proceed to trial on the February charges but requested a continuance on the October offenses because there were witnesses who were not present. The trial judge refused to grant the continuance, stating there was no question that defendant knew the case would be heard on November 16.

Pursuant to Rule 402 (107 Ill. 2d R. 402), the State, defendant, and assistant public defender entered into plea negotiations. The State offered to drop the resisting arrest charge arising out of the October offenses and the criminal damage to property charge arising out of the February arrest, in exchange for defendant’s plea of guilty to the battery and disorderly conduct charges. The State’s recommendation as to punishment was the sentence eventually imposed by the trial judge.

Prior to accepting defendant’s guilty plea, the trial court informed him that by pleading guilty he was waiving his right to a jury trial or bench trial, his right to confront witnesses, and his right against self-incrimination. Defendant stated that he understood he was waiving those rights by pleading guilty. Defendant also stated there were no threats or force made against him to induce the plea. Defendant indicated that he was making the agreement of his own free will.

The parties stipulated that the court had heard a sufficient factual basis for the battery and disorderly conduct offenses, and defendant pleaded guilty after having been admonished as to the maximum and minimum sentences in each case. The trial court accepted the plea, found defendant guilty of battery and disorderly conduct, and sentenced him. Following the sentencing, the trial court informed defendant that he could remove the guilty plea within 30 days by filing a petition setting forth the grounds as to why that plea should be withdrawn, and that if the court would not allow the guilty plea to be withdrawn, an appeal could be sought.

Defendant filed a timely pro se motion to withdraw his guilty plea, contending that he was not informed that his trial was scheduled for November 16, and that there were witnesses important to his defense who were not present. The public defender subsequently amended that motion. The court denied defendant’s motion to withdraw the guilty plea, finding that a factual basis had been established for each, offense, and that defendant was properly admonished before pleading guilty.

On appeal, defendant, represented by appointed counsel, contends that the trial court erred in refusing to allow him to withdraw his guilty plea. Additionally, defendant argues that the trial court erred in refusing to allow severance of the charges, or alternatively, by not allowing the October charges to be continued to give defendant the opportunity to procure witnesses vital to his defense. Defendant further argues ineffective assistance of counsel because of counsel’s failure to: (1) withdraw when a per se conflict of interest arose; (2) to request appointment of other counsel when a per se conflict of interest became apparent; (3) to investigate, interview or subpoena witnesses vital to his defense; (4) move to sever the separate and unrelated cases; and (5) file a certificate in compliance with Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)).

It is well established that the decision to allow the withdrawal of a plea of guilty, once entered, is within the sound discretion of the trial court. (People v. Clem (1979), 72 Ill. App. 3d 163, 390 N.E.2d 615; People v. Linden (1975), 27 Ill. App. 3d 45, 325 N.E.2d 809; People v. Farnham (1972), 8 Ill. App. 3d 722, 290 N.E.2d 19.) Permission to withdraw a plea of guilty should be granted not as a matter of right, but rather if necessary to correct a manifest injustice based on the facts of the case. (People v. Linden, 27 Ill. App. 3d 45, 325 N.E.2d 809, citing People v. McNair (1971), 133 Ill. App. 2d 832, 272 N.E.2d 286.) The defendant bears the burden of proof. (People v. Brown (1973), 11 Ill. App. 3d 362, 296 N.E.2d 599.) The trial court’s determination will not be disturbed unless the facts show that the plea of guilty was entered under a misapprehension of law or fact, that the defendant has a defense worthy of consideration, or that there is a doubt of the guilt of the accused and the ends of justice would be better served by a trial. People v. Clem, 72 Ill. App. 3d 163, 390 N.E.2d 615.

Defendant contends that he entered his guilty plea only because he felt “his back was to the wall” and that “without witnesses that were vital to his defense, he really would get nowhere at a trial.” However, defendant has failed to identify witnesses or provide the substance of their testimony if called upon to testify in his defense. Defendant’s vague assertions of witnesses critical to his defense do not rise to the level of a defense worthy of consideration because it is simply not supported by any evidence.

Similarly, the record does not support defendant’s assertions that he was coerced into pleading guilty. The trial judge properly admonished defendant that by pleading guilty he was waiving his right to a trial, to confront witnesses, and against self-incrimination. Defendant clearly manifested his assent that he was waiving those rights. The trial judge also informed defendant of the maximum and minimum sentence in each case and that he had the right to petition to remove the guilty plea or appeal.

Therefore, we conclude that defendant entered into the plea negotiations with the State willingly and voluntarily, and was fully aware of and understood the terms of the plea agreement. Defendant’s guilty plea was not entered as a result of misapprehension of the law or fact. The trial court acted properly in denying defendant’s motion to withdraw his guilty plea.

Defendant argues that the matters against him should have been severed before trial. However, the decision to consolidate separately charged offenses is within the discretion of the trial court. (People v. Holveck (1988), 171 Ill. App. 3d 38, 524 N.E.2d 1073; People v. Carmack (1977), 50 Ill. App. 3d 983, 366 N.E.2d 103.) We do not find that the consolidation of the October and February charges prejudiced defendant. Accordingly, we conclude that the trial court acted well within its discretion and in the interest of judicial economy in consolidating the matters prior to trial.

Defendant next asserts that the trial court should have granted his request for a continuance of the October charges. This court has held that the decision whether to allow a continuance for the purpose of obtaining the presence of a witness is within the sound discretion of the trial court and will not be disturbed on appeal without a showing of a clear abuse of discretion. People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635.

In this case, the trial court’s decision not to grant defendant’s request for a continuance cannot be characterized as an abuse of discretion. Defendant had already been granted numerous continuances on the October charges, which occurred over one year prior to the trial date. In addition, bond forfeitures had been entered on three previous occasions when defendant appeared late in court. On October 26, 1988, the parties expressly agreed in defendant’s presence that the trial would be held on November 16. Thus, defendant had sufficient notice to prepare his witnesses and have them available for trial on that date.

Defendant’s final argument concerns the ineffective assistance of counsel allegedly rendered by the assistant public defender.

In order to prevail under a claim of ineffective assistance of counsel, a defendant must prove two elements: (1) that his attorney failed to perform as a reasonably competent attorney, and (2) there exists a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

Defendant argues that the public defender should have withdrawn because a per se conflict of interest arose when the public defender continued to represent him while he attempted to withdraw his guilty plea. It is recognized that it is reversible error to appoint a public defender to represent a post-conviction petitioner when the petition for relief includes an allegation of ineffective representation by a member of the same public defender’s office which represented defendant at the time of his conviction. People v. Terry (1970), 46 Ill. 2d 75, 262 N.E.2d 923; People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169.

We find, however, that this case is distinguishable from Smith and Terry because defendant failed to raise the issue of ineffective assistance in his pro se motion to withdraw the guilty plea, nor was it raised in the amended motion filed by the public defender. Indeed, review of the record indicates that the trial judge specifically asked defendant whether he wanted the public defender to represent him at the motion to withdraw the guilty plea, to which the defendant responded, “Yes.” Defendant’s bare assertions, standing alone, are insufficient to show that a per se conflict of interest existed, or that counsel other than the public defender’s office should have been appointed to represent defendant. The fact that defendant was represented by the same counsel during both the guilty plea and the withdrawal of the guilty plea proceedings is harmless error. People v. Taylor (1977), 48 Ill. App. 3d 925, 363 N.E.2d 643.

Defendant contends that the public defender failed to investigate, interview and subpoena witnesses vital to his defense. However, as previously noted, it does not appear from the record that there were any identifiable witnesses whose testimony may have been beneficial to his defense. Defense counsel is under no duty to manufacture a defense if none exists. People v. Greenlee (1976), 44 Ill. App. 3d 536, 358 N.E.2d 649, citing People v. Davis (1974), 16 Ill. App. 3d 846, 306 N.E.2d 897.

Similarly, defendant’s argument that the public defender should have had the cases severed prior to trial fares no better. As previously discussed, the decision to consolidate separately charged offenses is within the discretion of the trial court. (People v. Holveck, 171 Ill. App. 3d 38, 524 N.E.2d 1073; People v. Carmack, 50 Ill. App. 3d 983, 366 N.E.2d 103.) Defendant has not demonstrated that the consolidation of the October and the February offenses was an abuse of the trial court’s discretion.

Defendant also assigns as error the failure of counsel to file a certificate of compliance in accordance with Rule 604(d), or a supporting affidavit.

This court has insisted upon strict compliance with Rule 604(d), ruling that it is reversible error for the trial court to conduct a hearing on a defendant’s motion to withdraw a plea of guilty when no transcript of the guilty plea proceedings has been provided to the defendant. (People v. Lyell (1982), 109 Ill. App. 3d 819, 441 N.E.2d 78, citing People v. Sorensen (1977), 49 Ill. App. 3d 984, 365 N.E.2d 171.) The filing of a certificate of compliance under Rule 604(d) is mandatory, and, generally, the trial court does not hold a hearing on the motion to withdraw a plea of guilty until this certificate has been filed. (People v. Dean (1978), 61 Ill. App. 3d 612, 615, 378 N.E.2d 248.) “However, the rule has been relaxed somewhat in situations in which the ‘court could determine from the record before it that failure to comply was harmless error.’ ” People v. Lyell, 109 Ill. App. 3d at 821-22, 441 N.E.2d 78, quoting People v. Lange (1978), 59 Ill. App. 3d 603, 604-05, 375 N.E.2d 919.

In People v. Norris (1977), 46 Ill. App. 3d 536, 361 N.E.2d 105, this court held that the certificate requirement is applicable in all cases; however, substantial compliance with the rule in some cases is acceptable. While it is undisputed that the public defender in this case failed to file a certificate or affidavit pursuant to Rule 604(d), review of other factors demonstrates substantial compliance with that rule.

The amended motion to withdraw the guilty plea filed by the public defender repeated the assertions in defendant’s pro se motion (that he was not ready for trial and should have been granted a continuance for the October offenses because of the absence of witnesses important to his defense) as well as defendant’s other claim on appeal that the cases against him should have been severed prior to trial. Again, the trial judge specifically questioned defendant whether he wanted to adopt that motion, to which the defendant responded affirmatively. Finally, the record indicates that at the post-trial motion to withdraw the guilty plea, the public defender had the transcript from November 16, 1988, the day the defendant pleaded guilty.

In People v. Evans (1977), 46 Ill. App. 3d 689, 690, 361 N.E.2d 77, this court held that counsel’s failure to file a certificate pursuant to Rule 604(d) was harmless error where:

“The record shows that appointed counsel on the motions subsequent to the plea adequately represented the defendant, had examined the record and court file, and amended defendant’s pro se motion to withdraw his plea so as to give it a more solid legal basis. While the formal filing of the certificate does not appear in the record, every function of trial counsel contemplated by the rule was performed.”

We find that the public defender’s actions in this case demonstrate substantial compliance with the spirit of Rule 604(d),.and that the absence of the certificate of compliance is harmless error because it did not significantly affect the outcome of the case. Moreover, after review of the record, we find no additional facts which would have aided defendant in his motion. People v. Lyell, 109 Ill. App. 3d 819, 441 N.E.2d 78, citing People v. Lange, 59 Ill. App. 3d 603, 375 N.E.2d 919.

Accordingly, we conclude that defendant’s claim of ineffective assistance of counsel fails because he has not demonstrated that counsel failed to perform as a reasonably competent attorney, nor that the outcome of the trial would have produced a different result, as required by the Strickland standard.

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

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


author: JUSTICE McNULTY

text:
    BOARD OF EDUCATION OF THE CITY OF CHICAGO, Plaintiff-Appellant, v. ELI JOHNSON et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—3729
    Opinion filed March 8, 1991.

      Patricia J. Whitten and Camille E. Willis, both of Chicago, for appellant.
    Witwer, Burlage, Poltrock & Giampietro, of Chicago (James B. Dyke-house, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendants appeal from a final administrative review order of the circuit court of Cook County affirming the decision of the Illinois State Board of Education (State Board), which refused to sustain the Chicago Board of Education’s (Board) dismissal of defendant, Eli Johnson, a tenured teacher. The issue raised on appeal is whether the decision of the State Board was against the manifest weight of the evidence, contrary to law, and thus erroneously affirmed by the circuit court. We affirm the decisions of the Illinois State Board of Education and the circuit court.

On November 19, 1986, the Chicago Board of Education adopted a Board report charging defendant Johnson with conduct unbecoming a teacher, and requested his dismissal. Johnson was charged with administering and/or engaging in inappropriate and unprofessional physical contact with a student under his control. On November 20, 1986, Johnson was suspended without prior warning and without pay pending his dismissal. The Chicago Board of Education relied on the authority provided by the Illinois School Code, section 34—85 (Ill. Rev. Stat. 1983, ch. 122, par. 34—85), as justification for its dismissal of Johnson without prior warning. This statutory authority provides in pertinent part:

“No teacher or principal appointed by the board of education shall (after serving the probationary period of 3 years specified in Section 34 — 84) be removed except for cause.
* * *
Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher or principal shall be given reasonable warning in writing, stating specifically the cause which, if not removed, may result in charges.” Ill. Rev. Stat. 1983, ch. 122, par. 34—85.

Johnson requested and was granted an administrative hearing by the Illinois State Board of Education pursuant to section 34—85 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 34—85). Hearing Officer George Larney considered the following evidence.

Johnson had been employed by the Board as a teacher since 1962. During this time he had received 16 satisfactory ratings, one unsatisfactory rating, and three excellent ratings. During the academic years 1983-84 and 1984-85, Johnson taught fourth grade at Laura Ward Elementary School, where Nathaniel Longstreet was a student in his class.

On February 26, 1986, an incident occurred between Johnson and Nathaniel. Nathaniel testified before the hearing officer that sometime in the early afternoon, Johnson came over to his desk and picked him up two or three feet from the floor, carried him over toward the blackboard and dropped him. Nathaniel further testified that he fell on the floor, which was concrete covered with carpet. When Nathaniel stood up and went toward the door, Johnson ran over toward him, picked him up and threw him into the air. At the hearing, Nathaniel stated that he fell to the floor and hit his head on a flat piece of steel. When he got up, Johnson pushed him into a corner and punched him in the chest.

At that time, Nathaniel ran out of the room and down the stairs. He reported the above events to Ms. Griffin, the school community representative, who directed Nathaniel to stay with Mr. Young, another teacher, until his mother arrived at the school. By the end of the day, no contact had been made with Nathaniel’s mother, so he went home and told her what had occurred. Ms. Longstreet took Nathaniel to St. Anne’s Hospital, where he was examined by Dr. Pincham. X rays disclosed that Nathaniel had a possible fracture with a contusion (bruise) in the area of his ninth rib.

Nathaniel did not go to school the next day because he was having chest pains. Nathaniel returned to St. Anne’s Hospital one other time because he was having chest pains.

Two other students, Kashonda Jackson and Hártese Hilton, testified that they saw Johnson use physical force on Nathaniel on February 26, 1986. However, their accounts of what actually occurred differ from Nathaniel’s. Kashonda testified that Nathaniel refused to sit down and to stand in the corner as requested by Johnson, and further attempted to leave the classroom. She testified that when Nathaniel refused to stand in the corner, Johnson pushed him on the chest, with his open hand, into the corner. When Nathaniel tried to leave a second time, Kashonda stated that Johnson picked him up by the arm and leg and let him go. Nathaniel then fell to the floor, hitting his head.

Hártese Hilton, another student in Johnson’s class, testified that Nathaniel was angry about being asked to recite a poem and tried to leave the classroom. Hártese stated that he saw Johnson grab Nathaniel and push him into a corner when Nathaniel attempted to leave the classroom. When Nathaniel next attempted to leave the room, Hártese said that Johnson pushed him to the floor.

Another student, Harcus Lacey, who was present in Hr. Young’s classroom, said that he overheard Nathaniel tell Hr. Young that Johnson had pushed him down the stairs.

Johnson, himself, denied using any physical force on Nathaniel on February 26,1986.

Based on these testimonies, the hearing officer issued an opinion finding that although the Board had proved by a preponderance of the evidence that Johnson had “engaged in a degree of physical contact with Nathaniel,” a student under his supervision, it had not proved that Johnson was the source of the damage sustained by Nathaniel as alleged in the Board’s charge and specifications. The hearing officer reached these conclusions because of the discrepancies in testimony regarding the degree of physical contact between Johnson and Nathaniel, and the lack of probative evidence to establish that Nathaniel did not injure himself running out the door and running down two flights of stairs.

Since the hearing officer found that Johnson had not caused Nathaniel’s injuries, and because he found Johnson’s record otherwise unblemished, he determined that Johnson’s conduct was not irremediable. Since a finding of irremediability is required by section 34—85 (Ill. Rev. Stat. 1983, ch. 122, par. 34—85), before a tenured teacher may be dismissed without notice, the hearing officer found that the Board’s dismissal of Johnson without notice was improper and ordered Johnson reinstated with full back pay for the period of suspension.

The Board appealed the decision of the hearing officer of the State Board to the circuit court of Cook County. Judge Kenneth L. Gillis found that the hearing officer’s conclusions were supported by the evidence and affirmed the decision of the hearing officer.

Plaintiff and defendants agree that the authority to dismiss a tenured teacher lies in section 34—85 of the Illinois School Code. (Ill. Rev. Stat. 1983, ch. 122, par. 34—85.) According to this statute, no tenured teacher shall be removed except for cause, and written warnings must be given to a tenured teacher before dismissal, if the causes assigned for dismissal are considered remediable. Since no written warnings were given to Johnson, the Board’s jurisdiction to dismiss him depends upon a finding of irremediability.

The test for remediability has been established by the Illinois Supreme Court. (Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322, 326.) In Gilliland, the court established the following test:

“The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned him or her.” (67 Ill. 2d at 153, 365 N.E.2d at 326.)

A determination of irremediable conduct therefore requires that both parts of the Gilliland test be satisfied. First it must be shown that damage has already been done to the students, faculty, or school, and secondly, that the damage could not have been corrected by the teacher had he or she been warned that such conduct, if not corrected but instead allowed to recur, could lead to dismissal. The Board assumes the burden of proving, by a preponderance of the evidence, at the hearing before the State Board, that both parts of the Gilliland test have been met and the conduct complained of is in fact irremediable. (Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 497 N.E.2d 984.) While the parties agree on the standard for dismissal, the test for remediability and the standard of proof required to meet this test, they disagree as to whether the Board did in fact meet its burden of proof at the administrative hearing.

Review of the hearing officer’s determination is governed by the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3—101 et seq.). The scope of review is limited to whether the agency’s findings of fact are sustained by the evidence, and an agency’s findings of fact will not be disturbed unless they are manifestly against the weight of the evidence, or unless there is no substantial evidence to support them. Mohler v. Department of Labor (1951), 409 Ill. 79, 97 N.E.2d 762; Peterson v. Board of Trustees of the Firemen’s Pension Fund (1973), 54 Ill. 2d 260, 296 N.E.2d 721.

In the case at bar, the hearing officer found that the Board did not meet its burden as to either part of the test by the preponderance of the evidence standard as required by law and, thus, reversed the Board’s decision. The hearing officer found that although the Board had proved by a preponderance of the evidence that Johnson had engaged in inappropriate and unprofessional physical contact with Nathaniel, it had failed to prove by a preponderance of the evidence that defendant Johnson was the source of the damage sustained by Nathaniel on February 26, 1986, and therefore had not met its burden as to the first part of the Gilliland test. The hearing officer also observed that he had serious doubts that Johnson was the sole cause or even a contributory cause of the injury sustained by Nathaniel. The hearing officer came to these conclusions because of the conflicting testimonies as to how Nathaniel was hurt and also because there was no probative evidence that Nathaniel did not injure himself by running out the doorway and by running down two flights of stairs.

Even though the accounts of Kashonda Jackson, Hártese Hilton, and Marcus Lacey differ from the accounts of Nathaniel and Johnson (the hearing officer indicated that he did not believe Johnson’s testimony that there was no contact between him and Nathaniel), as to exactly what occurred on February 26, 1986, they all establish some degree of physical abuse to Nathaniel by Johnson. That physical injury did occur to Nathaniel was testified to by Dr. Pincham, who confirmed that Nathaniel had suffered a contusion to the chest.

As the hearing officer points out, there is no probative evidence to establish that Nathaniel did not injure himself in some other manner than by his contact with Johnson. This very fact, that no evidence was introduced to indicate any other ways in which Nathaniel might have been injured, strengthens the argument that Nathaniel was in fact injured by Johnson.

As stated earlier, the standard of proof required of the Board to prove damage to the student is “preponderance of evidence.” “Preponderance of evidence” is defined by Black’s Law Dictionary as “[ejvidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. ***” (Black’s Law Dictionary 1064 (5th ed. 1979).) Since no evidence was offered in opposition to the Board’s evidence, and since the credibility of the Board’s evidence is not at issue, the hearing officer had no option but to find, as was argued persuasively by the Board, that the uncontroverted evidence established that Johnson caused Nathaniel harm. The hearing officer’s failure to do so is against the weight of the evidence, and, therefore, his finding that Johnson did not cause damage to Nathaniel is incorrect.

In addition to finding that the Board did not meet its burden as to the first part of the Gilliland test (causing damage to Nathaniel), the hearing officer also found that the Board did not satisfy its burden as to the second part of the Gilliland test and had not proved that Johnson’s conduct was irremediable or uncorrectable even if given a prior warning.

Illinois case law has found that conduct is irremediable and no prior warnings need be given before dismissal when such conduct has occurred over long periods of time. (Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 365 N.E.2d 322.) In Gilliland, a teacher’s conduct was found to be irremediable. In that case, the complained-of conduct took place over a four-year period and involved extensive parental complaints, discussions with the principal and no improvement on the part of the teacher. The teacher was giving excessive homework to her class, was not explaining assignments, was shouting at her class, and was involved with spanking, shaking, and book throwing at the children. Other cases in which a teacher’s conduct has been held irremediable include a teacher’s continuous pattern of cruelty culminating in an incident where he held a child by the hair and slapped her 10 to 13 times until she was bleeding in the mouth; a sixth-grade teacher who continuously used a cattle prod to discipline students, and a teacher who was repeatedly warned by her principal, but continued to beat students with a curtain rod, an extension cord, and a club made out of five pieces of balsa wood nailed together and wrapped with masking tape. Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, 347 N.E.2d 270; Rolando v. School Directors of District No. 125 (1976), 44 Ill. App. 3d 658, 358 N.E.2d 945; Lowe v. Board of Education (1979), 76 Ill. App. 3d 348, 395 N.E.2d 59.

In two cases which are more factually similar to the case at bar, teacher conduct has been found to be remediable. (Swayne v. Board of Education of Rock Island School District No. 41 (1986), 144 Ill. App. 3d 217, 494 N.E.2d 906; Board of Education of School District No. 131 v. State Board of Education (1983), 99 Ill. 2d 111, 457 N.E.2d 435 (hereinafter referred to as Slavin).) Swayne involved a long-time teacher with an otherwise unblemished record and one incident of spanking with a yardstick. In Slavin, a long-time teacher used physical force to compel children to sit in desks, to stand in a line in the hall, and even once picked up a student who would not stop talking and threw him into a desk, bruising his ribcage and cutting him behind the ear. While the student did not seek medical treatment, he did leave school and showed his injuries to the principal the next day.

In evaluating these cases, the courts considered not only the severity of the injury suffered by the student, but also the teacher’s prior record and other warnings given to him, if any. In all of the cases where a teacher’s conduct was found to be irremediable, punishment was severe and premeditated (even if degree of injury was undocumented by medical records), numerous warnings had been given to the teacher, and the conduct had gone unchecked over a long period of time. Where teacher conduct was found to be remediable, injury or damage was less severe, no prior warnings had been given and the conduct involved was relatively short lived.

In the case at bar, Johnson, like the teachers in Slavin and Swain, had a record unblemished by prior warnings from his principal or prior complaints of corporal punishment from parents or teachers. Although the Board asserts that Johnson regularly used corporal punishment, this assertion is not established by the record, which shows no pattern of physical abuse, but only that Johnson used physical force to push children into their seats when necessary to intervene in a “fracas.”

In addition to considering a teacher’s history of prior warnings and prior misconduct, Illinois courts have also considered the severity of the damage suffered by the student in resolving the question of the remediability of the teacher’s behavior. (Slavin, 99 Ill. 2d 111; Swayne, 144 Ill. App. 3d 217.) In the cases where remediabilty was found, damage was not severe and medical treatment was not sought. In Swayne, the child did not miss school. In the case at bar, Nathaniel did suffer a contusion to the chest and possible fracture of a rib. He did seek medical treatment and did miss a day of school. Neither the hearing officer nor the circuit court considered this factor in its determination of remediability, but instead focused on Johnson’s otherwise unblemished record and the lack of a pattern of physical abuse.

A comparison of the facts of the case at bar with Slavin reveals a fairly similar injury to the students involved. Both Nathaniel and the student in Slavin suffered bruising to the chest, Nathaniel as a result of allegedly being punched and the other child from having been thrown into a desk. Both children missed school as a result of injury, the child in Slavin leaving school immediately after the incident and returning the next day, and Nathaniel by staying home the next day. While Nathaniel sought treatment at a hospital, the other child did not. The facts of these cases are so similar that it is likely that a court which found the Slavin injury not severe enough to affect a finding of remediability would also determine the injury in the present case not severe enough to affect a finding of remediability for Johnson.

Thus, although the Board contends that case law supports a finding of irremediability, the hearing officer determined that the Board had not proved by a preponderance of the evidence that Johnson’s conduct was irremediable and could not be corrected by a prior warning as required by the second part of the Gilliland test. The hearing officer’s determination in that regard is not against the manifest weight of the evidence.

The Board also argues that, in addition to case law dictating a finding of irremediability, since Johnson’s conduct violated a Board rule irremediability must be presumed. While it is true that Board Rule 6—21 does prohibit corporal punishment of any kind in the Chicago public schools (Board’s Ex. No. 3), there simply is no support for the argument that violation of a Board rule equals irremediability per se. While the Board does cite the case of Carter v. State Board of Education (1980), 90 Ill. App. 3d 1042, 414 N.E.2d 153, as support for this contention, Carter involved a situation where a teacher’s conduct was found to be irremediable not only because he employed corporal punishment in violation of a Board rule, but also because he failed to maintain discipline in the classroom, had two unsatisfactory warnings which failed to improve his conduct, and also destroyed his classes’ chances for a whole year’s education. (Carter, 90 Ill. App. 3d at 1044, 1047.) Therefore, Carter does not support a finding of irremediability per se. Moreover, there is support for the argument that some physical force may be used to maintain safety and discipline in the classroom (Ill. Rev. Stat. 1987, ch. 122, pars. 24—24, 34—84(a)), and it is arguable that Johnson was maintaining discipline.

Thus neither case law nor the per se irremediability theory supports the Board’s contention that Johnson’s conduct was irremediable and uncorrectable by prior warning. The hearing officer’s determination that the Board failed to meet its evidentiary burden of proving Johnson’s conduct to be irremediable is supported by the manifest weight of the evidence and is affirmed by this court.

The judgment of the circuit court is affirmed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.