author: JUSTICE HAASE JUSTICE GORMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN C. KARMENZIND, Defendant-Appellant.
    Third District
    No. 3—90—0438
    Opinion filed October 10, 1991.

      GORMAN, J., dissenting.
    Gary L. Morris, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

Defendant Melvin C. Karmenzind was charged with one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(b)(1)). The complainant in the case is the defendant’s son, C.K. The defendant pleaded not guilty, and his pretrial motion for a bill of particulars was denied. Tried before a jury, the defendant was found guilty. His two post-trial motions for a new trial were denied, and he was sentenced to 12 years’ imprisonment. Defendant appeals his conviction. We reverse.

Prior to the start of the defendant’s trial, Kelley Gott of the Illinois Department of Children and Family Services (DCFS) was examined in a voir dire proceeding to determine the propriety of admitting her testimony under section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10). The defendant’s objection to the admission of this testimony was denied.

At trial, Elsie Buhs, C.K.’s baby-sitter, testified that on or about September 6, 1989, she drove C.K. to school and he commented that his father, the defendant “does drugs and climbs trees.” Three hours later, Ms. Buhs returned to school to pick up C.K. and C.K. told her that the defendant had inserted a comb into C.K.’s rectum and his sexual organ into C.K.’s mouth. She also testified that C.K. told her that the defendant had done the same things to C.K.’s friend; that the defendant’s friend Terry had also participated by using a screwdriver handle and “something like a hammer” to sodomize C.K.; that the defendant had also used his sexual organ to sodomize C.K.; that the defendant had jumped on C.K., beaten him “around his private areas” and struck C.K.’s head against a wall.

On cross-examination, Ms. Buhs was unable to specify how many times she had discussed these allegations with C.K., but indicated that it “could have been” less than 10 times, but not more than one dozen times during the months of October through December 1989. She further testified that she had never observed the defendant mistreat C.K., that C.K. had blamed his father for a bruise on C.K.’s head and that C.K. had told lies to blame other people for his wrongs.

Ms. Gott of the DCFS testified that she held a videotaped interview with C.K. on September 19, 1989. She testified that C.K. told her about incidents involving a hammer and screwdriver. She further testified that C.K. told her that two incidents occurred when C.K. was two years old in Bartonville and Kingston Mines and C.K.’s friend and Terry were present at the alleged incidents, but Terry did not participate and fought with the defendant. Ms. Gott testified that C.K. used anatomically correct dolls to indicate various body parts involved and was only able to respond briefly to her questions.

During cross-examination, Ms. Gott clarified that C.K. did not discuss being sexually assaulted with anyone’s sexual organ, as Ms. Buhs had testified. Ms. Gott further testified that every time C.K. answered a question, she repeated it and C.K. provided no narration and never gave more than a two- or three-word answer. Ms. Gott further clarified that according to C.K., the alleged incident occurred twice; once in Kingston Mines and once in Bartonville. Terry did not participate, and the fighting between the defendant and Terry occurred on only one occasion.

C.K. was questioned in a voir dire proceeding to determine his competence as a witness. He twice identified his last name as Melvin, once after being corrected by the prosecutor. Upon asking C.K. to define “telling the truth” and “telling a lie,” C.K. repeated these two phrases back to the prosecutor. The prosecutor then indicated that it was the defendant’s burden to prove that the witness was incompetent and tendered the witness to the defendant.

On cross-examination, C.K. identified his correct last name. He denied ever telling a lie. He indicated that he told the whole truth and not half-truths. C.K. first testified that he had only told Ms. Buhs and his mother about the alleged incidents. After prompting by defense counsel, C.K. recalled telling a police officer and a Mr. Minton, but denied telling any doctors. He reported only telling Ms. Buhs about the alleged incidents once, and telling his mother 10 times. He also claimed to remember every event in his life back to the age of two, then denied this and reported that the alleged incidents took place when he was four years of age. The defendant objected to the qualification of C.K. as a competent witness. This objection was overruled.

Detective Steve Schmidt of the Peoria County sheriffs department testified next, again in a voir dire proceeding. He stated that he interviewed C.K. at his office on or about September 7, 1989. He also related testimony of his conversation with C.K. in which C.K. told him that the defendant and Terry had argued, that “they” used a screwdriver to sodomize him and that the incident took place in Kingston Mines.

On cross-examination, Detective Schmidt testified that he had spoken with the baby-sitter and C.K.’s mother on September 7 but that he did not interview C.K. until September 19, 1989, and that the interview lasted 15 or 20 minutes before C.K.’s interview with Ms. Gott. Detective Schmidt testified that during the first interview, the baby-sitter and the mother indicated that only a rattail comb and a man’s sexual organ were alleged to have been used, but in the interview with C.K. a screwdriver, a hammer and a man’s sexual organ were alleged to have been used. Detective Schmidt testified that he did not ask C.K. why his story had changed, but the changes were cause for some concern.

Voir dire was concluded and the jury returned. The first witness was C.K., who alleged for the first time that the defendant had used a wrench, in addition to a screwdriver and comb, to assault him. C.K. alleged that the comb broke when it was used, that this hurt him and that this happened only once; in the dining room at the house in Kingston Mines. C.K. also alleged that C.K.’s friend and Terry were there and for the first time alleged “the boss, Grandma Ruby” (Ruby Karmenzind, the defendant’s mother), was there as well. C.K. testified that “Terry hurt C.K.’s friend” and that the defendant inserted his sexual organ into C.K.’s mouth and beat him.

C.K. indicated on anatomically correct dolls that the tools were inserted into his rectum. He also identified where the male sexual organ is located. Upon the prosecutor’s request, C.K. drew pictures of himself and C.K.’s friend tied up in ropes. One of these pictures was admitted into evidence.

When asked, C.K. was unable to identify the defendant as his father. It is alleged, however, that this was the first time C.K. had ever seen his father clean-shaven, as the defendant had previously always worn a beard.

On cross-examination, C.K. denied ever changing his story, ever telling a lie or ever telling a lie to blame other people for his wrongs. He reported that his mother was the first person he told about the incidents. He testified that he then told his baby-sitter, then Officer Schmidt. After prompting, he recalled telling Mr. Minton and “a lady in front of a camera” and denied telling- anyone that there were two separate incidents.

C.K. alleged that there was a single incident, that it took place at 10 a.m. and that a hammer, a wrench, a screwdriver and a comb with a handle were used. The defendant was the only one who did this to C.K., and the defendant and Terry took turns doing “the same thing” to C.K’s friend.

C.K. denied that anyone fought over him and testified that the defendant had inserted his sex organ into his mouth and rectum. C.K. indicated one of several screwdrivers offered by the defense as being similar to the one used on him. C.K. also testified that he told his mother the entire story leaving nothing out, that he had told his mother that a wrench was used and that the defendant had inserted his sexual organ into C.K.’s mouth and rectum.

On redirect, C.K. asserted that he told the whole truth in his testimony and described Terry as having a mustache and peach-colored hair.

The next witness to testify was Detective Schmidt. He related details from the September 19, 1989, interview he had with C.K. Detective Schmidt testified that C.K. told him that his father had sodomized him with a screwdriver and a hammer at the house in Kingston Mines but that the “little part” of the screwdriver had been used rather than the “big part.”

On redirect, Detective Schmidt testified that he had spoken with C.K.’s friend, but the subject matter and details of that conversation were not revealed.

Dr. Kurt Knochel, an emergency room physician resident at St. Francis Hospital, was the next witness to testify. He testified that he examined C.K. in the emergency room on September 6, 1989. He provided four quotes from C.K.: “my belly hurts,” Daddy put his penis in my bottom,” He put it in my mouth” and “Yes, his friend did the same things.” Dr. Knochel testified that he thoroughly examined the child and found everything to be “entirely normal” and “no evidence of trauma.”

On cross-examination, Dr. Knochel clarified that C.K. had said “my daddy’s friend” had assaulted him, that he had found no indication of assault in his examinations, the screwdriver indicated by C.K. may or may not have caused injury or scarring and his examination revealed no such scarring.

On redirect, Dr. Knochel revealed that C.K. had told him that these incidents had occurred “when it was cold but before Christmas” in 1987 or 1988. He further testified that “children sometimes complain of abdominal pain when there’s something else going on.”

The next witness was C.K.’s mother, Vickie Karmenzind. She testified that the defendant used to have longer hair, a full-face beard and a mustache. C.K. had never before seen his father clean-shaven. She also testified that from June 1987 to July 1989 C.K. periodically complained of constipation and stomach aches. Ms. Karmenzind testified that she once saw blood in his underwear when she was preparing him for his bath at a time of year when it was “kind of warm out.” She testified that the defendant took C.K. to Kingston Mines to visit one of the defendant’s friends, Terry Foust, during that time period.

Ms. Karmenzind testified that she learned of the allegations from Ms. Buhs and that she attempted to call an abuse hotline. She said that she used to have a rattail comb, but the defendant told her that “C.K. broke it and he threw it away.” When she related this to Ms. Buhs, C.K. walked in, became hysterical and yelled “Dad broke the comb, I didn’t break it.”

On cross-examination, Ms. Karmenzind testified that she took C.K. to their family physician, Dr. Kabatay, after discovering blood in his underwear. She also testified that C.K. had told her bits and pieces of the allegations against the defendant, but never told her the whole story until the Friday before the trial. She denied discussing these allegations with Mr. Minton, Officer Schmidt or other people because “they already knew.” When asked whether C.K. ever told a lie that she knew about, Ms. Karmenzind testified “I can always tell when he’s telling a lie, because if you re-question him about it, then he’ll switch his story.”

The State rested and the defendant’s motion for a directed verdict was denied. The defendant called Dr. Romeo Kabatay, the Karmenzind family physician, to the stand. Dr. Kabatay testified that he had treated C.K. for ear infections and an upper respiratory infection with diarrhea, but had never treated him or heard any complaint for constipation or rectal bleeding, despite seeing him in his office twice in 1987, five times in 1988 and twice in 1990. On cross-examination, Dr. Kabatay testified that he never examined C.K. for sexual abuse.

The next witness was Terry Foust. Mr. Foust denied any involvement in the incidents alleged by C.K. and denied ever meeting C.K.’s friend. He denied ever having been involved in any incident with C.K., the defendant, C.K.’s friend or ever having molested C.K., C.K.’s friend or any other boy. On cross-examination Mr. Foust acknowledged that he had a moustache and that he had worn one for 10 years.

The next witness was Dr. Noor A. Khaiser, a gastroenterologist. He testified that he first saw C.K. on September 25, 1989, and performed a flexible sigmoidoscopy examination of the colon and rectum on September 27, 1989. The test revealed no trauma, scars, tears or healed ulceration. Dr. Khaiser testified that a screwdriver of the size indicated by C.K. would have caused some injury and perhaps scarring, no matter which end was inserted, but that the sharp end would have been more likely to cause severe injury of the rectal wall perforation.

The next witness was Dr. Phillip Immesoete, a geriatrician and pathologist. Dr. Immesoete was qualified as an expert witness in the field of medicine. Dr. Immesoete testified that “this size on this handle end [of the screwdriver] would cause a tear of the rectal sphincter” of a five-year-old child and that such a tear would leave a scar for over a year. He further indicated that any object this size, as well as the male sex organ, would dilate and tear the rectum of a five-year-old child. Dr. Immesoete testified that he had seen C.K.’s medical records and the sigmoidoscopy performed by Dr. Khaiser would have detected any internal trauma, tears or scars.

On cross-examination, Dr. Immesoete clarified that he had seen the emergency room report from St. Francis Hospital and two letters from Dr. Khaiser. He testified that he could not eliminate sexual abuse based on these reports and a child’s mouth could be penetrated by a male sex organ and leave no evidence of trauma. Upon redirect examination he reasserted that an adult male sex organ or a screwdriver handle would leave trauma in the rectum of a five-year-old child.

Charles A. Phillips testified next. He testified that he is a longtime friend of the defendant. He testified that in November 1987, he found an orange-handled comb lying on the floor in the defendant’s house; that he picked it up and laid it on the chair next to him, then on his own lap. When C.K. jumped into his lap, the comb gouged into C.K.’s seat. Mr. Phillips also testified that the defendant had a reputation for honesty and integrity in the community of Kingston Mines, that C.K. had been less than truthful on some occasions and that the defendant and Vickie Karmenzind had been rivals over their son. On cross-examination Mr. Phillips stated that the comb was not broken in the November 1987 incident.

Karen Kilpatrick testified next. She testified about a conversation she had with Vickie Karmenzind during the summer of 1989 in which Vickie Karmenzind expressed concerns about the defendant’s attempts to acquire visitation and custody rights regarding C.K.

Ruby Karmenzind testified next. Ruby Karmenzind related several past lies told by C.K., including “Mommy tied me up and threw me down the steps, down in the basement.” She further testified that she was aware of C.K.’s medical problems, including ear infections, allergies and constipation. Ruby Karmenzind further testified that her family has a history of childhood constipation, including an incident where blood was passed with a bowel movement. On cross-examination, she denied being present at any of the alleged incidents and that she had not been concerned about Vickie’s reports about C.K.’s constipation.

The defendant took the stand in his own defense. He said that he first heard of C.K.’s allegations “when Detective Schmidt confronted me on my doorstep” on or about September 12, 1989. The defendant testified that he denied these allegations on two separate occasions and again denied the allegations on the witness stand. The defendant confirmed the November 1987 incident with the comb as related by Mr. Phillips, but clarified that the handle had no point but “a real rounded end.” He denied seeing Terry Foust molesting C.K.’s friend or using tools to sodomize him. He confirmed that he was seeking changes in visitation and custody for C.K. and denied both inserting his sex organ into C.K.’s mouth or seeing Terry insert his sex organ into C.K.’s mouth.

Following closing arguments, the jury retired to deliberate. The jury returned a verdict against the defendant and two post-trial motions for a new trial were denied. The defendant was subsequently sentenced to 12 years’ imprisonment and now appeals, raising several issues on review.

Initially, the defendant contends that he was not proven guilty beyond a reasonable doubt. The defendant contends that the physical evidence in the case fails to corroborate C.K.’s testimony. Additionally, the defendant points to several contradictions in C.K.’s testimony as further evidence that he was wrongly convicted.

In People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344, our supreme court mandated that the reasonable doubt test as set forth in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, be applied in reviewing the sufficiency of the evidence in all criminal cases. We join recent decisions by the first district (People v. Byrd (1990), 206 Ill. App. 3d 996, 565 N.E.2d 176), fourth district (People v. Evans (1990), 199 Ill. App. 3d 330, 556 N.E.2d 904), and fifth district (People v. Meador (1991), 210 Ill. App. 3d 829) in holding that the proper standard of review in sex offense cases is the reasonable doubt test as announced in People v. Collins. Accordingly, it is not the function of this court to retry the defendant. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

The reasonable doubt test places a substantial burden upon the prosecution in criminal cases. It is the time-honored test that has been used in criminal cases throughout the history of American criminal jurisprudence. It is not gossamer or ethereal but involves real substance. Trial courts do not instruct juries on the meaning of “beyond a reasonable doubt.” The term is defined in Black’s Law Dictionary as “In evidence means fully satisfied, entirely convinced, satisfied to a moral certainty; and phrase is the equivalent of the words clear, precise and indubitable. In criminal case, the accused’s guilt must be established ‘beyond a reasonable doubt,’ which means that facts proven must, by virtue of their probative force, establish guilt.” (Black’s Law Dictionary 147 (5th ed. 1979).) The term has been further defined as “Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which reasonable man or woman might entertain, and it is not fanciful doubt, is not imagined doubt, and is not doubt that juror might conjure up to avoid performing unpleasant task or duty.” United States v. Johnson (2d Cir. 1965), 343 F.2d 5, 5.

In applying the reasonable doubt test as announced in Collins, a reviewing court must decide whether the evidence viewed in the light most favorable to the prosecution could convince any rational trier of fact that the facts proven by virtue of their probative force established the guilt of the defendant.

After reviewing the evidence in the light most favorable to the prosecution, we conclude that the defendant’s conviction must be reversed. The main evidence against the defendant was the testimony of his son, C.K. C.K. was between the age of two and four years old at the time of the alleged incident. He did not report the incident to anyone for between one and three years after the occurrence. His testimony was uncorroborated except to the extent that the various accounts he gave to other people were admitted under section 115 — 10 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10). C.K.’s trial testimony differed in numerous ways from the other versions of his story that he had given to Ms. Buhs, Detective Schmidt, Dr. Knochel, his mother, and Kelly Gott. More importantly, the medical testimony did not establish that C.K. had been assaulted in the manner alleged. Although Dr. Knochel agreed there was a possibility these acts could occur without injury, it was his expert opinion that injury would occur. Both Dr. Khaiser and Dr. Immesoete testified that the insertion of either end of a screwdriver into a five-year-old’s rectum would cause injury and trauma. Dr. Immesoete testified that any object of that size, including a male penis, would dilate and tear the rectum leaving a scar for over one year. The uncontradicted medical evidence established that there was no such injury or scarring of C.K.’s rectal area.

We are not unmindful of the serious problem in this State with child abuse. We are also well aware of the difficulties of proof involving sexual offenses on young children. However, the State still has the burden of establishing the guilt of the defendant beyond a reasonable doubt. Under all the circumstances contained in the record in this case, we conclude that no rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Accordingly, the judgment of the circuit court of Peoria County is hereby reversed and a judgment of acquittal is entered in favor of the defendant.

Reversed.

STOUDER, J. concurs.

JUSTICE GORMAN,

dissenting:

I dissent. In this case there was no physical evidence and, therefore, the case turned on the credibility of the various witnesses. Certainly, as in most trials, inconsistencies were revealed through cross-examination. However, it is well settled that it is the function of the trier of fact to weigh the credibility of the witnesses and to resolve conflicts or inconsistencies in the testimony. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276.) The jury did that in this case, and, based on all of the evidence, convicted the defendant.

The jury heard the testimony of the victim, Kelley Gott, Elsie Buhs, Detective Schmidt, and the victim’s mother and chose to believe their evidence. I conclude that the evidence withstands the scrutiny of the standard established in People v. Collins and that a rational trier of fact could have found the essential elements of this crime beyond a reasonable doubt.

I likewise conclude that the evidence most damaging to the defendant was properly admitted. The defendant contends that his constitutional rights were violated by the application of section 115—10 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10). Specifically, the defendant contends that section 115—10 violates due process by allowing several witnesses’ detailed hearsay statements to be heard by the trier of fact. The defendant also alleges that as section 115—10 is applicable only to defendants accused of committing sex offenses against children under age 13, it creates a class of defendants who are not protected by law equally vis-a-vis defendants charged with other types of crimes.

Section 115 — 10 provides:

“115 — 10. Sexual acts on child under 13 — Hearsay exception
§115 — 10. (a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115—10.

The defendant’s cited cases of People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366, and People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368, do not support his argument. In In re R.D. (1985), 131 Ill. App. 3d 612, 615, 476 N.E.2d 62, 64, the appellate court rejected a due process attack on section 115—10 and cited People v. Fuelner (1982), 104 Ill. App. 3d 340, 432 N.E.2d 986, for the following explanation of the basis for the exception:

“The basis for the corroborative statement exception is that it is entirely natural that a rape victim would have spoken out regarding the rape, and the fact that she did not do so would be evidence of the fact that nothing occurred. [Citation.] Consequently, if proof of a complaint was not permitted, the trier of fact might assume that no complaint was made. To forestall this assumption, the prosecution is allowed to show that the alleged victim was not silent but made a complaint. [Citation.]” 104 Ill. App. 3d at 349-50, 432 N.E.2d at 993-94.

The defendant’s argument concerning the “cumulative effect” of multiple witnesses has been addressed and rejected. In People v. Branch (1987), 158 Ill. App. 3d 338, 511 N.E.2d 872, the court stated:

“The legislature by enacting section 115 — 10 obviously determined that a corroborative complaint is sufficiently reliable to enjoy an exemption from the rule against hearsay evidence. [Citation.] A second or third complaint is no less reliable or credible. True, there is opportunity for exaggeration or embellishment the longer the time between the incident and each successive complaint. This factor is remedied though through cross-examination (and possible impeachment of the victim from prior inconsistent statements). [Citations.] Once the victim testifies and is subject to cross-examination, the rationale for the rule against hearsay evidence virtually disappears. [Citations.]
Youthful victims often suffer an inability to articulate on the witness stand or lack credibility in general. Their complaints obviously become more credible, reliable and understandable when supported by corroborative complaint testimony from adults. Those who are close to the victim or who have interviewed the victim and investigated the alleged incident should not be curtailed from testifying and aiding the victim merely because of their numbers or order of talking with the victim.” 158 Ill. App. 3d at 340-41, 511 N.E.2d at 873-74.

As to the defendant’s equal protection attack, it is beyond dispute that the prosecution of sex offense cases where children are victims present special problems of proof that make their prosecution especially difficult. (See, e.g., People v. Rocha (1989), 191 Ill. App. 3d 529, 547 N.E.2d 1335.) Since there exists a rational classification for allowing this hearsay exception, the defendant’s equal protection argument must fail.

The defendant next makes a two-pronged argument that the trial court erred in allowing the victim to testify. First, the defendant argues that allowing a child of tender years to testify under section 115—14 (Ill. Rev. Stat. 1989, ch. 38, par. 115—14) violated his right to due process. Second, the defendant argues that in this specific case the court erred in finding the five-year-old victim competent and allowing him to testify.

The defendant’s first argument contends that the victim may have been told by an adult that these events occurred, that perhaps an adult told him that he should remember the events and that perhaps he went along with the story because he was directed to by an adult. I find this argument to be totally speculative. Certainly, the possibility exists that the victim was told what to say, but that is true of any child victim’s testimony. It is the function of the trier of fact to evaluate the testimony based on the witness’ demeanor and the inconsistencies in that testimony as highlighted by defense counsel.

' The defendant’s cited case of People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368, does nothing to support his argument. Contrary to defendant’s assertion, the court in Fisher did not prevent the testimony of a victim of tender years. The victim in Fisher was less than three years old, neither side sought to present her as a witness, and her competency to testify as a witness under section 115—14 was not an issue for the reviewing court.

The defendant’s second argument is in regard to the trial court’s determination that the victim was competent to testify. Our supreme court has commented that “[i]t is the degree of a child’s intelligence, rather than mere chronological age, that determines a child’s competence, and ‘[i]f the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent.’ [Citations.]” (People v. Garcia (1983), 97 Ill. 2d 58, 75, 454 N.E.2d 274, 280.) In Garcia the court further commented that there is no rigid formula which is applicable to a determination of competency and “[decisions as to the competency of a witness are reviewable, but in light of the trial court’s opportunity to take into account the demeanor of the witness, this court has held that such determinations will be overturned only when it appears that the trial judge has abused his discretion.” Garcia, 97 Ill. 2d at 75, 454 N.E.2d at 280.

The defendant claims that the trial court abandoned its duty of determining the victim’s competence. This is not supported by the record. The record unequivocally demonstrates that the trial court was aware of the standard under section 115 — 14 and made findings with respect to that standard.

The defendant points to the fact that during voir dire of the victim he told the court that he had not told any doctor about the incident. This is contradicted by Dr. Knochel’s report and subsequent testimony. Additionally, the defendant points out that the victim had trouble reciting his last name, and the victim’s assertion that he could remember every event in his life back to the age of two. Most importantly, the defendant points to the victim’s responses to questions about telling the truth as proof that he was not competent to testify:

“Q. [Prosecutor:] Okay. [Name omitted], do you know what the truth is?
A. Yes.
Q. What’s the truth? Can you give me an example?
A. Tell the truth.
Q. Okay. Do you know what a lie is?
A. You’re not telling a lie.
Q. Not telling a lie?
A. You’re telling a lie.
Q. Okay. And can you give me an example of what that is?
A. I don’t know. I don’t know.
Q. Okay. When she just told you you raised your right hand and you swore to tell the truth. Can you do that?
A. Yeah.
Q. Can you tell me what that means to tell the truth?
(Pause.)
A. (No response.)”

And later, during cross-examination:

“Q. [Defense Attorney:] [Name omitted], now you said you know what the truth is.
A. Yeah.
Q. Okay. And do you know what your last name is?
A. Yes.
Q. What’s that?
A. Karmenzind.
Q. Okay. And have you ever told a lie?
A. No.
Q. Okay. Never told a lie?
A. Huh-uh.
Q. Okay. Have you ever just told parts of the truth and not part of the truth?
A. I told a whole truth.
Q. You always tell the whole truth?
A. Yes.
Q. Okay. And you know if you only tell half the truth then could be a lie by just telling half the truth?
A. I don’t half the truth, I tell the whole truth.
Q. Okay. And have you ever been spanked for telling a lie?
A. No.
Q. Okay. You ever make up stories or anything like that that are not the truth?
A. No.”

In People v. Lawler (1989), 181 Ill. App. 3d 464, 536 N.E.2d 1283, a 13-year-old mildly mentally retarded girl was found competent to testify even though she said she did not know the difference between when somebody tells the truth and somebody tells a lie. The court stated: “[T]he witness may well have given ambivalent answers as to knowledge of truth and falsehood. However, the record reflects she did respond she would tell the truth, the truth being to tell what happened, when asked in an understandable manner.” Lawler, 181 Ill. App. 3d at 469-70, 536 N.E.2d at 1287.

The focus is not on one aspect of the examination but on the examination as a whole. The victim knew that he was five years old, provided the names of the school he attended and his teacher, recited the numbers 1 through 10, and the Pledge of Allegiance and stated that he tells the truth and does not lie. Although he had trouble articulating what is the truth and what is a lie, he did indicate that he understood that it was important to tell the whole truth rather than a “half” truth. I cannot say that the trial court abused its discretion in allowing the victim to testify.

The last issue I address is whether the trial court abused its discretion in denying the defendant’s motion for a bill of particulars.

The indictment in the instant case, returned October 3, 1989, charged that the offense occurred between December 1, 1987, and July 4, 1989. The State need only establish that the offense charged was committed within the statute of limitations and prior to the return of the indictment. (People v. Barlow (1989), 188 Ill. App. 3d 393, 544 N.E.2d 947.) This the State did, and thus, it was not an abuse of discretion to refuse the defendant’s motion for a bill of particulars.

For the reasons listed above, I would affirm the defendant’s conviction and sentence. Accordingly, I dissent.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER JUSTICE SLATER,

license: Public Domain

text:
      In re PARENTAGE OF G.D.M., a Minor (The People ex rel. Deena Cole, Petitioner-Appellee, v. Roger Paul Miller, Respondent-Appellant).
    Third District
    No. 3—90—0820
    Opinion filed October 4, 1991.
    Rehearing denied November 7, 1991.
    SLATER, J., dissenting.
    Philip M. Pollock, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Deena Cole, filed a petition to determine the existence of a father/child relationship between the respondent, Roger Paul Miller, and her minor child, G.D.M. An assistant State’s Attorney was assigned to the case, and he voluntarily dismissed the action. Subsequently, that order was held void by the trial judge. The respondent appeals.

The record shows that on September 22, 1987, an assistant State’s Attorney filed a voluntary motion to dismiss the petitioner’s complaint. On that date, Judge Bode granted the motion. Thereafter, on September 7, 1988, the State, pursuant to section 2—1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401), filed a motion to vacate the order of dismissal. The motion incorporated the alternative methods of relief provided in that statute. That is, it requested relief under all the subsections, including subsection (f), which provides for relief from void orders.

The State argued that the order was void because no notice of the motion had ever been given to the parties, thereby depriving Judge Bode of the authority to enter such an order. Following a hearing, the trial court found that Judge Bode had no authority to enter an order dismissing the case on September 22, 1987, and as such, the order was void.

On appeal, the State argues that this appeal should be dismissed because we lack jurisdiction over the case since no final, appealable order has been entered. The State notes that it is weU settled that an order vacating a judgment because the judgment was void is not appealable. (Mabion v. Olds (1967), 84 Ill. App. 2d 291, 228 N.E.2d 188.) Such an order simply leaves the case pending and, as such, it is an order which is not final in character. (Alexander v. Burke (1972), 6 Ill. App. 3d 919, 287 N.E.2d 53.) The respondent counters, however, that this court has jurisdiction to determine whether the original judgment was in fact void.

We note that if, for jurisdictional purposes, we were to review the original judgment to determine whether it was in fact void, we would in effect be deciding the merits of the appeal. This is so because the only issue raised by the respondent on appeal is whether the trial court properly reinstated the petitioner’s suit. Thus, the respondent’s position would create a “chicken or the egg” situation which would render the holding in Alexander meaningless.

We therefore find that the trial court’s order vacating the prior judgment as void had the effect of leaving the original action against the respondent pending. Accordingly, there is no final and appealable order from which we can obtain jurisdiction. We therefore have no choice but to dismiss the appeal. Alexander v. Burke (1972), 6 Ill. App. 3d 919, 287 N.E.2d 53.

This appeal from the circuit court of Peoria County is dismissed.

Dismissed.

HAASE, J., concurs.

JUSTICE SLATER,

dissenting:

I do not agree that this court does not have jurisdiction. The State’s motion to vacate was brought pursuant to section 2—1401 of the Civil Practice Act (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). It is clear that if the trial court had vacated the dismissal order on the basis of the section 2—1401 petition that order would be appealable notwithstanding the fact that it is not a final order. (134 Ill. 2d R. 304(b)(3).) The trial court, however, found that the dismissal order was void. The majority accepts this determination without question and, relying on the “well-settled” rule that an order vacating a void judgment is not appealable, dismisses the appeal. The majority’s decision begs the question of whether the dismissal was in fact void. It appears to me that it was not. The court had both subject matter and personal jurisdiction when it dismissed the parentage petition. I would vacate the trial court’s order and remand for a determination of the merits of petitioner’s section 2—1401 petition.

With regard to the majority’s “chicken or the egg” analysis, to the extent that it suggests that this court is precluded from determining whether jurisdiction exists because such a finding would address the merits of the appeal, I strongly disagree. First, the narrow jurisdictional inquiry is whether or not the dismissal order was void. If it was, the appeal should be dismissed; if it was not, then we should remand for a determination of the merits of petitioner’s section 2 — 1401 petition. Second, under the majority’s reasoning, a finding by the circuit court that a dismissal, any dismissal, is void precludes appellate review and forces the opposing party to continue with the litigation. This is so whether the dismissal was void or not because the majority is unwilling to examine the threshold question of voidness for fear of determining the merits of the appeal.

In my opinion the majority confuses the concept of jurisdiction over the appeal with that of this court’s power to determine jurisdiction. While the former is limited by a variety of concerns (e.g., avoidance of piecemeal appeals), the latter is inherent and plenary. This court is not deprived of its ability, indeed its obligation, to determine jurisdiction merely because the two may sometimes overlap. I respectfully dissent.


author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIZABETH DWORZANSKI et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—89—1532, 1—89—1611 cons.
    Opinion filed September 24, 1991.
    Rehearing denied October 16, 1991.

      Jeffrey Dean Lewis, of Chicago, for appellant Scott Cihlar.
    Julius Lucius Echeles, of Chicago, for appellant Elizabeth Dworzanski.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Maureen P. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Elizabeth Dworzanski (Elizabeth) appeals after a bench trial from her convictions on one count of abducting her minor child, Paul (violating court order granting sole custody, care or possession to another), and an additional count of abducting Paul (violating court order prohibiting the concealment or detainment of a child). Claiming that she was improperly convicted twice for the same offense, that there was insufficient evidence to support her convictions and that she was denied a fair trial because of the exclusion of exculpatory evidence and because the trial court prejudged her case, she seeks a reversal of her convictions, a remand for a new trial, or a remand for resentencing if only one of her convictions is reversed.

Scott Cihlar appeals, after being jointly tried with Elizabeth and with Jolanta Kawecka, who is not a party to this appeal, from his conviction for aiding and abetting in the child abduction of Paul (in the planning or commission). He argues that his indictment failed to properly charge him with an offense, that there was insufficient evidence to support his conviction, and that by using evidence against him which was presented by the codefendants in their defense, but which he did not adopt in his own, and by holding him to a higher standard of conduct than that by which he was required to abide, the circuit court denied him a fair trial. Cihlar seeks reversal of his conviction or a reversal with a remand for a new trial.

Mitch Dworzanski (Mitch) testified at trial that he was Elizabeth’s husband at the time of the incident in question, but that divorce proceedings were pending between the couple. The Dworzanskis had two children, Thomas, age three, and Paul, age two. The court hearing the Dworzanskis’ divorce case entered an order on April 15, 1988, granting Mitch possession of Paul and Thomas from that date until April 19,1988.

Mitch, Paul and Thomas left the home of one of Mitch’s friends on the evening of April 16, 1988, and while walking in an alley on the way to Mitch’s car, they were confronted by Elizabeth, Cihlar and Kawecka. Elizabeth began to curse at and to strike Mitch. Kawecka pulled Thomas away from him, and while Cihlar pushed Mitch several times, Elizabeth pulled Paul away. After falling to the ground, Mitch arose and followed the three adults as they took Paul and Thomas into another alley. Mitch witnessed their entering a car and driving away with an unidentified man at the wheel.

Mitch was reunited with Thomas later that night at the police station where the boy had been taken. Mitch and a police officer later searched Elizabeth’s residence for Paul, but they failed to find him there.

Mitch testified on cross-examination that he was uninjured by the fracas in the alley, but then admitted signing and filing “papers” on April 19, 1988, with the court hearing the divorce proceedings. These “papers” stated that he had been attacked by Elizabeth, “her boyfriend” Cihlar, and Kawecka; and that Elizabeth had jumped on his back and pulled his hair, while Cihlar “pummeled [him] *** about the head and face causing contusions, bruises, and bleeding.”

One Masonick, whose first name is not supplied by the record, testified that he was a youth officer for the Chicago police department at the time of the incident. He saw Elizabeth, Cihlar, Kawecka and Thomas at the police station on the evening of April 16, 1988, but they were not then in custody. Later, at about 9:30 or 10 p.m., Mitch arrived at the station, accompanied by his attorney. Masonick spoke with Mitch, who related the details of the incident, which he said took place at around 8:30 p.m. Masonick did not think that Mitch was under the influence of alcohol, and he noticed that Mitch’s pants had smudge marks on the knees. At approximately 10:30 p.m., Masonick received a copy of the court order granting Mitch temporary possession of Thomas and Paul; accordingly, Thomas was then turned over to Mitch’s custody.

Masonick sent police officers to Elizabeth’s residence in order to look for Paul, but they were unsuccessful. When, at the police station, Masonick asked Elizabeth about Paul’s whereabouts, she said that “she did not know his whereabouts.” Cihlar told Masonick that he was “an Illinois Department of Children and Family Service[s] [DCFS] worker, and that he [had] been assigned to investigate this case in the past as a child abuse worker.” Cihlar also related that he had contacted Elizabeth earlier in the evening, that she seemed distraught and that he wanted to go to her house “to comfort her.” According to Masonick, Cihlar admitted that “he was aware that there was a court order *** giving custody of the father [sic] — Mitch *** of the children from the 15th of April to the 19th of April”; however, he accompanied Elizabeth to Mitch’s friend’s house in order to locate him and the children. When they observed the children in Mitch’s company, the boys ran from Mitch to Elizabeth. The adults then took the children (apparently, however, only Thomas) to the police station. Cihlar told Masonick that they thought Mitch was intoxicated, and that they brought Thomas to the police station to report child abuse. Masonick did not observe any signs of physical abuse to Thomas. When he asked Cihlar about Paul’s whereabouts, Cihlar replied that “he didn’t know where the boy was.”

On cross-examination, Masonick testified that he didn’t receive a copy of the court order granting Mitch possession of the boys until after he spoke with Cihlar. In addition, he never asked Cihlar for a written statement, or indicated on his report either whether Mitch was intoxicated at the time he was interviewed or that he had smudge marks on his pants.

Sylvia Duignan testified that she was driving near the scene of the alleged abduction at about 8:30 p.m. on April 16, 1988. She saw Mitch alone in an alley, saw him get up from the ground, stumble across the alley, bend over a fence, vomit and reach out toward a nearby garbage can.

Kawecka testified that Elizabeth came to her apartment at about 8 p.m. on April 16, 1988, and asked her to accompany her to where she believed Thomas and Paul were. Cihlar, Elizabeth and she arrived by car at the scene within a half hour. They left the car and saw Mitch leave a building with Thomas and Paul. Mitch was swaying as he walked, and the children were walking about a foot behind him. When the boys saw Elizabeth, they began to run toward her; Thomas went to Elizabeth, but Mitch had Paul by the hand. Thomas then began to run from Elizabeth, but Kawecka stopped him before he ran into another alley.

' Kawecka did not see Mitch get hit, nor did she pull any of the children away from him. She and Thomas went back to the car, and about two minutes later, Elizabeth and Cihlar arrived with Paul. They drove to Elizabeth’s brother’s house to drop Paul off, and then went to the police station with Thomas, where they were later arrested. At the police station, Kawecka noticed that Thomas had a rash on his lower body, but saw no other injuries; he also appeared to be dirty.

Elizabeth admitted at trial that she saw a copy of the court order when the police arrived at her home to enforce it by delivering the boys to Mitch’s possession. On the evening of April 16, 1988, Cihlar called her and she asked him to come over to her house. She intended to look with Cihlar and Kawecka for her children, to “see what [was] *** going on.” She next saw the children just after 8 p.m. that evening, walking behind their father who, according to her testimony, “was drunk.” Thomas was holding Paul by the hand, and when Thomas saw Elizabeth, he yelled and began to run toward her. Mitch caught Paul and kept him from running away. Elizabeth embraced Thomas, who then started to run from her; Kawecka stopped him. Paul tore himself away from Mitch and ran toward her. She took Paul back to the car, where Kawecka and Thomas had gone. They then drove to her brother’s house, where Elizabeth’s aunt lived, and dropped off Paul, who by this time had fallen asleep. She told her aunt that she was going to the police station and would soon return to take Paul to the hospital. They then went to the police station with Thomas. Once at the station, she telephoned her home and learned that Paul had been taken there.

Elizabeth stated that neither she, Cihlar nor Kawecka struck Mitch, whom she described as “tossing and turning,” smelling of alcohol and “dirty.” By the time she saw Mitch at the station, at around midnight, he had shaven and had changed his clothes.

According to Elizabeth, when Masonick asked her about Paul’s whereabouts, she told him that the boy was at her home. She stated that she did not intend to conceal Thomas and Paul either from Mitch or from the police. Further, she took her children away from their father only after they ran to her. She admitted, however, that she failed to comply with her duty to bring Paul and Thomas with her to the divorce hearing on April 15, 1988, when the order was issued granting Mitch temporary possession. She claimed that the court order failed to reflect the requirement that Mitch was not to be drunk while visiting with the children. She understood, however, that he was to have possession of them until April 19,1988.

After convicting Cihlar and Dworzanski, acquitting them of several other related charges, and acquitting Kawecka of all charges, the trial court sentenced Cihlar and Dworzanski each to two years’ probation.

Elizabeth first claims that her conviction for the abduction of Paul (violating court order prohibiting the concealment or detainment of a child) should be vacated because that conviction arose from the same physical act as her conviction for child abduction (violating court order granting sole custody, care or possession to another) and because there was no court order which prohibited her from concealing or detaining Paul. The State responds that she “was not convicted of both counts because only one sentence was imposed” and that the court order which granted Mitch temporary possession of Paul “clearly but implicitly” prohibited her “from concealing or detaining” Paul.

Elizabeth was convicted of violating sections 10—5(b)(1) and (b)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 10—5(b)(1), (b)(2)), which read:

“(b) A person commits child abduction when *** she:
(1) Intentionally violates any terms of a valid court order granting *** possession to another, by concealing or detaining the child ***; or
(2) Intentionally violates a court order prohibiting the person from concealing or detaining the child ***.”

While Elizabeth concedes that she was bound by an April 15, 1988, circuit court order which gave Mitch temporary possession of Paul, as required for a conviction under section 10—5(b)(l), there was no court order which “prohibited her] from concealing or detaining [Paul].”

The court, although the State argues otherwise, found Elizabeth guilty of violating both sections 10—5(b)(1) and (b)(2). Since section 10—5(b) distinguishes between two types of court orders, we find no support for the State’s proposition that the order granting “possession of his two minor children,” which clearly fell within section 10—5(b)(1), implied that Elizabeth could not “conceal[] or detain[] the child” so as to also fall within section 10—5(b)(2). Accordingly, because there was no court order which “prohibited Elizabeth] *** from concealing or detaining” Paul, Elizabeth’s conviction for violating section 10—5(b)(2) of the Code is reversed.

Next, Elizabeth avers that the State failed to prove beyond a reasonable doubt that she intentionally violated the court order on which her remaining conviction was based. She contends that she intended only to remove Paul from a situation which she reasonably believed was harmful to him, namely, the possession of his intoxicated father; thus, her actions were intended to prevent a greater harm than that resulting from her violation of the order. As evidence of her lack of criminal intent, she points out that she took Thomas and Paul from Mitch while she was in the company of DCFS worker Cihlar, that she took Thomas to the police station almost immediately and that she told the police where they could find Paul, whom she had not taken to the police station only because he was asleep.

The State responds that Elizabeth’s asserted belief that she was protecting Paul from the possession of his intoxicated father was only relevant as part of a “necessity” defense. Accordingly, it argues, because there was sufficient evidence for the trial judge to find that Elizabeth did not reasonably believe that her acts were necessary to avoid harm to Paul, and to find that she withheld information about Paul’s whereabouts from the police when she brought Thomas to the police station, the court did not err in failing to acquit her on the basis of necessity.

The State correctly maintains that even if the trial judge had found that Elizabeth believed that Mitch was drunk, such a finding would not have been inconsistent with its finding that she intentionally violated the court order. The State is also correct in its contention that Elizabeth’s asserted belief is only relevant insofar as it raises the defense of “necessity,” requiring her to show that she “reasonably believed such conduct was necessary to avoid a[n] *** injury greater than the injury which might reasonably result from [her] own conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 7—13.) As to affirmative defenses (Ill. Rev. Stat. 1987, ch. 38, par. 7—14), “the defendant, to raise the issue, must present some evidence thereon. *** If the issue *** is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.” Ill. Rev. Stat. 1987, ch. 38, par. 3—2.

The necessity defense “justifies] only such otherwise illegal conduct which constitutes the sole reasonable alternative available to the act or in the circumstances.” (People v. Perez (1981), 97 Ill. App. 3d 278, 281.) In the instant case, we cannot say that the court erred in declining to give weight to Elizabeth’s necessity defense. Even if Elizabeth reasonably believed that Mitch was intoxicated, she failed to present any evidence that Paul was in danger as a result of his father’s condition. Moreover, because the trial court was entitled to find that Elizabeth “concealed” Paul by telling Officer Masonick that she did not know where he was, a finding which was supported by evidence that Paul was not at Elizabeth’s house as she claimed at trial, it could reasonably have found that the State had overcome her necessity defense by proving that she had acted beyond the scope of what was reasonably necessary to protect Paul. Accordingly, the finding was not contrary to the evidence.

Next, Elizabeth argues that the trial court improperly excluded evidence of Mitch’s intoxication, which was relevant to her defense that she did not intend to violate the court order in question; therefore, she was denied a fair trial. We note, however, that she failed to raise this issue in her post-trial motion for a new trial; but, as noted above, even if the trial court had believed that Mitch was intoxicated, we do not apprehend how the judgment of the court could have been any different. Accordingly, we hold that review of this issue has been waived. People v. Young (1989), 128 Ill. 2d 1, 47.

Elizabeth then claims that the trial judge prejudged her case, as evidenced by his statement at trial that he would not consider evidence that Mitch was intoxicated and by, on five occasions, interrupting defense questioning or excluding evidence the State had not even requested be excluded. Essentially, the trial judge is accused of having acted as an advocate for the State. The State responds that the trial judge did not show prejudgment by failing to consider evidence of Mitch’s intoxication and acted properly in his statements during the trial, seeking only to clarify and expedite nonresponsive and repetitive testimony.

In People v. Griffin (1990), 194 Ill. App. 3d 286, 296, the court held, “A trial court is free to examine witnesses in its discretion, provided it does not become an advocate, abandoning its function as an impartial tribunal.” Moreover, “the danger of prejudice due to judicial questioning decreases sharply in cases tried without a jury. [Citations.] The relevant inquiry in a non-jury trial is whether the tenor of the court’s questioning indicates that the court has prejudged the verdict before hearing all of the evidence.” 194 Ill. App. 3d at 296.

Elizabeth compares the actions of the trial judge in the instant case with that of the trial judge in People v. Diaz (1971), 1 Ill. App. 3d 988. In Diaz, the judge, in a bench trial, was held to have prejudged the case when he thrice stated his belief, before he had heard all of the defense’s evidence, that the defendant was guilty. This court, on appeal, held that it was insignificant “that the trial judge was willing to reserve his ruling, a willingness he expressed each time the premature action was called to his attention.” (1 Ill. App. 3d at 992.) This court further held that the trial court’s pronouncements, despite “the discretionary power *** to control, within reasonable limits, how the right [to argue a cause in a criminal case] shall be enjoyed,” effectively denied the defendant the right to argue his case. 1 Ill. App. 3d at 992-93.

After carefully reviewing the incidents Elizabeth complains of in the instant case, we hold that the trial court neither prejudged her case nor abused its discretion. None of them had the effect of denying her right to argue her case; none indicated a predisposition to convict. The court, as noted above, properly disregarded evidence of Mitch’s intoxication. Further, the statements made during this trial were akin to those in Griffin, in which a trial judge sitting without a jury asked the defendant questions which had the effect of diminishing the defendant’s credibility, and to those in People v. Concil (1967), 80 Ill. App. 2d 72, 77, in which the judge questioned witnesses in order “to clarify the evidence to establish preliminary matters in his own mind.”

During Elizabeth’s trial, the judge occasionally participated in order to clarify matters and to keep counsel from venturing into areas which were properly not relevant to the case. Moreover, while he interjected more frequently during Elizabeth’s interrogation than in that of any other witness, her testimony tended to be the most unresponsive and the most difficult to follow, perhaps because of language difficulties (an interpreter was used throughout her testimony), or because she seemed particularly eager to get her version of events before the court in her own fashion. Accordingly, we hold that the judge did not abuse his discretion in his conduct of the trial.

Having determined that Elizabeth’s conviction for violating section 10—5(b)(2) of the Code should be reversed, the issue arises as to whether her cause should be remanded for resentencing. As noted earlier, although the State contends that Elizabeth was convicted of only one crime and received only one sentence, the trial judge made it clear in rendering his verdict that he was convicting her of two counts of child abduction. It is unclear from the record whether her sentence of two years’ probation was based on the trial judge’s erroneous belief that she had been convicted of two crimes; we hold, therefore, that her cause should be remanded for resentencing. See People v. Lopez (1986), 147 Ill. App. 3d 127, 128 (remandment for re-sentencing required when a single sentence is given for convictions on multiple counts, one or more convictions of which are vacated, and when the sentence may have been affected by the existence of the vacated convictions(s)).

Accordingly, Elizabeth’s conviction is affirmed in part, vacated in part and remanded only for resentencing.

Cihlar, in his appeal, first argues that the trial court erroneously denied his “Motion in Arrest of Judgment,” claiming that the indictment on which he was convicted did not properly charge an offense in that it failed to properly identify the court order he was accused of violating, failed to properly describe the acts which constituted aiding and abetting child abduction, failed to specify the time and place of •the offense and failed to allege the nature and elements of the offense. The State responds that when all the counts on which Cihlar was charged are considered, the record shows that he was properly charged with aiding and abetting child abduction (in the planning or commission). The count on which Cihlar was convicted reads:

“[O]n or about April 16, 1988 at and within the County of Cook SCOTT CHILAR [sic] *** committed the offense of AIDING AND ABETTING CHILD ABDUCTION in that [he] BEFORE AND DURING THE COMMISSION OF THE OFFENSE OF CHILD ABDUCTION, AND WITH THE INTENT TO PROMOTE AND FACILITATE ELIZABETH DWORZANSKI IN THE PLANNING AND COMMISSION OF SUCH OFFENSE, AIDED AND ABETTED HER IN THE VIOLATION OF AN ORDER OF A JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IN CONCEALING AND DETAINING PAUL DWORZANSKI AGED 2, IN VIOLATION OF CHAPTER 38, SECTION 10-7(1) OF THE ILLINOIS REVISED STATUTES 1985 AS AMENDED ***.”

Cihlar cites section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111— 3(a)(3)), claiming that his indictment failed to “[s]et[ ] forth the nature and elements of the offense charged.” In People v. Fox (1983), 117 Ill. App. 3d 1084, 1085, the court held that an indictment charging a defendant under section 31—1 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 31—1) with obstructing a police officer was not sufficient when it charged him with obstructing the officer “by attempting to conceal the whereabouts of Joe L. Pate.” (Emphasis omitted.) Although more specific than the statute, the indictment was held to have failed to “sufficiently describe the act or acts which form[ed] the basis of this charge so as to afford the defendant the full protection against double jeopardy contemplated by the constitution.” 117 Ill. App. 3d 1086.

Cihlar also cites People v. Griffin (1967), 36 Ill. 2d 430, in support of his argument. Griffin held that because the term “recklessness” describes both legal and illegal acts, indictments for reckless driving must allege the specific reckless acts at issue in order to protect the defendant from double jeopardy. (Griffin, 36 Ill. 2d at 434-35.) In People v. Hayes (1979), 75 Ill. App. 3d 822, 824, the court held:

“[A] charging document which adopts the language of the statute is sufficient if the words of the statute particularize the offense so that an accused is apprised with reasonable certainty of the precise offense with which he is charged. The determination of whether these standards have been met is accomplished by reference to the plain and ordinary meaning of the words of the charging instrument as read and interpreted by a reasonable person.”

The court in Hayes, as did the court in Griffin, held that indictments for reckless conduct must allege the acts with greater specificity than “performed recklessly certain acts.”

In People v. Wisslead (1985), 108 Ill. 2d 389, 393, however, the court upheld the sufficiency of an indictment which paralleled the language of section 10—3(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 10—3(a)) in charging that the defendant committed unlawful restraint when he “ ‘knowingly without legal authority, detained Nancy Rutledge Wisslead.’ ” (108 Ill. 2d at 393.) The court held:

“The language of the statute can serve to apprise the defendant of both the nature and the elements of the offense, so long as the statutory language specifies, with reasonable certainty, the type of conduct being alleged.” (Emphasis in original.) (108 Ill. 2d at 394.)

Accordingly, and despite the holding in Fox, we believe that the charge of the indictment that Cihlar “AIDED AND ABETTED HER [Elizabeth] IN THE VIOLATION OF AN ORDER OF A JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IN CONCEALING AND DETAINING PAUL” permissibly tracked the language of the applicable statutes, section 10—7(a)(i) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 10—7(a)(i)) and section 10—5(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 10—5(b)(1)) so as to properly inform Cihlar of the acts of which he was accused. Nor do we foresee any likelihood that he could be subject to double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10) by being charged with acts different from those which the State attempted to prove in the instant case, but which would still fall within the accusation of “concealing or detaining Paul.”

With regard to Cihlar’s allegation that the court order he was charged with violating was not specified in the indictment, the State points out that such a specification was contained in the count charging him with violating section 10—5(b)(1) of the Code when it identified the order as one which “GRANT[ED] *** SOLE CUSTODY, CARE AND POSSESSION OF PAUL DWORZANSKI, AGED 2, TO MITCH DWORZANSKI, ITS FATHER.” “[Elements missing from one count of a multiple-count indictment or information may be supplied by another count.” (People v. Hall (1982), 96 Ill. 2d 315, 320.) Finally, Cihlar’s claim that the indictment improperly failed to allege the time and place of the offense is groundless. The indictment alleged that his acts took place on April 16, 1988, and that they took place within the County of Cook; such elements comply with the requirements of section 111—3(a)(4) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111—3(a)(4)) that an indictment “[s]tat[e] the date and county of the offense as definitely as can be done.” See People v. Blanchett (1965), 33 Ill. 2d 527.

Next, Cihlar alleges that there was insufficient evidence to support his conviction and that therefore the trial court should have granted his motion for a “directed” finding of acquittal, or that at least it should have acquitted him at the close of the proceedings. Specifically, he maintains that he was not identified as the driver of the vehicle that carried Paul away, that he was not shown to have known of the court order he was alleged to have intentionally violated, and that his acts did not constitute aiding and abetting. The State responds that whether or not he was the driver of the car used to take the children, Mitch’s testimony that Cihlar helped take the children from him was sufficient to show that he aided and abetted Elizabeth in removing Paul from Mitch’s possession. Further, the State points to Masonick’s testimony that Cihlar “stated that he was aware that there was a court order issued by Judge Bellows giving custody of [sic] the father — Mitch Dworzanski — of the children from the 15th of April to the 19th of April.” This testimony, the State avers, was sufficient to show that Cihlar knew of the court order he was convicted of violating.

The facts in the instant case, viewed in the light most favorable to the State (People v. Rey (1985), 136 Ill. App. 3d 645, 650), fully support the trial court’s determination. Masonick’s testimony that Cihlar told him that he was “aware” of the court order granting Mitch possession allowed the court to infer that he knew of the order at the time of the abduction. Additionally:

“ ‘[I]f the proof shows [the defendant] was present at the crime without disapproving or opposing it, the trier of fact may competently consider this conduct with other circumstances and thereby reach a conclusion that such person assented to the commission of the criminal act, lent his countenance and approval and was thereby aiding and abetting the crime.’ ” (People v. Nugara (1968), 39 Ill. 2d 482, 487, quoting People v. Clark (1963), 30 Ill. 2d 67, 72.)

Accordingly, Mitch’s clear identification of Cihlar as one of those who met him in the alley and took Paul and Thomas away, Masonick’s testimony that Cihlar admitted at the police station that he was aware of the court order, that he had helped seek out Mitch and that he did not know Paul’s whereabouts, despite appearing at the police station with Elizabeth and with Thomas, properly allowed the court to find that Cihlar aided and abetted Elizabeth in committing child abduction.

Finally, Cihlar claims that he was denied a fair trial by the court’s consideration of inculpatory evidence provided by his codefendants as part of their defense, but which he did not adopt as part of his own defense, and in addition, by the court’s consideration of his status as a DCFS employee in determining his guilt. Cihlar asserts that the trial judge, in determining his guilt, improperly considered evidence provided by Kawecka and Elizabeth that he drove the car in which he, his codefendants and the children left after the incident in the alley, that he knew about the court order which gave Mitch possession of Paul and that when he was interrogated by Masonick, he knew Paul’s whereabouts. He further claims that the trial court impermissibly presumed that because Cihlar worked for DCFS, he knew that he was assisting Elizabeth in violating a court order, and that his failure at the police station to inform Masonick of Paul’s whereabouts was in violation of his duty as “an officer of the court” to volunteer such information. The State responds that the trial judge considered only competent evidence in determining Cihlar’s guilt and that Cihlar’s status as a DCFS worker was not a factor in that determination.

In finding Cihlar guilty, the trial judge stated:

“As to Mr. Chilar [sic], here’s a man who works for the D.C.F.S. He obviously has to know what he is doing when he himself said take the kids to the station, which was wrong at that point, but any way at least it’s something. He did take one and he knew that the other kid — he knew where the other kid was cause he drove the kid there. He didn’t tell the police where the child was either. Again, there may not be any exact testimony that anybody asked him that question, but he never volunteered it either, which as an officer of the court which he was working at supposedly he certainly should have, so I’m going to find him guilty of the aiding and abetting as to Paul.”

During the hearing on Cihlar’s motion for a new trial, after his counsel argued that the judge had wrongly used Elizabeth’s and Kawecka’s testimony in finding Cihlar guilty, the judge stated, “Let me put your mind at rest. I based it on the testimony of what took place in the alley.” Later the judge stated:

“I found him guilty because when he came on the scene in the alley, the father was in custody of the child. When they left, they left with the child, and as an officer of court he should have known better than that. I don’t think he should have ever left that alley with the child. It’s that simple.”

Cihlar then argued that there was no evidence that he was employed as a DCFS officer at the time of the incident; that instead, he was a former officer. The court stated:

“I don’t know whether he was or wasn’t. I know from the evidence I heard as applicable to Mr. Chilar [sic] was that he was at one time or even at that time was a DCFS officer.
* * *
And that he has a duty then certainly to enforce all court orders, so it’s just that simple again.”

Finally, in responding to Cihlar’s argument that Masoniek’s testimony that he was aware of the court order didn’t show that he knew about the order at the time of the alleged abduction, the court stated:

“[T]he fact when he learned of it was totally immaterial, totally immaterial, and whatever Masonick said or didn’t say or whenever he learned the order is not the point at all. The point is he is going with a woman to get custody of her child, and he knows that the custody is in the husband.
* * *
The facts will indicate that he went with her because she went to get the custody of her child from this horrible creature, the husband who was having it, now, you might say that, well, weren’t you presuming a little, Judge, in determining what they talked about when you come there, but when these people go to get the child or to find out the whereabouts or what the child is doing, you got to presume that the other guy has got the custody, especially if you are from the DCFS. It’s [sic] just doesn’t add up any other way, so please let’s forget about Masonick cause it’s not important at all.
MR. OBBISH [Cihlar’s attorney]: Well, what I think is important, though, Judge, is that you are saying — you are presuming something, but there is no evidence of it. You are presuming he knew about the order when there is no evidence as to when he found out about the order.
THE COURT: No, forget about the order, because the order doesn’t matter. I’m presuming that he knew that the husband had the custody.”
“[W]hen the trial court is the trier of the facts every presumption will be accorded that the judge considered only admissible evidence and disregarded inadmissible evidence in reaching his conclusion.” (People v. Wallenberg (1962), 24 Ill. 2d 350, 354.)

In Wallenberg, the court held that although the evidence was sufficient for conviction, the trial judge’s statement that, based upon his knowledge about a particular street, he did not believe the defendant’s story that there were no gas stations on a particular stretch of that street overcame the presumption of propriety and denied the defendant due process of law. The court held that “the trial judge’s statement, incorporated in the record, that he had considered matters which were not in evidence necessarily rebuts this presumption.” Wallenberg, 24 Ill. 2d at 354.

In the instant case, although the trial judge stated during the hearing on Cihlar’s post-trial motion that he considered only the testimony “of what took place in the alley,” and while, as noted above, he could have convicted Cihlar on the competent evidence alone, the statements he made while delivering his judgment and during the post-trial hearing demonstrate most strongly that he took into consideration his own beliefs about what Cihlar should have known as an “officer of the court.” For example, the judge stated that Cihlar’s intent to violate the court order was proved by his knowledge, as a DCFS employee, that Mitch had custody of the child. The State was required to prove, however, not only that Cihlar intended to deprive Mitch of his possession of Paul, but also that in doing so he intended to violate the court order granting possession to Mitch. There was no evidence that Cihlar’s status as a DCFS employee or as an ex-employee of that agency gave him any knowledge that Mitch’s possession of Paul was pursuant to a court order. In fact, the trial judge stated at one point that “the order doesn’t matter. I’m presuming that he knew that the husband had the custody.” He further explained that Masonick’s testimony that Cihlar was aware of the court order “is not the point at all. The point is he is going with a woman to get custody of her child, and he knows that the custody is in the husband.”

Section 10—5(b)(1) of the Code, however, requires intent to violate a court order. Regardless of Cihlar’s knowledge that Mitch had “custody” of Paul, it is elementary that he could not have intended to violate the court order unless he knew that it existed. The trial judge, however, presumed without any proof that merely because Cihlar was a DCFS employee, he knew that Mitch had custody, and dismissed the question about whether Cihlar knew about the court order. Indeed, the judge’s references to Cihlar’s status as a DCFS employee and his presumption that Cihlar was, as such, an officer of the court at one time or another, thus signifying that he knew of Mitch’s custody, run throughout the judge’s comments from the bench like a leitmotif. Therefore, because the judge pointedly ignored the language of the statute in finding Cihlar guilty, and instead based his finding of guilt upon evidence de hors the record, Cihlar’s conviction is reversed; however, because there was competent evidence upon which he could have been convicted, his cause is remanded for a new trial. Wallenberg, 24 Ill. 2d at 354.

Affirmed in part; reversed in part and remanded.

HARTMAN and DiVITO, JJ., concur.

      Although Judge DiVito did not participate in the oral argument had in this case, he has read the briefs and has otherwise participated in the decision-making process.