source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. CONLEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—2651
    Opinion filed August 2, 1989.

      Anna Ahronheim, of State Appellate Defender’s Office, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Lauren Brown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant’s motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months’ probation including 40 days of periodic imprisonment. On appeal, it is contended that: (1) the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability; (2) the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during defendant’s case in chief; (3) the trial court erred in allowing the admission of evidence elicited during State cross-examination that defense witnesses failed to tell police that the offender was another individual; (4) the State’s use during cross-examination and in closing argument of defendant’s pretrial silence deprived the defendant of a fair trial; and (5) the trial court erred in prohibiting defense counsel from arguing to the jury that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue. For the following reasons, we affirm.

The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O’Connell, attended the party with several friends. At some point during the party, Sean’s group was approached by a group of 20 boys who apparently thought that someone in Sean’s group had said something derogatory. Sean’s group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.

A group of people were walking toward the party from across the street when someone from that group shouted “There’s those guys from the party.” Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll 10 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.

At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio’s car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as “Crazy Bob” or “Terminator.” The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.

At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State’s Attorney advised the trial judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury’s silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. (People v. Thurman (1983), 120 Ill. App. 3d 975, 979, 458 N.E.2d 1038, aff’d in part and rev’d in part on other grounds (1984), 104 Ill. 2d 326, 472 N.E.2d 414; People v. Rollins (1982), 108 Ill. App. 3d 480, 485, 438 N.E.2d 1322.) Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.

The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O’Connell incurred a permanent disability. Section 12 — 4(a) of the Criminal Code of 1961 provides that: “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.

The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated, battery. The State relies on People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, and People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant’s conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300.) The starting point for this task is the language itself (People v. Boykin (1983), 94 Ill. 2d 138, 141, 455 N.E.2d 1174), and the language should be given its plain and ordinary meaning. (Steppan, 105 Ill. 2d at 317; People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991.) The defendant urges the court to adopt the definition found in Webster’s Third New International Dictionary which defines disability as an “inability to do something.” The State refers to additional language from the same source that a disability is a “physical or mental illness, injury, or condition that incapacitates in any way.” (Webster’s Third New International Dictionary 642 (1986).) There is some support for defendant’s proposed definition in an old Illinois decision. In Dahlberg v. People (1907), 225 Ill. 485, 80 N.E. 310, a woman was convicted of assault with intent to commit mayhem (aggravated battery incorporates the earlier offense of mayhem) after she threw red pepper at someone’s eyes and missed, hitting an innocent bystander in the eyes instead. Her conviction was reversed because the crime of attempt requires that the offender employ adequate means to accomplish the attempted result, and the evidence revealed that blindness could not have resulted had she succeeded. (Dahlberg, 225 Ill. at 490.) Thus, by necessary implication, anything short of blindness would not have supported a conviction for mayhem.

In arriving at a definition, however, it is also proper to consider the statute’s purpose and the evils sought to be remedied. (Steppan, 105 Ill. 2d at 316.) The Committee Comment explains that section 12 — 4(a) incorporates the old offense of mayhem. (Ill. Ann. Stat., ch. 38, par. 12 — 4(a), Committee Comment at 465 (Smith-Hurd 1979).) At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King’s right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:

“What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to' the preservation of the human body in normal functioning. The statutory counterparts of non-statutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim’s capacity for attack or defense, but the integrity of his person.” (Emphasis added.) (United States v. Cook (D.C. Cir. 1972), 462 F.2d 301, 303.)

Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O’Connell suffered are sufficient to constitute a permanent disability. Sean will endure permanent partial numbness in one lip and mucosal mouth. He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.

The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant’s argument is that under section 12 — 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.

The law on this question is unclear. The defendant relies upon People v. Crosser (1983), 117 Ill. App. 3d 24, 27, 452 N.E.2d 857, and Bay State Insurance Co. v. Wilson (1982), 108 Ill. App. 3d 1096, 440 N.E.2d 131, which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen (1969), 117 Ill. App. 2d 20, 254 N.E.2d 103. In Allen, the court wrote that in committing the offense of aggravated battery, “the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary.” (Allen, 117 Ill. App. 2d at 27-28.) The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. (Allen, 117 Ill. App. 2d at 28.) Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry (1974), 19 Ill. App. 3d 254, 259, 311 N.E.2d 341; however, specific intent analysis is applied in another decision by the third division in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927. The fifth division has also produced inconsistent decisions. In People v. Gomez (1986), 141 Ill. App. 3d 935, 939, 491 N.E.2d 68, it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1069, 513 N.E.2d 1083.

For proper resolution of this issue, it is best to return to the statutory language. Section 12 — 4(a) employs the terms “intentionally or knowingly” to describe the required mental state. The relevant statutes state:

“4 — 4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.)
“4 — 5. Knowledge. A person knows or acts knowingly or with knowledge of:
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5.)

Section 12 — 4(a) defines aggravated battery as the commission of a battery where the offender intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either had a “conscious objective” to achieve the harm defined, or that the defendant was “consciously aware” that the harm defined was “practically certain to be caused by his conduct.” (See People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442.) This is the identical construction found in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927, which we conclude is the correct statement of the law.

Although the State must establish the specific intent to bring about great bodily harm, or permanent disability or disfigurement under section 12 — 4(a), problems of proof are alleviated to the extent that the ordinary presumption that one intends the natural and probable consequences of his actions shifts the burden of production, though not persuasion, to the defendant. (Farrell, 89 Ill. App. 3d at 265.) If the defendant presents evidence contrary to the presumption, then the presumption ceases to have effect, and the trier of fact considers all the evidence and the natural inferences drawn therefrom. (Farrell, 89 Ill. App. 3d at 265.) Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (See, e.g., Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 126-27, 257 N.E.2d 256.) As the defendant’s theory of the case was mistaken identity, there was no evidence introduced negating the presumption of intent. However, even if Conley had denied any intention to inflict permanent disability, the surrounding circumstances, the use of a bot-tie, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability. Therefore, we find the evidence sufficient to support a finding of intent to cause permanent disability beyond a reasonable doubt.

The defendant next contends that the trial court improperly restricted the scope of his examination of State witness Marty Carroll during his case in chief. During the evening following the close of the prosecution’s case, Conley remembered having a conversation with Carroll at another party where Carroll allegedly made a statement inconsistent with his testimony. Advised of this development, the trial judge permitted the defendant to recall Carroll so that a foundation could be established for later impeachment when Conley testified. After a foundation had been laid, the trial court prohibited the defendant from pursuing an additional line of questioning when the State objected to questions asking Carroll to describe the offender.

The defendant’s argument assumes that People v. Aughinbaugh (1967), 36 Ill. 2d 320, 223 N.E.2d 117, and People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433, are controlling. These decisions hold that where identification is a principal issue at trial, the defendant is entitled to wide latitude in conducting cross-examination of identification witnesses. These decisions, however, are limited to cross-examination during the State’s case in chief. It is well established in Illinois that the decision to recall a witness for further cross-examination after the close of the adversary’s case is within the sound discretion of the trial court. (People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.) The trial court’s decision on this matter will not be reversed absent a clear abuse of discretion. (Smith, 149 Ill. App. 3d at 152.) In People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394, the defendant argued that his right to due process was violated when the trial court denied his request to recall three witnesses for additional cross-examination in his case in chief. The court held that there was no abuse of discretion where the defendant had an opportunity to cross-examine the witnesses, the questions the defendant wished to ask could have been presented at defendant’s previous cross-examination during the State’s case, and the evidence the defendant hoped to introduce had little probative value. (Dorsey, 109 Ill. App. 3d at 229. See also People v. Lewis (1980), 89 Ill. App. 3d 840, 845, 412 N.E.2d 565.) Here, the defendant had an opportunity to cross-examine Marty Carroll during the State’s case and his questions regarding the offender’s description should have been presented at that time. Therefore, there was no abuse of discretion in prohibiting the defendant from pursuing this line of questioning.

Next, the defendant argues that the trial court erred in permitting improper impeachment of four defense witnesses. Matt Tanzer, Kevin McGinley, and Joseph Longhini testified they were present when Sean was hit and that Bob Frazer, and not the defendant, was the culprit. Scott Bucich testified that he observed the defendant in a different altercation not involving Sean. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The defendant maintains that the trial court erroneously overruled his objections for lack of foundation because there was no showing that the police or other authority ever questioned these witnesses. The defendant relies on People v. Fabian (1976), 42 Ill. App. 3d 934, 356 N.E.2d 982, construing that decision to hold that a witness’ failure to volunteer knowledge of a murderer’s identity to police during earlier conversations was not impeaching because the police never inquired as to his ability to identify the offender. Defendant’s reliance on Fabian is misplaced, however, as the issue in Fabian was the weight, and not the admissibility, of the evidence in determining whether the defendant was proved guilty beyond a reasonable doubt. Fabian, 42 Ill. App. 3d at 938.

The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness’ testimony if: (1) it is shown that the witness had an opportunity to make a statement, and (2) under the circumstances, a person would normally have made the statement. (People v. McMath (1968), 104 Ill. App. 2d 302, 315, 244 N.E.2d 330, affd (1970), 45 Ill. 2d 33, 256 N.E.2d 835, cert. denied (1970), 400 U.S. 846, 27 L. Ed. 83, 91 S. Ct. 92.) At issue here is whether the State properly established the required evidentiary foundation for this impeachment. In People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3, two defense witnesses testified that the victim of a shooting had been shot by his own brother, and not by the defendant, when the brother fired a gun into a crowd during a street altercation. The witnesses admitted on cross-examination that they failed to go to the police with this information which may have exonerated the defendant. The court held this impeachment was proper because the witnesses, who were friends of the defendant, knew of the defendant’s arrest eight months before trial. (Taylor, 141 Ill. App. 3d at 845-46.) And in People v. Martinez (1979), 76 Ill. App. 3d 280, 284-85, 395 N.E.2d 86, this court ruled that a prosecutor’s questions regarding a witness' failure to go to the police were permissible where the witness who was a friend of the accused waited eight months to tell his story supporting the defendant’s claim of self-defense. On the other hand, in People v. Watson (1981), 94 Ill. App. 3d 550, 557-58, 418 N.E.2d 1015, similar impeachment of an alibi witness was held improper for lack of foundation where the witness did not learn of the defendant’s alleged crime until five months after his arrest, and the State did not attempt to interview the witness despite receiving notice of defendant’s alibi defense. Read together, these decisions indicate that where a witness is a friend of the accused, and has had knowledge of the friend’s arrest before trial, evidence of the witness’ failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities. For the case before us, resolution of this issue requires an examination of the pertinent testimony of each witness.

Matt Tanzer testified that he was a close friend of the defendant. Tanzer also testified that he had discussed the case with the defendant and other friends before trial. Although there was no testimony elicited on cross-examination as to how much time had elapsed before trial during which Tanzer knew of the defendant’s arrest, we do not believe this less than perfect examination to be reversible error. Thus, a sufficient foundation was established for impeaching Tanzer.

Joseph Longhini testified he had only known the defendant for less than a year and was not a close friend. However, Longhini also testified that he discussed the case with the defendant before trial and told him he would be available if the defendant needed him. Thus, a sufficient foundation was established.

Kevin McGinley testified that he was a close friend of the defendant. However, in addition to the absence of testimony indicating when he first learned of the defendant’s arrest, there was also no testimony that he had discussed the case with anyone. Moreover, no investigators for the police or the State ever questioned McGinley as to what he knew. Therefore, use of his prior silence was improper for lack of foundation.

Scott Bucich testified that he had known the defendant for a number of years. Bucich also testified that he discussed the case with the defendant before trial when the defendant called him to learn what Bucich knew of the incident. However, Bucich was a witness only to the defendant’s altercation with another individual named John O’Brien. Under these circumstances, a friend of the accused would not normally go to the police to volunteer information pertaining to a separate fight. Thus, the use of Bucich’s prior inaction was improper.

• 14, 15 Nonetheless, this court finds these errors to be harmless. Error is harmless where a reviewing court can safely conclude, after consideration of the totality of the evidence, that a trial without the error would not produce a different result. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.) To say that the failure of McGinley and Bucich to volunteer information to the police affected the outcome of the case is speculative, especially in view of the fact that Tanzer and Longhini were properly impeached.

The fourth issue raised by the defendant is whether the State improperly used the defendant’s pretrial silence to impeach his mistaken identity theory in violation of the due process clause of the fourteenth amendment and Illinois evidentiary law. The State sought to discredit the mistaken identity theory as a recent fabrication since the defendant failed to inform the police about Bob Frazer, who the defendant claimed at trial to be the true offender. Examination of this issue must be in two parts as reference was made at trial to two separate occasions where the defendant did not inform the police of the identity of the individual claimed to be the true offender. We first address the State’s use of the defendant’s pre-arrest silence.

On October 7, Officer Houlihan visited Andrew High School and obtained permission to interview the defendant. Houlihan read the Miranda warnings to the defendant before proceeding with the interview. There was conflicting testimony as to what exactly the defendant had said during his interrogation at Andrew High School. Investigator Houlihan testified that Conley admitted to striking an individual he didn’t know with his fist and that the individual fell to the ground. The defendant, however, testified that he had told Houlihan that he fought an individual by the name of John O’Brien and that he gave a description of O’Brien to Houlihan. The defendant further testified that Houlihan stated he had a report of only one fight involving Sean O’Connell and asked him why his fight had not been reported. Conley responded that he didn’t know but that it probably was not reported because no one was hurt. Nevertheless, it is clear that Conley never mentioned the name of Bob Frazer to Houlihan when questioned about his activities at the party and that this fact was elicited during his cross-examination. The record reveals the following colloquy:

“Q. And so you saw Marty Carroll at the second Sandora party that you made?
A. Yes, I did.
Q. And he was pointing a finger at you?
A. He sure did.
Q. He said, ‘That’s the guy who hit Shawn with the bottle.’
A. Yes.
Q. You said to him, ‘It wasn’t me. I know who did it.’ Didn’t you say that?
A. Yes, I did.
Q. And you told Officer Houlihan who that was, didn’t you?
A. No, I did not tell him.
Q. I have nothing further.”

The defendant did not object to the State’s question because he felt that his silence could be adequately explained. On redirect, the defendant testified that he had not learned of Bob Frazer until two to three weeks after his interview with Houlihan. The defendant now argues that the State’s use of this silence was improper under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle v. Ohio, the United States Supreme Court held that use of a defendant’s post-arrest silence to impeach his exculpatory testimony offered for the first time at trial is a deprivation of due process of law. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) The court reasoned that silence following recitation of the Miranda warnings may be nothing more than the arrestee’s exercise of those rights and, therefore, post-arrest silence is always “insolubly ambiguous.” (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court further reasoned that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused invoke that right. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Therefore, the Court concluded that it would be fundamentally unfair to permit use of such silence against the accused after inducing him to remain silent. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Because Conley was successfully rehabilitated on redirect (cf. United States v. Wilkins (7th Cir. 1981), 659 F.2d 769, 776), we conclude that if the State’s use of Conley’s pre-arrest silence violated Doyle, such error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

• 17 Following redirect, however, the State again sought to impeach the defendant’s mistaken identity theory on recross, using the defendant’s post-arrest silence. On October 16, nine days after his interview with Houlihan, the defendant participated in a lineup. At the conclusion of the lineup, the defendant was placed under arrest at which time no statements were made. The record does not reveal whether the defendant was advised of his Miranda rights, but it appears that Conley was not so advised immediately upon his arrest. Following the defendant’s rehabilitation on redirect, the State countered on recross with a reference to the defendant’s silence following his arrest. The record reveals the following colloquy:

“Q. You saw Houlihan on October the 16th, didn’t you?
A. I believe that was the date for the line-up. I’m not sure.
Q. And after the lineup, that’s when Officer Houlihan told you you’re under arrest, isn’t that right?
A. I believe so.
Q. And at that time you didn’t tell officer — .
DEFENSE COUNSEL: I’m objecting now.
THE COURT: Sustained.
PROSECUTOR: I have nothing further, Judge.”

The State contends, first, that its reference to Conley’s post-arrest silence did not deprive him of due process because he had not been advised of his Miranda rights upon arrest. The State relies upon Fletcher v. Weir (1982), 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309, which held that cross-examination as to post-arrest silence is permissible where such silence has not been induced by the governmental assurances embodied in the Miranda warnings. (Fletcher, 455 U.S. at 607, 71 L. Ed. 2d at 494, 102 S. Ct. at 1312.) The State also contends there was no “use” of silence because the State was prevented from completing the question when the trial court sustained the defendant’s objection, and the jury was instructed to disregard questions to which objections were sustained. (See Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) The defendant argues, however, that Fletcher is inapplicable because he had been advised of his Miranda rights nine days before his arrest at the October 7 interview. The defendant further contends that Greer v. Miller is inapposite because, unlike Greer, the trial court failed to immediately admonish the jury after sustaining his objection, and the prosecutor defied the trial court by mentioning the defendant’s silence in rebuttal argument. On the other hand, the defendant contends that the State’s inquiry into his post-arrest silence is in violation of Illinois evidentiary law even if he has not been deprived of due process. (See People v. McMullin (1985), 138 Ill. App. 3d 872, 486 N.E.2d 412.) Because Doyle establishes only a minimum constitutional threshold for fairness under the due process clause, each jurisdiction is free to define for itself when silence is more probative than prejudicial under its rules of evidence. (See Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) The defendant’s silence was not admitted into evidence, however, as the trial court sustained the defendant’s objection. Thus, the defendant’s argument on this point is without merit.

We decline to hold that the Miranda warnings Conley received at the October 7 interrogation induced him to remain silent upon his arrest nine days later. Initially, we note that had Conley made incriminating statements during a second interrogation following arrest without being advised of his Miranda rights, Conley would be taking a position contrary to the one he advocates here— that is, Conley would be arguing that the Miranda warnings given nine days earlier are insufficient. (See People v. Rosario (1972), 4 Ill. App. 3d 642, 645-46, 281 N.E.2d 714.) Moreover, Conley agreed to talk with Officer Houlihan on October 7. If the Miranda warnings did not induce him to remain silent on October 7, then we cannot say those same warnings induced him to remain silent nine days later. Therefore, on the facts presented here, we do not believe Doyle applies.

Nonetheless, we further find that there was no “use” of the defendant’s post-arrest silence. In Greer v. Miller, the Supreme Court stated it was significant that in each of the cases in which it applied Doyle, the trial court had “permitted specific inquiry or argument respecting the defendant’s post-Miranda silence.” (Greer v. Miller, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) The Court concluded there was no Doyle violation because the trial court sustained the defendant’s objection, no further comments were made during the remainder of the trial, and the trial court instructed the jury to disregard questions to which objections were sustained. (Greer, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) Here, the trial court did not permit specific inquiry or argument. As in Greer, Conley’s objection was sustained. The jury was also instructed to disregard questions to which objections were sustained, and unlike Greer, the question posited to Conley was never completed. As to the prosecutor’s comment during rebuttal argument, the trial court sustained Conley’s objection and, thus, argument respecting Conley’s silence was not permitted.

The defendant distinguishes Greer on the ground that the trial court here did not admonish the jury after sustaining his objection. A careful reading of Greer reveals, however, that the admonishment referred to by the defendant was only a direction to “ignore [the] question for the time being.” (Greer, 483 U.S. at 759, 97 L. Ed. 2d at 626, 107 S. Ct. at 3105.) No specific instruction was given. Further, as in Greer, Conley failed to request the trial court to give a specific instruction. (Greer, 483 U.S. at 764 n.5, 97 L. Ed. 2d at 629 n.5, 107 S. Ct. at 3108 n.5.) Therefore, we hold there was no specific inquiry or argument respecting Conley’s silence.

The defendant’s fifth and final contention is that he was improperly precluded from arguing to the jury that Sean’s family had a financial motive in securing a verdict due to the extensive dental work that had been performed. The defendant was attempting to discredit the credibility of State witness Demetrius Kereakas, who had testified that he identified Conley from a picture in an Andrew High School yearbook. The testimony revealed that Mr. O’Connell had visited Demetrius at Richards High School where Mr. O’Connell had given Demetrius the yearbook. The defendant argues that Kereakas’ credibility is suspect because no one besides Mr. O’Connell was present when Kereakas made the identification, and Mr. O’Connell may have pressured Kereakas into picking Conley.

Closing argument must be based on the evidence or on the reasonable inferences drawn therefrom. (People v. Bullock (1987), 154 Ill. App. 3d 266, 273, 507 N.E.2d 44.) The defendant correctly states that financial bias is a legitimate method of impeaching the credibility of a witness. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422, 425.) Here, however, the individual with the alleged financial bias is Mr. O’Connell, who did not testify. Demetrius Kereakas has no financial interest, and Mr. O’Connell’s bias cannot be transferred to Kereakas. There was no evidence that Mr. O’Connell pressured Kereakas or engaged in suggestive conduct which could have led Kereakas to Conley’s photograph. Therefore, the trial court properly sustained the State’s objection to the defendant’s remarks.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.

      The State’s expert witness never defined mucosal mouth and its meaning cannot 'be gleaned from the record. The defendant, however, never challenged the expert’s testimony.


author: PRESIDING JUSTICE MURRAY

text:
      In re ESTATE OF VINCENT PANZECA, Deceased (Consiglia Panzeca, Petitioner-Appellee, v. Natale Panzeca, Indiv. and as Ex’r of the Estate of Vincent Panzeca, Deceased, Respondent-Appellant).
    First District (5th Division)
    No. 1—87—3511
    Opinion filed August 4, 1989.
    Patrick M. Loftus, of Hubert J. Loftus, Ltd., of Addison, for appellant.
    Matthew A. LaSusa, of LaSusa & LaSusa, of Des Plaines, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Decedent Vincent Panzeca died testate on June 30, 1982. He had previously drafted and properly executed his own will in July 1981. Petitioner Consiglia Panzeca is his surviving spouse, and respondent Natale Panzeca, a son from testator’s first marriage, was named executor in the will. Testator was survived by his second wife (petitioner), four children of his first marriage, and ah adopted daughter. After providing for payment of debts and expenses, a $5,000 bequest to a grandson, and other dispositions, the will contained the following paragraphs, the meaning of which is disputed in this case.

“I order and direct that my present wife CONSIGLIA PANZECA, at my death, shall be usufructuary, while she is living, of the house that I own here in Chicago, and of the rest of my estate, real, personal, or mixed, of whatsoever nature, kind or sort, and wheresoever situated, to which I may be entitled, or which I may have power to dispose of at my death.
At the death of my wife CONSIGLIA PANZECA, all my estate, as described in the preceding paragraph, shall be divided as follows: One half (fifty percent) to my daughter from my first marriage, ANNA PANZECA. The remaining one half (fifty percent) shall be divided in equal shares, among the following four persons:
1) NATALE PANZECA, my son from my first marriage;
2) GEORGE PANZECA, my son from my first marriage;
3) JOSEPHINE CAMPISI-PANZE CA, my adopted daughter;
4) GIOVANNI CAMPISI, my step-son.”

The parties agree that petitioner’s interest in the real estate is identical to that of a life estate. They also agree that petitioner is entitled to the interest generated by the rest of the estate, which consists of cash assets totalling approximately $33,000. The sole issue in this appeal is whether petitioner, as usufructuary of the estate, is entitled to spend the principal ($33,000). The trial court, relying on Louisiana law for guidance in interpreting “usufruct,” held that petitioner is entitled to expend the principal subject to a no-waste proviso, and that an accounting be made at the end of her term as usufructuary (upon her death).

After denial of his motion to reconsider and motion for modifieation/clarification, respondent appealed. We affirm for the following reasons.

It is clear in this case that the testator gave his wife a usufruct in his entire estate. There is also no dispute that the usufruct in the real estate is to be treated as a life estate. However, the parties cannot agree as to the distribution of the bank accounts totalling $33,000. Respondent argues that Louisiana law should not be relied on to give petitioner a right to expend the principal — she is only entitled to the equivalent of a life estate, i.e., the income or interest therefrom. Petitioner responds that Louisiana law is the proper source to turn to in order for the court to discern testator’s intent when he willed a usufruct to his wife.

We agree with petitioner and the trial court’s excellent discourse on the meaning of usufruct as it applies to the cash in the estate.

In civil law, usufruct is the right of enjoying a thing, the property of which is vested in another, and to receive from it all the profit, utility, and advantage which it may produce, provided it be without altering the substance of the thing, e.g., house. (La. Civ. Code Ann. art. 536 (West Supp. 1989).) An imperfect or quasi-usufruct is composed of things which would be useless to the usufructuary if he did not consume or expend them or change their substance, e.g., money. (La. Civ. Code Ann. art. 537 (West Supp. 1989).) (Note that although usufruct articles were revised by Louisiana in 1977 and 1981, the provisions relevant to the present case are substantively unchanged, except where noted.) The owner of an imperfect usufruct has a right to dispose of the things at his pleasure, but also has an obligation to return the same quantity, quality, and value to the owner at the expiration of the usufruct. La. Civ. Code Ann. art. 538 (West Supp. 1989).

These Louisiana definitions are similar to many of the civil law countries (e.g., Italy, Greece, Switzerland), and are practically identical to the French Code, from which most of Louisiana law of succession was derived. We must look to Louisiana law since it is the only State in the United States that currently follows the civil law of succession. Usufruct has been interpreted in common law States infrequently, and then usually in connection with water or utility rights. See, e.g., Clark v. Lindsay Light & Chemical Co. (1950), 405 Ill. 139 (a person had a right to use and enjoy water from stream flowing through his land as a usufruct, but property rights were vested in another).

Since wills are seldom alike, precedents in other will cases are seldom of controlling importance in determining a testator’s intent. (Stites v. Gray (1954), 4 Ill. 2d 510.) However, we can examine the application of Louisiana law regarding testamentary usufructs for guidance in determining what the testator meant when he used the word “usufruct” in our case. In other words, we can be guided by Louisiana law as to the meaning of “usufruct” but then must apply that meaning within the context of our rules governing the determination of a testator’s intent. This is especially true since several of the underpinnings of the laws of succession in civil law jurisdictions differ greatly from those in common law jurisdictions, such as Illinois.

In Louisiana and civil law countries, the laws of succession generally involve three doctrines: community property, forced heirship, and prohibition of trusts (although Louisiana has now adopted a limited version of the common law trust). (Comment, Forced Heirs, The Legitime & Loss of the Legitime in Louisiana, 37 Tul. L. Rev. 710 (1963).) These doctrines are used to effect the concept of “universal succession,” an idea originating in early Roman law and used to ensure that a decedent’s estate would pass undivided to his heirs. Based on early social and religious values, universal succession was intended to perpetuate the family and ensure that there would be in existence a person obliged to maintain the family worship and reverence of ancestors; the doctrine’s later purpose was to ensure economic provision for a decedent’s heirs. (Pelletier & Sonnenreich, A Comparative Analysis of Civil Law Succession, 11 Vill. L. Rev. 323 (1966).) Since a forced heir can only be a descendant of a decedent, the usufruct evolved to give a surviving spouse a means of supporting herself and any surviving children. Hall v. Toussaint (1900), 52 La. Ann. 1763, 28 So. 304.

This far from complete synopsis of the principles of civil law succession was undertaken to demonstrate the difference between a surviving spouse’s position in, for example, Illinois and Louisiana. An Illinois resident has an absolute right to dispose of his property during his lifetime in any manner he chooses, even though the purpose of the transfer is to defeat a spouse’s statutory share; such a transfer is valid unless it is a sham or fraudulent. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342.) In the present case, petitioner had the option of election against the will, whereupon she would have received outright ownership of one-third of the estate. See Ill. Rev. Stat. 1981, ch. 110½, par. 2 — 8(a).

On the other hand, when a decedent in Louisiana is survived by a second spouse and also by children of a first marriage, until recently his powers of disposition were quite limited so as to assure the heirs’ forced shares — one-half of his estate if survived by two or more children. (La. Civ. Code Ann. art. 1493 (West Supp. 1989).) Amendments in 1981 liberalized the complex rules so that now a second wife (or husband) can be given a usufruct for life, or until remarriage, in the decedent’s entire estate. (La. Civ. Code Ann. art. 890 (West Supp. 1989); see generally Comment, New Hope for the Survivor: The Changes in the Usufruct of the Surviving Spouse, 28 Loy. L. Rev. 1095 (1982).) Moreover, unlike Illinois, surviving spouses in Louisiana automatically receive one-half of the community marital property.

Thus, it appears that in civil law jurisdictions, a testator’s intent is not the primary consideration in construing a will but is a consideration only as to the disposable portion of his estate (i.e., that portion he would be free to devise to one not an heir). However, the primary goal of any Illinois court in construing a will is to determine the testator’s intent and, if not against public policy, to give it effect. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1.) When a will’s meaning is obscure, doubtful, or uncertain, the presumed intention may be determined by using certain rules of construction; the controlling intent is that which is manifest, either expressly or impliedly, from language, and the whole will and all of its parts must be considered in order to ascertain the testator’s intention. Hoge v. Hoge (1959), 17 Ill. 2d 209.

Moreover, courts will generally prefer construction of a will which most closely follows statutes of descent. (Continental Illinois National Bank & Trust Co. v. Llewellyn (1966), 67 Ill. App. 2d 171.) Where there are descendants of decedent and a surviving spouse (in 1981), the spouse receives one-half of decedent’s entire estate — real and personal. (Ill. Rev. Stat. 1981, ch. 110½, par. 2 — 1(a).) However, if we follow respondent’s line of reasoning, petitioner would receive nothing under her husband’s will but a life estate in their home and interest derived from $33,000.

Looking at the language of testator’s will, it appears that he wanted to devise his estate to those of his family who could use the inheritance. He gave $10 to each of two sons by his first marriage, “not because I have no affection towards them, but because they are not in need of my money.” He also bequeathed $5,000 to a grandson. He gave his wife a usufruct in all of the property over which he had the power of disposal. Then, after these instructions, at the death of his wife, all of his estate, as described in the usufructuary clause, was to be divided in shares — 50% to a daughter of his first marriage and the remaining 50%, in equal shares, to two sons from his first marriage and to his adopted daughter and a stepson.

This very careful division of testator’s estate leads us to conclude that he was aware that, were he in a civil law jurisdiction, only his direct descendants (and adopted child) would inherit after the usufruct terminated and, further, the shares would differ from his allocations. From this disposition, we can also infer that he was aware that, under Illinois law, he was not required to abide by the forced heir doctrine. Accordingly, we can also presume that testator expected the usufruct to be applied as it is usually applied under civil law. Thus, respondent’s argument that we must apply “life estate law” to interpret what testator intended when he used the word “usufructuary” is not consistent with our rules of construction.

In Illinois, intention of a testator is to be determined by giving effect to every word, phrase, and clause in the will, if possible. (In re Estate of Bridges (1983), 95 Ill. 2d 383.) No applicable language can be ignored and no words, clause, or language should be arbitrarily rejected as meaningless, insignificant, or surplusage. (Untz v. Untz (1979), 74 Ill. App. 3d 133.) Moreover, a testator is presumed to have known the law in force when the will was drafted and to have made the will in conformity with that law. (In re Estate of Hughlett (1983), 113 Ill. App. 3d 910.) Testator’s will was drafted in 1981. At that time, life estates were commonly utilized in Illinois wills. Yet testator chose to grant his wife a usufruct instead of a life estate. Pursuant to our rules of construction, we cannot ignore his choice of the word “usufructuary” instead of “life estate.”

We admit that Louisiana law is not controlling in this case. However, in construing the term “usufruct,” which is foreign to our laws of succession, we must look for guidance to a civil law jurisdiction for the accepted meaning of the word. Louisiana is the only such jurisdiction in this country although, as noted before, other civil law jurisdictions are, for the most part, similar in their application of usufructs.

In 1981, most of the Louisiana cases concerned with applying a testamentary imperfect usufruct concluded that a surviving spouse was entitled “to spend or dispose of the moneys subject to the usufruct at her pleasure.” (Mariana v. Eureka Homestead Society (1935), 181 La. 125, 133, 158 So. 642, 645.) Despite respondent’s contentions, the Mariana rule is still followed today. However, it must be noted that the usufructuary’s right to spend the cash is subject to her obligation to return “the same quantity, quality and value to the owner, or their estimated price, at the expiration of the usufruct.” (La. Civ. Code Ann. art. 549 (West Supp. 1989).) Also, a usufructuary should not commit waste. (La. Civ. Code Ann. art. 623 (West Supp. 1989).) The returning of the same value is accomplished by the rendering of an accounting to the “naked owners” (heirs) at the termination of the usufruct, i.e., they must look to the usufructuary’s estate for an accounting of the expended funds. Fenger v. Cagnolatti (La. App. 1974), 292 So. 2d 901.

This contradiction was discussed in Stewart v. Usry (5th Cir. 1968), 399 F.2d 50 (tax case to determine whether an imperfect usufruct qualified for the marital deduction for Federal estate taxes). Therein the court stated that “[ajlthough, as a practical matter, a surviving spouse may completely deplete, by use, disposition, or otherwise, the property which she is allowed to use and enjoy, the reverse inference is true also — she may not so deplete the property.” (399 F.2d at 56.) The court concluded that the usufruct did not qualify for a deduction because, even if the spouse consumed all of it, she could not deprive the heirs of their inheritance since, at her death her estate would be required to account to them. (399 F.2d at 57.) Respondent argues that Stewart holds that a usufructuary’s right to dispose of property is not absolute. This is correct but limited. The Stewart ruling qualifies the spouse’s ownership by stating that it is not absolute since it is subject to an accounting at the end of the usufruct.

Accordingly, since the Louisiana application of usufruct would give a result more closely aligned with our statutes of descent, and since we presume the- testator knew the commonly accepted (in civil law jurisdictions) application of a usufruct, we must affirm the trial court’s finding that petitioner is entitled to use the income and consume and dispose of the cash assets subject to a duty not to waste, to render an accounting, and, if necessary, to provide restitution from her estate at the expiration of the usufruct.

Affirmed.

LORENZ and COCCIA, JJ., concur.


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHESTER BARFIELD, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3041
    Opinion filed August 4, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Greg Foster and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant was indicted by a grand jury on one count of aggravated sexual assault based on the age of the victim, one count of criminal sexual assault, one count of aggravated criminal sexual abuse based upon the age of the victim, one count of unlawful restraint, and one count of aggravated criminal sexual assault based upon the use of force. Before trial, the defendant moved to suppress the statement he had made to the assistant State’s Attorney while in custody. After a hearing, the motion to suppress was denied by the trial judge.

Following a bench trial, the defendant was convicted of aggravated criminal sexual assault of a victim under 13 years of age (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)) and sentenced to seven years’ incarceration. Defendant appeals, raising three issues: (1) whether the victim was competent to testify; (2) whether the mother’s testimony was beyond the scope of that permitted by section 115 — 10 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10), and therefore, inadmissible; and (3) whether the defendant was proven guilty beyond a reasonable doubt.

The only facts not in dispute at the trial were that at approximately 1:30 a.m. on July 20, 1986, the mother was outside her apartment building talking with a friend. Her 12-year-old daughter (the victim) was in their first-floor apartment. The 33-year-old defendant entered the apartment and had sexual intercourse with the girl.

The victim testified that the defendant came to the apartment saying that her mother had asked for a chair, that she told defendant to wait in the hall while she got the chair, but that when she returned she found that he had entered the apartment. The victim testified that the defendant then grabbed her by the arm, pushed her into a closet, tore at and pulled down her shorts, and raped her. The defendant then ran out of the apartment and the victim ran downstairs to tell her mother what had happened.

While persons aged 14 years of age and older are presumed competent to testify in court in Illinois, it is for the trial judge to determine whether a child under the age of 14 is competent to testify. (In re E.S. (1986), 145 Ill. App. 3d 906, 908, 495 N.E.2d 1334, 1335.) Competency depends not upon a child’s age but her intellectual ability. (In re A.M.C. (1986), 148 Ill. App. 3d 775, 778, 500 N.E.2d 104, 106.) The determination of a minor’s competency to testify is to be made by the trial judge, who has the best opportunity to observe the witness’ demeanor and judge her credibility (People v. Campos (1987), 155 Ill. App. 3d 348, 357, 507 N.E.2d 1342, 1347-48), and this determination should not be disturbed on review unless it is clear that the determination of competency was a manifest abuse of discretion or misapprehension of a legal principle. People v. Keesee (1977), 47 Ill. App. 3d 637, 641, 365 N.E.2d 53, 56; In re Cruz (1979), 76 Ill. App. 3d 565, 568, 395 N.E.2d 388, 390.

The criteria for determining whether a child is competent to testify in court are whether “the witness is sufficiently mature (1) to receive correct impressions by his senses, (2) to recollect these impressions, (3) to understand questions and narrate answers intelligently, and (4) to appreciate the moral duty to tell the truth (and comprehend the meaning of the oath).” People v. Sims (1969), 113 Ill. App. 2d 58, 61, 251 N.E.2d 795, 797.

It is not necessary for the child to give perfect answers to questions asked during the competency determination or at trial for the child to be deemed a competent witness. (People v. Powell (1985), 138 Ill. App. 3d 150, 156, 485 N.E.2d 560, 564, citing People v. Novotny (1968), 41 Ill. 2d 401, 411-12, 244 N.E.2d 182, 188, and People v. Newbern (1974), 18 Ill. App. 3d 532, 540, 310 N.E.2d 42, 48.) Here, the victim was not certain of her year in school, which could be explained by the fact that there was a teacher’s strike in progress at the time. The victim admitted that she had made a mistake as to the name of her school, showing awareness of her answers and of the facts. When asked on cross-examination the year she was bom, the victim answered “1974,” which date was later corroborated by her mother. “Minor discrepancies in a child’s testimony do not necessarily render the testimony incompetent, unbelievable, or necessarily impeached” (People v. Brewer (1983), 118 Ill. App. 3d 189, 193, 454 N.E.2d 1023, 1027, citing People v. Sharp (1943), 384 Ill. 503, 506-07, 51 N.E.2d 554, 556), but are to be weighed against the credibility of the witness’ testimony. (People v. McNichols (1986), 139 Ill. App. 3d 947, 953, 487 N.E.2d 1252, 1257.) It is for the trier of fact to determine the witness’ credibility. People v. McCoy (1987), 156 Ill. App. 3d 194, 200, 509 N.E.2d 567, 571.

Although the defendant places significance on the victim’s statement that liars get in trouble “[w]ith your friends” and not with God, in determining the competency of a witness, courts have held that religious opinion or belief is no longer a requisite. (People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, 12, citing People v. Marsh (1949), 403 Ill. 81, 91, 85 N.E.2d 715, 720.) Other juvenile witnesses have been found competent who said that if they lie they get “grounded” (People v. Goble (1976), 41 Ill. App. 3d 491, 498, 354 N.E.2d 108, 114), or punished by their mother (People v. Brewer (1984), 127 Ill. App. 3d 306, 308, 468 N.E.2d 1242, 1243).

Although the victim’s testimony on the record appears hesitant, and the People noted that she is “a little slow for 12 years of age,” the trial court held that “under all the attendant circumstances, *** I would find that she is competent.” The record supports the trial court’s finding of the minor witness’ competency to testify, and on review we will not overturn that finding.

We next consider the defendant’s argument that the victim’s mother should not have been allowed to testify in court that her daughter told her that he had raped her. In pertinent part the statute under which the mother’s testimony was admitted provides:

“§115 — 10. 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 that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.)

Here the victim testified at the proceeding. The only issue to be decided then is whether the strictures of section 115 — 10 have been met in admitting the testimony of the mother as to the victim’s statements to her immediately following the occurrence.

The victim testified that she ran downstairs immediately after the attack and told her mother what had happened to her. The victim testified that she was crying and that the defendant had “snatched the button off of” her shorts. Her mother testified to what she saw: that her daughter came downstairs screaming and crying, and that “she had on some red shorts and *** the button on the shorts was brokefn].” The mother also testified that her daughter told her that Chester had raped her.

The mother’s testimony which reports exactly what the victim said to her is admissible when the statement, as here, was made to her immediately after the incident. (In re C.K.M. (1985), 135 Ill. App. 3d 145, 149, 481 N.E.2d 883, 886; People v. Boastick (1986), 140 Ill. App. 3d 78, 87, 488 N.E.2d 326, 332.) In discussing the admissibility of the testimony of certain witnesses in a rape case as to out-of-court statements made by the victim, including that of the mother of the minor victim, the court in In re C.K.M. discussed the spontaneous declaration or corroborative statement exception to the hearsay rule. In permitting such testimony, the court held that in order to qualify the witness’ statement as an exception to the hearsay rule, the victim’s statement to the witness must be spontaneous and not made as a result of questions to which answers are given, the statement of the victim must be promptly made to the witness without unexplained delay, and the victim must be a witness in the proceeding. People v. Fuelner (1982), 104 Ill. App. 3d 340, 349, 432 N.E.2d 986, 993.

The spontaneous declaration which qualifies as an exception to the hearsay rule must result from an occurrence which is sufficiently startling to produce a spontaneous or unreflecting statement, there must be no time to fabricate, and the statement must relate to the occurrence. People v. McNichols, 139 Ill. App. 3d at 954, 487 N.E.2d at 381, citing People v. Sanchez (1982), 105 Ill. App. 3d 488, 491, 434 N.E.2d 395, 397.

In the instant case, the mother testified that her daughter came downstairs screaming and told her that Chester had raped her. The victim testified that as soon as the defendant left her, she ran downstairs and told her mother what had happened. Because the victim had testified, the mother’s testimony was offered as corroboration. We hold that it was not error for the trial court to permit the mother to testify as to her daughter’s statements made immediately after the attack.

The defendant argues that the testimony of the victim and her mother was unconvincing. The trial court determined their testimony to be credible. As the trier of fact, the trial court was best able to observe their demeanor and determine their credibility.

The defendant did not testify at trial. Assistant State’s Attorney Telander testified as the prosecution’s witness that while defendant was in custody and after he had been advised of his rights, the defendant signed a statement detailing his version of the significant events. The statement was admitted into evidence.

The defendant’s statement recites that he (Barfield) had gone to the back door of the apartment but was told by the victim “to go to the front door because the burglar bars were locked.” He did so and the victim let him into the apartment. They hugged each other and the defendant asked the victim to pull her shorts down, reassuring her that her mother was not coming, whereupon the victim pulled down her shorts and they had sexual intercourse. When they heard a sound that the victim said was her mother coming, the defendant jumped out a window, ran down the alley to the corner where he met his cousin. At the defendant’s request, his cousin went to investigate, returning with the report that the victim was telling her mother that the defendant raped her. The defendant stated that he then left the area. In his statement the defendant indicated that almost no time passed between the sexual intercourse and the victim’s statement to her mother that she had been raped.

The defendant argues that the State failed to prove him guilty beyond a reasonable doubt. In support of his argument the defendant challenges the reliability of his post-arrest statement to Assistant State’s Attorney Telander, which was admitted into evidence. Prior to trial the defendant moved to suppress the written statement signed by him following his arrest, arguing that at the time he gave the statement he believed Telander was his attorney, that he was not given his Miranda warning, that he signed the statement without reading it, and that portions of the statement were blank when he signed it. The trial court denied the motion to suppress, stating that the defendant’s allegations were “incredible and unbelievable.” The trial court made a specific finding that defendant’s statement was given knowingly and voluntarily, and without threat of force or coercion, and that the defendant had been given his Miranda warnings. The trial court properly admitted defendant’s statement into evidence.

The defendant argues on appeal that although he and the victim had sexual intercourse, the victim was not forced by him but in fact voluntarily participated. In his statement to Telander, the defendant stated that he did not know the victim was younger than 13 years of age. Defendant argues that the intercourse was a consensual act and therefore he did not rape the victim. He argues that he was not proven guilty of the crime for which he was convicted.

Aggravated criminal sexual assault of a victim under 13 years of age is a strict liability crime, which requires no more than an act of sexual penetration by a person over 17 years old with a victim under 13 years old. (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(b)(1).) The consent or voluntary participation of a minor victim is no defense to such charge. Nor is it a defense that the accused thought the victim was older than 13, as this defendant stated in his post-arrest statement.

The minor victim testified that the intercourse occurred and the defendant admitted the act of intercourse with this victim. The medical evidence and the testimony of the victim’s mother corroborate that the act occurred. The trial court determined that the evidence was clearly sufficient to find the defendant guilty of the crime of aggravated criminal sexual assault of the victim under 13 years of age, and defendant was convicted of that charge. We find the trial court’s determination of guilt was proper and consistent with the manifest weight of the evidence.

For all of these reasons, we affirm the judgment of the trial court.

Judgment affirmed.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSCAR DAVIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3617
    Opinion filed August 4, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a stipulated bench trial, defendant, Oscar Davis, was convicted of possession of a controlled substance and was sentenced to 18 months’ probation. Defendant appeals, contending that the trial court erred in denying his motion to suppress certain evidence. (By stipulation, the only evidence offered at trial was that adduced at the hearing on the motion to suppress.)

At the hearing on the motion to suppress, Officer Carl Toussas testified that on June 26, 1987, he and his partner were conducting a surveillance of a suspected narcotics house located at 1018 North Ridgeway in Chicago. The officers were located approximately one block away from the house and were watching the house through binoculars. At approximately 7 p.m. Toussas saw a vehicle pull up to the house. Defendant was in the vehicle. Toussas stated that a man exited the house, approached the vehicle, and began to speak to defendant. Defendant handed some money to the man, and the man reentered the house. Shortly thereafter, he returned to defendant’s car and then proceeded back toward the house. Toussas stated that he did not see the man pass anything to defendant, nor did he hear any part of their conversation.

Toussas stated that as the man proceeded to the house, he and his partner drove up to defendant’s car. Toussas went after the man who was returning to the house and his partner approached defendant. Toussas returned to his partner and defendant. He spoke with defendant and searched him. Toussas found three tin-foil packets of heroin in defendant’s top left shirt pocket.

Defendant testified on his own behalf at the hearing on the motion. He stated that on June 26, 1987, he parked his car approximately four houses down from' 1018 North Ridgeway. He went to the house and rang the door bell, but no one answered. He then proceeded back to his car. As he reached the bottom step of the stairway, the police approached him, searched him, and took him into the house. The officers also searched the house. Defendant stated that the officers did not show him an arrest or search warrant. He further stated that he had not committed any crime and that the police did not confiscate any drugs from him.

Larry Heard testified for defendant that on June 26, 1987, he was parked across the street from defendant’s car. He stated that he saw defendant coming down the steps of 1018 North Ridgeway, walking toward a police car. He saw the officers search defendant, handcuff him, and take him inside the house. Heard saw no transaction between defendant and any man, but stated that he “spotted” defendant only when the officers were searching him. Heard further stated that there were five or six officers and a dog team present at the time of defendant’s arrest. Heard admitted that he came to court with defendant and that they had discussed the case.

Defendant’s sole contention on appeal is that the evidence seized from him should have been suppressed because there was no probable cause for the arrest and the scope of the investigatory search exceeded the limits of a Terry stop.

In this court, the State has not offered any response or supporting authorities to defendant’s contentions. Consequently, the State has abandoned its assertions made in the trial court that the police officers had probable cause to arrest defendant or that the investigatory search did not exceed the limits of a Terry stop. See generally People v. Montgomery (1974), 18 Ill. App. 3d 828, 310 N.E.2d 760; 107 Ill. 2d Rules 341(e)(7), (f).

Rather, here the State challenges defendant’s standing to contest the validity of the seizure of evidence. The State did not make such an argument in the trial court. The basis of the challenge is that defendant denied ownership or possession of the contraband. We do not agree with the State’s position.

Initially we note that the analysis of this issue belongs under the heading of substantive fourth amendment rights rather than under the heading of standing. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) The fourth amendment protects persons against unreasonable searches. This protection extends to all areas in which an individual has a legitimate expectation of privacy. (Rawlings v. Kentucky (1980), 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556; People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.) Although ownership interest in the item seized is a factor which may be considered in determining whether a person’s fourth amendment rights have been violated, property rights are neither the beginning nor the end of the inquiry. (United States v. Salvucci (1980), 448 U. S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) Other relevant factors to be analyzed in determining whether the requisite expectation of privacy exists include whether the defendant was legitimately in the area seized, his possessory interest in the area or property seized, his ability to exclude others from the use of the property, and a subjective expectation of privacy in the property seized. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Dowery (1988), 174 Ill. App. 3d 239, 528 N.E.2d 214.

There can be no question here that defendant had a legitimate expectation of privacy in his person. (See generally Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (noting that the search of a person is a serious intrusion upon the sanctity of that person).) Although defendant disclaimed knowledge of and ownership interest in the contraband recovered by the police, he at no time disclaimed his expectation of privacy in his person and in the clothing he wore on his body. Defendant’s legitimate expectation of privacy in the area invaded is not defeated by his denial of possessory interest in the goods seized.

The State’s reliance on this court’s holding in People v. Dowery for its standing argument is misplaced. In that case, defendant denied any knowledge of a paper bag retrieved from a trash can in the restaurant where she was employed. Having no previous interest in either the trash can or the paper bag she claimed she had never seen, defendant obviously had no standing to challenge the search of those items. In the present case, defendant had a legitimate expectation of privacy in the clothing he wore on his body. We believe that defendant had standing to seek suppression of the evidence.

Since we find that the State has abandoned its claims that the police had probable cause to arrest defendant or that the scope of the investigatory search did not exceed the limits of a Terry stop, and since defendant had standing to contest the validity of the seizure of evidence, we must hold that the trial court erred in denying defendant’s motion to suppress the evidence.

Because of the nature of the occurrence, it apparently would serve no good purpose to remand the matter for further proceedings. Accordingly, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE WOODWARD

text:
    ORKIN PEST CONTROL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Alan K. Marsh, Appellee).
    First District (Industrial Commission Division)
    No. 1—88—3078WC
    Opinion filed August 4, 1989.

      August M. Mangoni, Ltd., of Chicago (August M. Mangoni and Louis G. Atsaves, of counsel), for appellant.
    Hariette Lakernick, of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Alan Marsh, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) alleging that he had suffered a work-related injury on August 16, 1985. The arbitrator found that claimant was not temporarily and totally disabled (TTD) after October 27, 1986, and that he failed to show that rehabilitation or vocational training was appropriate or necessary.

The Industrial Commission (Commission) reversed the arbitrator’s decision, finding that claimant was disabled from August 24, 1985, to July 21, 1986, and from October 28, 1986, to July 1, 1987, the date on which the arbitration hearing was held. Further, the Commission found that claimant was entitled to vocational rehabilitation. The circuit court of Cook County confirmed the Commission as to TTD benefits and remanded the case to the Commission with instructions to complete its vocational rehabilitation award. On remand, the Commission adopted the vocational rehabilitation award as fashioned by a rehabilitation specialist. The circuit court confirmed this decision, and this appeal followed.

On appeal, respondent raises four issues, namely: (1) the award of TTD benefits subsequent to October 27, 1986, was against the manifest weight of the evidence; (2) the record does not support an award of vocational rehabilitation; (3) the Commission considered evidence not contained in the record; and (4) the Commission’s decision was not timely.

In addressing defendant’s argument that the Commission’s award of TTD benefits subsequent to October 27, 1986, was against the manifest weight of the evidence, the following facts are pertinent. Claimant testified to the following at the arbitration hearing. In August 1985, claimant was employed as a pest control technician by respondent, and he operated a commercial route which included servicing restaurants, factories, bakeries, hotels, landfills, and industrial sites. On August 16, 1985, he serviced three landfills, putting out rodent bait on the premises. At one landfill, while putting out the bait, claimant stepped on some “green liquid” that was oozing out of the ground. Claimant was wearing boots at the time. He noticed that his feet were starting to burn. At the end of the workday, claimant reported the incident to his supervisor, Douglas Dee.

Over the weekend, claimant soaked his feet in Epsom salts and applied vaseline and hand cream to them. He noticed his feet were swelling and starting to turn purple. On August 24, 1985, after noticing the discoloration spreading up his legs, claimant sought medical attention at Humana Medfirst (Humana). On August 26, 1985, the discoloration had extended to his torso; claimant also experienced swelling in his joints. Humana referred him to Dr. J. Walthers, who prescribed medication and additional testing.

Dr. Walthers subsequently hospitalized claimant at South Suburban Hospital for five days, during which time numerous tests were performed. Dr. Walthers determined that claimant had hemmorrhagic dermatitis involving both lower extremities. Scattered eczematoid lesions were located over claimant’s trunk. Dr. Walthers’ diagnosis was toxic dermatitis, etiology unknown. Claimant’s condition began to improve with a treatment regimen of ointments and medication.

Claimant was then referred to a dermatologist, Dr. Katherine Wier, who first saw him on January 10, 1986. Dr. Wier diagnosed claimant’s condition as probable allergic contact dermatitis. In a letter dated April 22, 1986, written to respondent’s insurer. Dr. Wier stated that there had been an excellent resolution of allergic contact dermatitis but that claimant was experiencing a flare-up of psoriasis which originated in the severe dermatitis. Allergy testing conducted by Dr. Wier, in or about March 1986, indicated that claimant was allergic to a number of chemicals, some of which were present in industrial chemicals. At this time, Dr. Wier noted considerable skin discoloration in places where the dermatitis and psoriasis had previously occurred.

In mid-April 1986, claimant began twice weekly ultraviolet treatments to achieve complete clearing of the skin. Dr. Wier opined that, due to his severe allergies to certain chemicals, claimant should not return to chemical work as on his previous job. Dr. Wier further stated that claimant should be rehabilitated into a job that does not involve said chemicals.

In a July 18, 1986, letter to respondent’s insurer, Dr. Wier diagnosed claimant’s condition as follows: (1) residual psoriasis in scattered small plaques, remaining as a Koebner reaction form; (2) severe contact dermatitis from chemicals at work; and (3) hyperpigmentation of the skin on legs and arms. Dr. Wier stated that claimant was not to come in contact with pesticides.

In a March 23, 1987, letter to respondent’s insurer, Dr. Wier wrote the following:

“When last seen on March 20, 1987, [claimant] showed considerable improvement over his initial presentation. At present scattered plaques of psoriasis 2-3 cm. in diameter are present over his legs and arms. His elbows show hyperkeratosis. His legs show no edema, but macular hyperpigmented areas remain corresponding to previous areas of psoriasis. The feet show no edema, only a vidaceous color, as a residual from the dermatitis, also from sitting in dependent positions.”

Dr. Wier stated that the therapy for claimant’s psoriasis consisted of continued topical applications of medication and ultraviolet light treatments, which he received once a week.

Claimant reported at arbitration that his ankles, knees, elbows, and wrists hurt occasionally. The arbitrator observed that claimant’s feet were purplish in color.

Regarding the second issue, namely, whether claimant was eligible for vocational services, claimant testified at arbitration that he returned to work for respondent on July 21, 1986, as a commercial account executive. Claimant received a week of training for this assignment, which primarily consisted of selling yearly pest control accounts to commercial businesses by telephone to different industries and offering free inspections or by door-to-door solicitation.

Claimant testified that he did very poorly in this position and was called in several times by his supervisor to discuss his failure to meet sales goals. On October 27, 1986, respondent terminated him from this position due to low sales of pest control contracts. Claimant stated that he had received no rehabilitation services.

Further, claimant testified that he had been in the pest control business for 20 years. He had worked for respondent since 1976 and received a number of employment-related certificates of merit from respondent. Claimant stated that he had been looking for work since his termination by respondent. He applied to a couple of food stores to be a night stocker or bagger but was not hired. Claimant sought work at an auto repair shop, which had enough help at the time. After attending a two-day sales seminar put on by a company which sold vacuum cleaners, claimant was “let go.” He submitted an application to the State of Illinois Highway Division but was not contacted. Claimant applied for several delivery positions, but these positions were either filled by other applicants or required a class C driver’s license, which he did not have. He worked part time for a shipping company, which let him go after two days’ work.

On January 30, 1987, claimant was seen at his own request by Steven Blumenthal, a rehabilitation supervisor for Ellis and Associates, Inc. Mr. Blumenthal reviewed claimant’s medical records and work history and evaluated his skills and interests. Mr. Blumenthal concluded that claimant could complete a successful job placement program but would require the assistance of a job placement specialist, skilled in making contacts with employers. He noted that a sales position, such as that offered by respondent, was both outside claimant’s vocational strengths and inappropriate, considering his physical appearance. Mr. Blumenthal reported that claimant’s vocational prognosis was good, given his long and stable work history, his high school degree, and his strong motivation to work.

Mr. Blumenthal further stated:

“It is felt that, given medical clarification from Dr. Wier, Mr. Marsh, with the assistance of a Rehabilitation Job Placement Specialist, could *** identify employers who could provide route/delivery service work with products which would not be an irritant for him, and it is Mr. Marsh’s wish that initial employment options such as the above be viewed as he prefers to work on an outside basis. However, Mr. Marsh is not in a position where he can go out by himself and explain to employers why he would not be able to work on Friday’s currently [due to weekly ultraviolet treatments]. Also, he would have difficulty in convincing employers given his current physical appearance to hire him and very well might have difficulty in obtaining employment without the assistance of a Rehabilitation Placement Specialist to intervene on his behalf with employers.”

Respondent presented no evidence to show that claimant did not need vocational rehabilitation services or the assistance of a job placement specialist.

We first address respondent’s argument that the award of temporary total disability benefits subsequent to October 27, 1986, is not supported by evidence in the record. Respondent contends that Dr. Wier’s reports subsequent to October 27, 1986, make no recommendation as to whether or not claimant should be off any work due to his condition of ill-being. Respondent contends that there is no' indication in the record that claimant’s inability to work around or be exposed to certain chemicals somehow severely restricts his choices of reasonably stable jobs.

In response, claimant contends that the medical evidence clearly establishes that the August 16, 1985, accident has caused an ongoing medical condition which prohibits him from returning to his former career and, further, requires medical clarifications as to any other type of employment he may pursue.

It is axiomatic that a reviewing court will not overturn the Commission’s decision unless it is against the manifest weight of the evidence. (Certi-Serve, Inc. v. Industrial Comm’n (1984), 101 Ill. 2d 236.) Moreover, an employee is temporarily totally disabled for the purposes of the Act until he is restored or stabilized. (Boker v. Industrial Comm’n (1986), 141 Ill. App. 3d 51.) Here, the evidence supports the Commission’s decision to award claimant TTD benefits from October 27, 1986, to July 1, 1987. The medical evidence, adduced primarily through Dr. Wier’s letters and claimant’s testimony, supports the Commission’s finding. Dr. Wier’s diagnosis as of March 23, 1987, consisted of three elements: (1) severe allergic contact dermatitis with allergies to a number of common industrial agents; (2) severe generalized psoriasis; and (3) a tremor of unknown origin.

Claimant testified to a number of ongoing symptoms which arose from his work-related accident: discoloration of skin, pain in joints, and psoriasis. Moreover, the Commission could reasonably infer that claimant’s inability to find work following respondent’s termination of him was due to his continuing condition of ill-being, as suggested by the rehabilitation specialist. From this evidence, the Commission could reasonably conclude that between October 27, 1986, and July 1, 1987, claimant’s condition of ill-being had not yet stabilized nor was he restored to health, and therefore, he was eligible for TTD benefits during that period.

Next, respondent argues that vocational rehabilitation services are unnecessary. Respondent contends that claimant has already received vocational training in the form of the week-long program, which preceded his sales position with Orkin, and on-the-job training in said position. Respondent characterizes the Commission’s award of rehabilitative services as forcing it a second time to help claimant make a new start in life. Further, respondent rhetorically asks how it is to rehabilitate the claimant, who, it asserts, clearly does not want to be helped. In contrast, claimant contends that there is ample evidence to support the award of vocational rehabilitation with TTD.

In National Tea Co. v. Industrial Comm’n (1983), 97 Ill. 2d 424, our supreme court outlined the standards to be followed when considering the appropriateness of a vocational rehabilitation award.

“Generally, a claimant has been deemed entitled to rehabilitation where he sustained an injury which caused a reduction in earning power and there is evidence rehabilitation will increase his earning capacity. [Citation.] Related factors concern a claimant’s potential loss of job security due to a compensable injury [citation], and the likelihood that he will be able to obtain employment upon completion of his training. [Citation.] In contrast, rehabilitation awards have been deemed inappropriate where the claimant unsuccessfully underwent similar treatment in the past [citation]; where he received training under a prior rehabilitation program which would enable him to resume employment [citation]; where he is not ‘trainable’ due to age, education, training and occupation [citation]; and where claimant has sufficient skills to obtain employment without further training or education [citation].
Other factors which we consider appropriate are ‘the relative costs and benefits to be derived from the program, the employee’s work-life expectancy, and his ability and motivation to undertake the program, [and] his prospects for recovering work capacity through medical rehabilitation or other means.’ [Citation.] Whether a rehabilitation program should be designed to restore claimant to his pre-injury earning capacity depends upon the particular circumstances. However, as this court suggested in Hunter, such a standard should not be inflexibly applied.” 97 Ill. 2d at 432-33.

The evidence indicates that claimant has sustained an injury which has substantially diminished his earning power. Mr. Blumenthal’s report indicates that claimant, assisted by vocational rehabilitation services, could at least regain some of his lost earning capacity. His age (40 as of the arbitration hearing) and education pose no significant barriers to any vocational assistance he would receive. Moreover, it does not appear that claimant has sufficient skills to obtain employment without vocational assistance.

We find that the Commission’s decision to award vocational rehabilitation services was not against the manifest weight of the evidence.

Next, respondent argues that the Commission used information not contained in the record to determine whether claimant was entitled to additional TTD benefits and vocational rehabilitation. Specifically, it takes issue with the Commission’s finding, in its first decision, that claimant’s face and entire body were covered with a rash, the result of which was an appearance not conducive to being a salesperson. Respondent asserts that a description of this finding by the Commission does not appear in the record.

In its judgment order, the court below stated the following: “[WJhen this Court questioned the counsel about the proceedings before the Commission [on] review, both counsel admitted they were present and both agreed that when Petitioner presented himself for examination by members of the Commission *** the Respondent made no objection. Objections not raised are waivedf;] therefore, we find this issue has been waived.”

We agree with the circuit court that respondent, having failed to object before the Commission, has waived this argument. Mueller v. Soffer (1987), 160 Ill. App. 3d 699.

Finally, respondent argues that the Commission’s decision was not timely and was issued in violation of section 19(b — 1) of the Act, which reads in pertinent part as follows:

“The Commission shall adopt rules, regulations and procedures whereby the final decision of the Commission is filed not later than 90 days from the date the petition for review is filed but in no event later than 180 days from the date the petition for an emergency hearing is filed with the Industrial Commission.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1).

Section 7020.80(b)(4)(D) of the rules governing practice before the Industrial Commission reads in relevant part as follows:

“The Commission shall file its decision no more than 90 days after the filing of the Petition for Review, and not later than 180 days from the filing of the Petition under Section 19(b — 1), whichever is sooner.” 50 Ill. Adm. Code 7020.80(b)(4)(D) (1986).

According to the record, the petition for immediate hearing pursuant to section 19(b — 1) was filed by claimant with the Commission on May 29, 1987.

The decision and opinion on review by the Commission was dated and entered December 24, 1987, or 209 days after the filing of the petition, more specifically, 29 days after the statutory deadline noted above.

Respondent argues that this is a blatant disregard of the commands of the statute and the commands of the Commission’s own rule and, as such, serves as one of the reasons to vacate the Commission’s decision.

Respondent ignores the fact that the original arbitrator who heard this case died suddenly, setting this case back at least a month, which accounts for the Commission’s delay in filing this decision and opinion on review. Under these unforeseen circumstances, the Commission understandably did not comply with the statutory guidelines and its own rules. Moreover, respondent has posited no evidence that it was injured in any way by the delay.

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

Affirmed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.