author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ROY, Defendant-Appellant.
    Fourth District
    No. 4-89-0744
    Opinion filed June 27, 1990.
    Rehearing denied September 18, 1990.

      James L. Ayers, of Monticello, for appellant.
    Roger Simpson, State’s Attorney, of Monticello (Leonard R. Rumery, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Michael Roy was charged by information with four counts of aggravated criminal sexual assault and two counts of criminal sexual assault. Each count alleged that in November 1988, defendant placed his finger in the anus of B.R., his four-year-old son. The State dismissed two counts of aggravated criminal sexual assault, and a bench trial was held on the remaining counts on June 16, 1989, and June 21, 1989. The court took the verdict and objections of defendant under advisement, and on July 7, 1989, announced its verdict of guilty on all remaining counts. Defendant was sentenced on one count of criminal sexual assault and one count of aggravated criminal sexual abuse to 36 months’ probation. The conditions of the probation included psychiatric testing and treatment, counseling through an offender’s program, payment for any counseling services engaged in by B.R. for the next five years, and six months’ imprisonment in the Piatt County jail subject to work release. Defendant’s motion to stay confinement pending appeal was granted.

Defendant appeals alleging (1) the trial court erred in admitting the testimony of Dr. Banker and Dr. Beutow relaying B.R.’s out-of-court statements; (2) the trial court erred in admitting Dr. Beutow’s testimony regarding post-traumatic stress syndrome; (3) the trial court erred in admitting the testimony of Carolyn Roy regarding B.R.’s out-of-court statements; (4) the trial court erred in admitting testimony of Pamela Gremmels regarding out-of-court statements and actions of B.R. and in admitting the publication Red Flag, Green Flag People (J. Williams, Red Flag, Green Flag People (rev. ed. 1983)); and (5) he was not proved guilty beyond a reasonable doubt. We affirm.

Carolyn Roy testified she lives in Monticello, Illinois, with her fiance, Brian Robbins, his minor child, and her two children, four-year-old B.R. and three-year-old H.R. Carolyn and defendant were married in September 1982, and defendant is the father of both B.R. and H.R. Pursuant to their divorce in December 1987, Carolyn has custody of the children. Carolyn testified defendant resides with his mother, Christina Roy, at her residence in Monticello and has visitation with the children every other weekend and on holidays and special occasions.

In August 1988, Carolyn observed changes in B.R.’s behavior. B.R. no longer enjoyed his bath time, was having trouble sleeping, and was scared of the dark. B.R. did not complain of any physical pains, though he was extremely aggressive and angry. Carolyn testified it was in September or October 1988, B.R. switched from a private sitter to day care.

On Thanksgiving Day of 1988, Carolyn took B.R. and H.R. over to defendant’s home around 6 p.m. Carolyn, B.R., and H.R. had earlier attended a Thanksgiving celebration with Carolyn’s family. Carolyn made arrangements with defendant to pick the children up on the next day, Friday the 25th, after she got off work. When Carolyn arrived the next day at about 6 p.m., B.R. immediately said “Mommy, my butt hurts.” When making this statement, B.R. did not make eye contact with Carolyn and was looking downward. Defendant, his mother, and H.R. were in the room at this time though defendant immediately left. B.R. began to cry, and Carolyn asked Christina what was wrong. Christina replied B.R. had awakened in the middle of the night screaming in pain. Christina said B.R. had had a little bit of diarrhea and she had put medicine on his bottom. Carolyn took B.R. and H.R. home.

When they arrived home, Carolyn, B.R., and H.R. watched TV and read a book with Brian and his son. Carolyn testified B.R. was upset and she could tell something was really bothering him. After the other two children were in bed and Brian was in another room, Carolyn asked B.R. what was wrong. B.R. was very uneasy about talking with her and continually complained his butt was hurting and he could not sit up anymore. B.R. asked Carolyn to put medicine on his butt like his dad and grandma do. Carolyn responded she could not put medicine on his butt until she knew what had happened to make it hurt because there are different kinds of medicine. At this point, B.R. stood up and stated “My daddy takes two fingers like this, and pokes them up my butt.” Carolyn testified she hugged B.R. and told him she was sorry. She put B.R. to bed. This conversation between Carolyn and B.R. occurred sometime between 8 and 9 p.m.

The next morning Carolyn called Carle Clinic and spoke to Dr. Lanker. Carolyn told Dr. Lanker she had reason to believe her son had been abused. Carolyn took B.R. to see Dr. Lanker and was present when B.R. was examined. Carolyn testified she had not told Dr. Lanker anything regarding B.R. being constipated as Christina had earlier informed her B.R. had had diarrhea.

Carolyn testified she had a conversation with defendant and his mother in August 1988, wherein she requested the children sleep by themselves during visitation. Defendant told her he had no problem with that and did not ever deny the children were sleeping with him or his mother.

William Lanker testified he is a physician with Carle Clinic. On Saturday, November 26, 1988, Dr. Lanker examined B.R. though he is not B.R.’s regular physician. The purpose of the examination concerned B.R.’s complaints of rectal pain. Carolyn Roy was present in the examining room. She told Dr. Lanker she had noticed B.R. would complain of this pain when he returned from a weekend with his father and of B.R.’s statement his father put two fingers up his butt. Carolyn also told Dr. Lanker B.R. had made inappropriate acts toward her sister’s boyfriend at their family’s Thanksgiving gathering. Her sister’s boyfriend had been lying on a couch taking a nap when B.R. crawled between the boyfriend’s legs and blew on his crotch. When told to stop, B.R. responded his father does it. Prior to the actual physical exam, Dr. Lanker tried to elicit from B.R. what caused his rectal pain and B.R. was reluctant to tell him.

Dr. Lanker observed it was painful for B.R. to sit. Dr. Lanker noticed this when B.R. entered the room and later when B.R. was asked to climb up on the examination table. When Dr. Lanker parted the cheeks of B.R.’s bottom to look at his anus, B.R. complained of tenderness and was reluctant for Dr. Lanker to continue examining him. B.R. withdrew from Dr. Banker’s touch. Dr. Lanker did not observe any marks, trauma, redness, or hemorrhoids in the anal area. Because of B.R.’s reluctance and obvious pain, Dr. Lanker did not perform a rectal exam.

After the examination, Dr. Lanker asked B.R. how long he had been hurting. B.R. stated he had been hurting for two days. When Dr. Lanker asked B.R. if it had ever happened before, B.R. stated yes. When Dr. Lanker asked how many times B.R. had had this problem, B.R. responded for about six weekends. Dr. Lanker asked B.R. “Is what your mother told me true, does your father put his fingers in your bottom, did he stick them in your rectum?” and B.R. replied, “yes.” In doing so, B.R. avoided eye contact with Dr. Lanker, looking at the floor and away. When Dr. Lanker later tried to have B.R. repeat the statement, B.R. refused to answer him.

When questioned whether a plausible explanation for B.R.’s pain was constipation, Dr. Danker stated this was a plausible explanation; however, there were not any chronic signs of constipation such as hemorrhoids or fissures. Furthermore, the only complaint children usually have in such situations is of abdominal tenderness and not rectal pain. At the time of the examination, Dr. Danker was aware B.R. had been prescribed Ceclor and Tylenol with codeine for a prior cold and sore throat. Dr. Danker testified Tylenol with codeine may cause stomach upset, vomiting, or constipation.

Dr. Danker stated he has not seen this sort of tenderness on a child’s bottom without some sort of direct mechanical irritation. In response to the question whether it was possible the tenderness was a result of normal activities, Dr. Danker responded, “I do not think so.” Dr. Danker was aware B.R.’s records indicated he had previously been seen at the clinic in August 1987 for rectal pain. Dr. Danker referred the case to Dr. Beutow and notified the Department of Children and Family Services (DCFS) of possible abuse.

Mary Kathrine Beutow testified she is a pediatrician with Carle Clinic. She examined B.R. on December 5, 1988. Prior to the examination she interviewed Carolyn Roy and B.R. Initially, she observed B.R. to be a friendly, outgoing child. However, when Dr. Beutow asked B.R. to describe visiting his father, B.R. became very upset and did not want to talk anymore. B.R. eventually told Dr. Beutow his father had hurt him. When asked where he had been hint, B.R. said he had hurt him in his butt with his fingers. At this point, B.R. asked to leave the room and was very distressed. Dr. Beutow persuaded B.R. to remain in the room, and he told her this occurred upstairs in the bedroom and it had happened lots of times. His daddy hurt him in the butt but not in the “weiner.” B.R. stated he liked his daddy and his daddy had not threatened him not to tell.

During the physical exam, B.R. was very uncomfortable with the idea of Dr. Beutow looking at his anal area. B.R.’s anus appeared normal and B.R. was not experiencing any of the pain he had earlier complained of. Dr. Beutow diagnosed B.R. as a sexually abused child and recommended treatment.

Dr. Beutow further testified B.R. was suffering from post-traumatic stress syndrome. Dr. Beutow explained post-traumatic stress syndrome may occur when a child has suffered a traumatic experience. The syndrome can manifest itself in several ways. Some children become aggressive and act out. They may be very irritable, crying, having temper tantrums and fears. These children may even sexually act out. Other children may internalize their feelings trying to deny the acts. These children often become withdrawn, very unhappy, and sad. Dr. Beutow testified a child with post-traumatic stress syndrome may exhibit both extremes of behavior. Dr. Beutow testified B.R. exhibited many of the symptoms of post-traumatic stress syndrome.

Tommy R. Brown testified he is a patrolman with the Monticello police department. He was contacted by DCFS to assist in an investigation of alleged child molestation. On December 1, 1988, Officer Brown contacted defendant and asked to speak with him at the Monticello police department. When defendant arrived, Officer Brown advised defendant of his Miranda rights and stated he had contacted defendant in reference to possible abuse of his children. Defendant immediately responded he had not sexually abused his children. Officer Brown advised defendant he had not mentioned defendant was accused of sexually abusing his children. When later asked if he might have done something which could be conceived as sexual abuse, defendant stated his son was having some problems with a rash or something and he had placed medicine on his son’s anal area. His mother had also done the same thing. Defendant stated he did help bathe the children, but the extent of his participation was washing their hair. Defendant stated he had never slept with his children or lain in bed with them.

Pam Gremmels testified she is a patient therapist and clinical director at the Piatt County Mental Health Center. Since December 23, 1988, she has been B.R.’s counselor and therapist. She sees B.R. on a weekly basis. She described B.R. as a very sensitive, touchy boy who is resistant to discussions about bathing or beds. She described B.R.’s demeanor as very withdrawn and stated B.R. casts his eyes downward when discussing his father. In her opinion, it would be extremely traumatizing for B.R. to testify at this proceeding.

In the course of her counseling with B.R., Gremmels has utilized a publication known as Red Flag, Green Flag People. Gremmels used this publication with B.R. in one session on February 28, 1989. The purpose of the book is to help a child distinguish between a good touch and a bad touch. A “red flag” touch is considered a bad touch and a “green flag” touch is considered a good touch. Gremmels read through the publication with B.R. Gremmels testified she did not supplement the original text. In her opinion, B.R. grasped the concept of a bad touch being a red flag and a good touch being a green flag. Gremmels pointed to pages in the book where B.R. had successfully distinguished between a good and bad touch by coloring the accompanying flag red or green.

Page 14 of the book shows a nude caricature with its body parts labeled. Gremmels read through the body parts with B.R. At the bottom of the page, the text states, “When you are touched and it feels bad, do you get a scared feeling?” To this B.R. responded, “Sometimes, a little bit.” He then looked up at Gremmels and said, “I can’t see my dad anymore, can I?” Gremmels continued reading the text, which stated, “Is the scared feeling in your stomach, your head, or all over?” B.R. took his index finger and pointed to his bottom. Gremmels read the next line of text, which read, “Have you ever had a red flag touch?” To this, B.R. nodded “yes.” The last line of text on page 14 read, “Color the area where you were touched or touched someone and did not like the way it felt.” B.R. took a red crayon and drew a vertical line on the back view of the caricature from the anal area up. Gremmels then asked B.R. if he had any other red flag touches and B.R. responded, “yes.” Gremmels gave him a xeroxed copy of page 14 of the text. B.R. colored the buttocks of the caricature red and its right hand blue. B.R. indicated the nature of this bad touch had been a spanking by his grandmother.

Effie Brown, the mother of Officer Brown, testified for the defense. She is a neighbor of defendant and his mother and was at their home on Thanksgiving evening when Carolyn brought B.R. and H.R. over. Effie knew the children and they came over to where she was sitting on the couch. B.R. sat on Effie’s right side and leaned against her shoulder. Effie asked B.R. if he was tired, and B.R. lay down on his stomach across her lap. Effie patted him on his bottom, and he said, “Don’t do that Effie, my butt hurts.” Effie, along with two other witnesses, testified to defendant’s good reputation.

Christina Roy, defendant’s mother, testified defendant has been living with her since his divorce. B.R. and H.R. also stay at her home during their visitation time with defendant. Her home is a two-story house with a living room, two bedrooms, kitchen, and bathroom downstairs. Christina sleeps in the downstairs bedroom, while defendant uses the other small downstairs bedroom for storage. The upstairs contains two bedrooms, one of which defendant uses for his own.

When the children stay over, H.R. usually sleeps on a couch downstairs, while B.R. sleeps in an upstairs bedroom. Defendant would sleep on one of the other couches in the living room or in the other upstairs bedroom. During their visits, the children have never slept with defendant; however, when one of the children was sick, they might sleep with Christina. In May 1988, Carolyn Roy asked Christina not to have B.R. sleep with anyone, as it was too hard to get him to go to bed by himself at home. Christina agreed with Carolyn’s request.

About 6:30 p.m. on Thanksgiving Day, 1988, Carolyn Roy brought B.R. and H.R. over to Christina’s home. Christina fixed supper for the children and, with defendant, played games and watched TV. B.R. had not been feeling well and said his back and butt hurt. He told Christina it hurt to go to the bathroom, and she put Desitin on his bottom as a sort of panacea. Christina estimated this occurred about 8 or 9 p.m. and stated no one else applied Desitin to B.R. that evening.

Later that evening, B.R. fell asleep on a couch in the living room, but awoke about 11 p.m. crying. Defendant had to leave for work, and Christina sat up with B.R. until after 1 a.m. when defendant returned. Christina went into her bedroom and defendant lay on the floor in the living room. B.R. was still sitting on one of the couches in the living room and H.R. was asleep on the other.

The next day, B.R. cried off and on stating he needed to go to the bathroom. Christina again applied Desitin to his bottom. Defendant had left for work at 7 a.m. and returned home at about 12 p.m. When defendant arrived, Christina was in the kitchen preparing their dinner. B.R. was in the bathroom. B.R. stated he was still hurting, and Christina asked defendant to put Desitin on B.R.’s bottom. Christina did not actually observe the application; however, she was only six to eight steps away from defendant and B.R.

B.R. continued to be fussy during the afternoon, stating his belly and butt hurt. Carolyn came to pick up the children at about 6 p.m. Christina did not say anything to Carolyn about B.R. having diarrhea, though during the prior visitation he had experienced diarrhea and Desitin was also applied. Christina stated B.R. did cry when his mother came, but she thought it was because B.R. did not want to go home.

Christina testified in May 1988, she did spank B.R. She had just given B.R. and H.R. a bath and was getting them out of the tub. B.R. wrestled H.R. to the floor, held her down and made sexual motions. Christina spanked B.R. and told him not to ever do it again. Christina did not tell anyone of the incident.

Defendant testified he is 26 years old and lives with his mother, Christina Roy. He moved in with her after his divorce from Carolyn. Defendant is employed by Monticello Bus Service, where he drives a school bus and helps maintain and clean charter coaches.

When the children visit, Christina assists defendant in caring for them. For example, when B.R. bathes, he requests Christina be with him. Defendant testified he would wash B.R.’s hair as it was hard for Christina to bend over. Defendant stated he does not wash other parts of B.R.’s body. In late August or early September 1988, defendant observed a change in B.R.’s attitude toward bathing. B.R. did not want to take a bath and, when told he had to, would become upset and cry.

Defendant had visitation with the children the weekend of November 19 and 20, 1988. Both children had been sick earlier in the week. H.R. seemed to have recovered, though B.R. had a bad case of diarrhea and complained of a stomach ache. Defendant called B.R.’s doctor, Dr. Turngren, on Sunday, the 20th. Dr. Turngren examined B.R. and gave him two types of medication. The medications were Ceclor, which was to help B.R.’s stomach ache and clear up his diarrhea, and Tylenol with codeine for the stomach pain and fever. Dr. Turngren advised defendant there was a possibility Tylenol with codeine could cause constipation.

Defendant’s next visitation with the children was Thursday, November 24, 1988. At about 6:30 p.m., Carolyn Roy brought the children to his home. Both children had not had their naps that day and had participated in a previous Thanksgiving celebration. B.R. complained his stomach and butt hurt and he had not been to the bathroom. Defendant testified B.R. was still taking the Tylenol with codeine. Christina would take B.R. to the bathroom, where he would cry and say he could not go. B.R. would request to have Desitin put on his bottom. Defendant testified he only applied Desitin to B.R. on one occasion and that was around 8 p.m. on November 24.

At around 9 p.m. on the 24th, defendant was lying on the floor trying to catch a nap before going to work. H.R. was already asleep on one of the couches in the living room. Christina and B.R. were sitting on the other couch. Christina was trying to comfort and soothe B.R. At about 11:15 p.m., B.R. started to cry and scream that his belly was hurting him. Defendant left for work at 11:30 p.m. and was there for approximately 1 hour and 15 minutes. When he arrived home, B.R. and H.R. were asleep on different couches. Defendant lay down on the floor in the living room, and his mother went into her bedroom. The next morning B.R. was still whining that his stomach hurt. Defendant left for work around a quarter till seven and worked until approximately noon. When Carolyn arrived to take the children home, B.R. ran toward her saying his stomach and butt hurt.

Defendant denied inserting his finger or fingers into B.R.’s anus. Defendant also denied inserting any sort of device into B.R.’s anus. Defendant testified the first time he became aware an allegation of sexual abuse had been lodged against him was when he spoke with Officer Brown on December 1, 1988. Officer Brown had called defendant prior to the meeting requesting defendant to come and talk with him.

The State and defendant agreed to stipulate to the testimony of Dr. Robert Turngren. If called, Dr. Turngren would testify he is a physician at Carle Clinic and is B.R.’s primary physician. Prior to November 1988, Dr. Turngren had treated B.R. on several occasions. Sexual abuse was not mentioned on any of these occasions. Dr. Turngren saw B.R. on November 20, 1988, and prescribed Ceclor and Tylenol with codeine. Tylenol with codeine can result in constipation, and Ceclor can on occasion cause diarrhea.

On rebuttal, the State called William Schaller and Carolyn Roy. William Schaller testified he is 31 years old and dated Carolyn Roy’s sister. He attended the family’s 1988 Thanksgiving dinner and observed B.R. there. B.R. played with the other children who were present and did not complain of any health problems. Carolyn Roy also testified B.R. spent Thanksgiving day playing with the other children and did not complain of any health problems. However, B.R. was punching male adults in the groin area.

Defendant alleges the trial court erred in admitting the testimony of Dr. Danker and Dr. Beutow relaying B.R.’s out-of-court statements. Defendant contends such statements constituted inadmissible hearsay. The State concedes the statements constituted hearsay as they were out-of-court statements offered to prove the truth of the matters asserted. However, admission of the statements was granted pursuant to the hearsay exception for statements by victims of sex offenses to medical personnel. Ill. Rev. Stat. 1987, ch. 38, par. 115 — 13.

Effective January 1, 1988, section 115 — 13 of the Code of Criminal Procedure of 1963 (Code) provides:

“In a prosecution for violation of Section 12 — 13, 12 — 14, 12— 15 or 12 — 16 of the ‘Criminal Code of 1961’, statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.” Ill. Rev. Stat. 1987, ch. 38, par. 115-13.

B.R.’s out-of-court statements were reasonably pertinent to diagnosis or treatment. B.R. agreed with Dr. Banker’s statement his father put his fingers up his butt and told Dr. Banker he had been hurting for two days and it had happened before on weekends. B.R. told Dr. Beutow his father had hurt him in his butt with his fingers. This had occurred upstairs in the bedroom and it had happened lots of times. B.R. further told Dr. Beutow his daddy hurt him in the butt but not in the “weiner.” B.R. was examined by Dr. Danker one day after reporting the incident to his mother. B.R. was examined by Dr. Beutow approximately one week after reporting the incident to his mother. Both doctors made a diagnosis regarding B.R.’s condition and prescribed treatment. In examining and treating a four-year-old child suspected of sexual abuse, details of the sexual acts including how, when, and where the act occurred and who was involved are certainly pertinent. The statute clearly provides for such an admission.

Defendant’s argument the exception only applies to treating physicians and Dr. Beutow was not a treating physician is erroneous. Section 115 — 13 does not provide for a distinction between examining physicians and treating physicians. Instead, it provides statements of sexual assault victims to medical personnel for purposes of “diagnosis or treatment” shall be admitted. The reference to diagnosis or treatment evinces a legislative intent to apply this provision broadly and not to limit the testimony only to treating physicians. People v. Rushing (1989), 192 Ill. App. 3d 444, 548 N.E.2d 788.

Furthermore, section 115 — 13 does not deny defendant his confrontation rights. In discussing the admissibility of hearsay statements, courts have frequently relied upon Ohio v. Roberts (1980), 448 U.S. 56, 65 D. Ed. 2d 597, 100 S. Ct. 2531, which allows the admission of hearsay evidence from an unavailable declarant if the evidence bears adequate indicia of reliability. At issue in Roberts was the admissibility of prior trial testimony as the State sought to admit preliminary hearing testimony of a witness not produced at the defendant’s subsequent State criminal trial. However, the United States Supreme Court in United, States v. Inadi (1986), 475 U.S. 387, 89 D. Ed. 2d 390, 106 S. Ct. 1121, limited the holding of Roberts, stating Roberts cannot be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing the declarant is unavailable. Instead, Roberts is to be read consistent with the question it answered, the authority it cited, and its own facts. (Inadi, 475 U.S. at 394, 89 D. Ed. 2d at 398, 106 S. Ct. at 1125.) Accordingly, the holding of Roberts has continuing validity concerning the admissibility of prior testimony, but is inapplicable to the case at bar.

The constitutional tests set forth in Inadi and its successor Bourjaily v. United States (1987), 483 U.S. 171, 97 D. Ed. 2d 144, 107 S. Ct. 2775, are applicable to section 115 — 13. Under these standards, the unavailability of the declarant need not be shown as long as the evidence (1) has sufficient indicia of reliability (Inadi, 475 U.S. at 394, 89 L. Ed. 2d at 398, 106 S. Ct. at 1125), or (2) falls within a firmly established hearsay exception. (Bourjaily, 483 U.S. at 183, 97 L. Ed. 2d at 157, 107 S. Ct. at 2782-83.) Though we recognize Inadi and Bourjaily discuss the admissibility of coconspiracy statements, their principles equally apply to statements made pursuant to section 115-13.

Section 115 — 13 is a codification of the firmly rooted common law hearsay exception allowing statements describing medical history, symptoms, pain, or sensations made for purposes of medical diagnosis or treatment. The assumption underlying both section 115 — 13 and the common law exception is that the desire for proper diagnosis or treatment outweighs any motive to falsify. Mere codification of the common law rule does not change these assumptions, nor are they negated when minor children are involved. Section 115 — 13 meets the constitutional requirements set forth in Inadi and Bourjaily and clearly does not deny defendant his confrontation rights.

Defendant challenges the appropriateness of Dr. Danker relaying the statements of Carolyn Roy. Carolyn told Dr. Danker B.R. would complain of rectal pain when he returned from a weekend with his father and of B.R.’s statement his father put two fingers up his butt. Arguably such statements are not admissible under section 115 — 13 as they were provided by someone other than the victim. However, hearsay may be relied upon by physicians in making diagnoses. The Handbook of Illinois Evidence provides that under the common law hearsay exception of statements for the purpose of medical diagnosis or treatment, the statement may be made by either a patient or someone with an interest in his well being. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.8, at 560 (4th ed. 1984).

Here, the trial court admitted this testimony for the limited purpose of its consideration in Dr. Banker’s diagnosis. It does not appear the trial court placed reliance upon the statements themselves. Under these circumstances, we find the admission of these hearsay statements to constitute harmless error.

Defendant further contends the trial court erred in admitting testimony by Dr. Beutow regarding, post-traumatic stress syndrome. Defendant contends such admission was lacking in relevance, scientific acceptability, and went to the ultimate issue of fact. Taking the trial court’s ruling in context with the preceding arguments, it is obvious the court admitted Dr. Beutow’s testimony pursuant to section 115 — 7.2 of the Code (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 7.2).

Section 115 — 7.2 of the Code (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 7.2), effective January 1, 1989, provides:

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

Dr. Beutow testified she is a physician with Carle Clinic and recited her lengthy qualifications. According to Dr. Beutow, post-traumatic stress syndrome is recognized and accepted by the medical profession. Dr. Beutow works with a number of such cases due to her involvement with the child-protection team at Carle Clinic. It was her opinion B.R. suffered from post-traumatic stress syndrome.

Dr. Beutow was qualified as an expert, and defendant has not disputed her qualifications. Dr. Beutow testified to the relevance and scientific acceptability of the syndrome and defendant has cited no contrary authority. In People v. Harris (1989), 132 Ill. 2d 366, 547 N.E.2d 1241, the Illinois Supreme Court recognized an expert witness may testify to an opinion on an ultimate issue in a case. Section 115— 7.2 merely provides for the admission of such testimony. It does not preclude the trier of fact from weighing the witness’ testimony and credibility, nor does it obligate the trier of fact to ultimately accept the witness’ opinion. Contrary to defendant’s assertions, the passage of this statute renders People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131, inapplicable to this case.

Defendant contends the testimony of Carolyn Roy regarding B.R.’s out-of-court statements constitutes inadmissible hearsay. The trial court admitted these statements as spontaneous declarations. Carolyn Roy had repeated B.R.’s statements his butt hurt and his daddy had put two fingers up his butt. B.R. made the statement, “my butt hurts,” immediately upon Carolyn’s arrival at defendant’s home on November 25, 1988. B.R.’s statement, “daddy put two fingers up my butt,” was made approximately two to three hours later at their own home.

To bring a statement within the spontaneous declaration exception to the hearsay rule, three factors are necessary: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) In determining whether a statement is admissible as a spontaneous declaration, the trial court has considerable discretion. Its decision will not be reversed absent an abuse of that discretion. People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285.

The first and third required factors of a spontaneous declaration are clearly met in this case. B.R.’s statements, “my butt hurts,” and “my daddy put his two fingers up my butt,” clearly relate to the circumstances of the occurrence. Furthermore, such an occurrence would be sufficiently startling as to produce a spontaneous declaration. Direct proof of the occurrence is not strictly necessary, as circumstantial evidence corroborating the existence of the shocking event is sufficient. (People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132.) Here, the observations and diagnoses of Dr. Danker and Dr. Beutow provide sufficient corroborating evidence.

Regarding the remaining factor, absence of time to fabricate, time alone does not control the admissibility of the utterance but rather the critical factor is the lack of opportunity to fabricate. (People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395.) The trial court must look to the surrounding circumstances to determine whether there was an opportunity for reflection and invention. People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.

B.R. did not have sufficient time or opportunity to fabricate. The information alleges the sexual act occurred in November 1988; however, the testimony at trial focused on the visitation with defendant from November 24 through November 25. B.R. made the statement, “my butt hurts,” upon immediately seeing his mother on the 25th. The evidence shows B.R. remained in a withdrawn mood from leaving defendant’s home through the later conversation with his mother two or three hours later. B.R. made the statement, “my daddy put two fingers up my butt,” on the first occasion he had to be alone with his mother.

In determining B.R.’s statements are unfabricated, we recognize the rationale set forth in People v. Bitler (1986), 146 Ill. App. 3d 477, 497 N.E.2d 137, that it is unlikely a child of tender years would have any reason to fabricate stories of sexual abuse. Their statements may remain void of fabrication for a longer period of time because the child is apt to repress the incident; it is often unlikely the child will discuss such a stressful incident with anyone other than the mother; and the characteristics of young children work to produce declarations free of conscious fabrication for a longer period after the incident than adults.

The fact B.R. made the statement, “my daddy puts two fingers up my butt,” in response to Carolyn’s questioning on what was wrong with B.R. or why did his butt hurt does not disqualify these statements as spontaneous declarations. Though one of the circumstances to be taken into account is whether the statement was made voluntarily or in response to a question, it is well established asking the declarant what happened is insufficient to destroy the spontaneity of a response. People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25; Sanchez, 105 Ill. App. 3d at 491, 434 N.E.2d at 398.

Defendant further alleges the trial court erred in admitting the testimony of Pamela Gremmels regarding statements and actions of B.R. and in admitting the Red Flag, Green Flag People publication. Gremmels’ testimony was admitted pursuant to section 115 — 10 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10) and consisted of B.R.’s responses to the Red Flag, Green Flag People publication. Prior to trial, the State filed notice of its intent to present Gremmels’ testimony.

Section 115 — 10, effective January 1, 1988, states:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made , by._such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” (Ill. Rev. Stat. 1987, ch. 38, par. 115-10.)

We interpreted this statute in Rushing (192 Ill. App. 3d at 451, 548 N.E.2d at 792) as allowing into evidence the detailed testimony of the person to whom the child complained. However, unlike Rushing, no hearing was held to establish the reliability of the statements and the child did not testify.

As provided above, the statute requires the court to conduct a hearing “outside the presence of the jury” to determine whether the time, content, and circumstances of the statement provide sufficient safeguards of reliability. (Ill. Rev. Stat. 1987, ch. 38, par. 115— 10(b)(1).) However, beyond generally objecting to Gremmels’ testimony, defendant has not objected to the absence of this hearing or determination. We review this issue only to determine whether it constitutes plain error.

The requirement the hearing be held “outside the presence of the jury” does not render the requirement inapplicable to bench trials. However, it is a well-established rule that the trial court, as a trier of fact, is presumed to have only considered admissible evidence in reaching its determination. (People v. Finn (1978), 68 Ill. App. 3d 126, 385 N.E.2d 103.) Accordingly, we find that in admitting Gremmels’ statements into evidence the trial court appropriately considered the time, content, and circumstances of the statements were sufficient to establish their reliability even though it did not articulate such a finding. While the trial court should have made such a specific finding, its absence does not constitute plain error under these circumstances.

The statute further provides for the admission of out-of-court statements of the child victim even when the child does not testify. As previously set forth, this provision allows the out-of-court statements if the child is “unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1987, ch. 38, par. 115-10(b)(2)(B).

B.R. did not testify at trial, nor was he subject to cross-examination. No findings or stipulations were made regarding his unavailability. Both the State and counsel for defendant referred to his assumed unavailability. In her testimony, Gremmels stated it would be extremely traumatizing for B.R. to testify. Again, beyond generally objecting to Gremmels’ testimony, defendant has not objected to B.R.’s unavailability or raised it as an issue on appeal. Accordingly, we will not address the issue further.

Concerning the element of corroboration, B.R.’s statements were sufficiently corroborated. Dr. Beutow diagnosed B.R. as being sexually abused, and Dr. Danker testified B.R.’s anal tenderness could only be the result of a mechanical irritation.

Regarding Gremmels’ testimony, defendant has not alleged his confrontation rights were denied. However, defendant has made such a general allegation in other portions of his brief. We do not find this statute violates defendant’s confrontation rights. Again, we adopt the rationale of Inadi and Bourjaily that the unavailability requirement of Roberts is not mandated by the Constitution and the hearsay statements are admissible as long as the evidence (1) has sufficient indicia of reliability, or (2) falls within a firmly established hearsay exception.

Section 115 — 10 is not a firmly rooted hearsay exception. However, the statute does guarantee sufficient indicia of reliability. Prior to admitting the evidence, the statute requires the trial court find that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b)(1).) Moreover, when the child is unavailable to testify, the statute requires corroborative evidence of the act which is the subject of the statement. Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b)(2)(B).

It should be noted that the application of Inadi and Bourjaily to section 115 — 10 does not minimize the additional statutory safeguards required when the child is unavailable to testify. Inadi and Bourjaily interpret the confrontation rights guaranteed defendant by the United States Constitution. The State of Illinois can statutorily provide defendant more rights than he is entitled to under the United States Constitution. These additional statutory rights are not affected by our ruling here.

The trial court did not err in admitting the publication Red Flag, Green Flag People, or the photocopies of its pages on which B.R. drew. The admission of such evidence does not necessarily require scientific data, studies, or research regarding its reliability. The trial court can appropriately consider the weight to be given such evidence from the testimony at trial. The trial court admitted the publication for the limited purpose of corroborating the fact B.R. received an offensive touch. Though B.R.’s drawings constitute admissible hearsay pursuant to section 115 — 10 and not corroborative evidence, we do not find the trial court erred in its admission.

Last, defendant contends he was not proved guilty beyond a reasonable doubt. In making this allegation, defendant contends the evidence against him was conflicting and inadequate and questions the credibility of his ex-wife, Carolyn Roy. Defendant cites common law standards, such as, “[a] charge of sexual assault is easy to make but difficult to disprove” and “the complainant’s testimony must be clear and convincing or corroborated by other evidence.” People v. Laughlin (1987), 163 Ill. App. 3d 115, 123, 516 N.E.2d 535, 540.

We now state the standards cited by defendant are invalid and a reflection of archaic and sexist views. (See People v. Cole (1990), 193 Ill. App. 3d 990, 997, 550 N.E.2d 723, 728 (Steigmann, J., specially concurring).) Based upon eighteenth-century insight, Lord Hale originated the maxim rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho ever so innocent.” (I M. Hale, Pleas of the Crown 635 (1778).) This rationale ultimately evolved into the rule that evidence in a sex offense case must be substantially corroborated or the testimony of the victim must be clear and convincing.

However, there is no additional requirement that in a case in which a sex offense is charged the State must, in addition to proving the defendant guilty beyond a reasonable doubt, demonstrate either the evidence is substantially corroborated or the victim’s testimony is clear and convincing. The testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements. The time has passed to rid the law of this sexist anachronism. The standards cited by defendant are inapplicable and unnecessary.

The trial court did not err in finding defendant guilty. In making its finding, the trial court specifically noted the lack of evidence of fabrication or opportunity to fabricate on B.R.’s part; the observations and diagnoses of Dr. Lanker and Dr. Beutow; B.R.’s statements to Carolyn Roy and Pam Gremmels; defendant’s statement to Officer Brown he had not sexually abused his children — prior to any mention of sexual abuse; and the demeanor, credibility, and interest of all the witnesses.

The resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. The reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to defendant’s guilt remains (People v. Wise (1984), 128 Ill. App. 3d 330, 470 N.E.2d 1155 (employing the standard stated in People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77)). (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) Here, the evidence was sufficient for the trial court to find defendant guilty beyond a reasonable doubt.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    DONNA RUTH HACKETT, Plaintiff-Appellant, v. EQUIPMENT SPECIALISTS, INC., Defendant-Appellee and Third-Party Plaintiff-Appellee (Custom Farm Seed Company, Third-Party Defendant-Appellant).
    First District (6th Division)
    No. 1-88-1769
    Opinion filed February 9, 1990.
    Modified on denial of rehearing September 7, 1990.

      Lane & Munday, of Chicago (Fred Lane and John J. Munday, of counsel), for appellant Donna Ruth Hackett
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James Ferrini, of counsel), for appellant Custom Farm Seed Company.
    Baker & McKenzie, of Chicago (Frank D. Morrissey, Thomas F. Tobin, Michael A. Pollard, and Kathleen M. Dedmon, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Donna Ruth Hackett, was injured while working on machinery manufactured by defendant, Equipment Specialists, Inc., and she filed a products liability suit against defendant. Defendant filed a third-party action against plaintiff’s employer, third-party defendant Custom Farm Seed Company.

Following a trial, a jury found in favor of plaintiff and against defendant, awarding $872,340 in compensatory damages. However, the jury found plaintiff had assumed 45% of the risk of her injury and reduced the total award to $479,787.

In the third-party action, the jury found in favor of defendant/ third-party plaintiff and against the third-party defendant. The jury apportioned 100% of the damages to third-party defendant and 0% to defendant/third-party plaintiff.

Plaintiff appeals from the judgment entered on the jury verdict in favor of plaintiff and against defendant. Plaintiff contends that the trial court erred in permitting third-party defendant’s witness to give expert opinions; that defendant failed to perfect the impeachment of plaintiff’s expert witness; that the jury’s finding that plaintiff assumed 45% of the risk was against the manifest weight of the evidence; that defendant’s closing argument in regard to damages had no basis in the evidence and was misleading; and that defendant’s closing argument included improper attacks on plaintiff’s attorney. The third-party defendant appeals, contending that the jury award constitutes full indemnity for defendant, which is impermissible. We summarize the relevant evidence.

In 1975, third-party defendant entered into a contract with defendant for the manufacture and installation of a com-husking system designed to mechanically remove husks from ears of corn, which third-party defendant used in its small farm products processing business. The contract provided that defendant “assumes total responsibility for all phases of” equipment installation, and third-party defendant “has no responsibility in this area.” It was also defendant’s “express responsibility *** to operate each function of the plant and all pieces of equipment to determine that all processes throughout the plant operate in the manner designed.” Finally, it was defendant’s “responsibility to explain each operation permitting Custom management to completely understand all phases of the operation as well as variables within the operation for com processing.”

The husking process is set up through four husking bins. Inside each bin are rubber fingers which rotate to remove the husks from the corn. The corn then moves out of the husking bins and drops to a sorting table. The husking bin is located directly above the sorting table. The table is a continuously moving conveyor belt which moves the ears of corn out of the building and on to the drying process. The belt runs the entire length of the husking building. The belt has a motor-driven roller on one end. That roller causes the belt to turn in a circular fashion. The other end, where plaintiff was injured, consists of an idle roller that was turned by the moving belt as the belt completed its continuous circuit. The idle roller had no motor attached. As the belt moved around the idle roller, a pinch or “nip” point was created. As an object came into contact with the pinch point, the turning pulley and moving belt would draw the object in towards the roller, crushing it between the belt and the roller. No guards were present at the pinch point. The third-party defendant had installed a guard by the motor-driven roller.

Just after high school graduation, plaintiff began working for third-party defendant in 1980, detasseling corn in the corn fields. She became a sorter in September 1980, one month before the accident. She was to ensure that the corn coming out of the husking bins had been properly husked. If husks remained on the ears when they dropped on the sorter table, plaintiff was to throw the corn back up into the husking bin to be reprocessed. On October 7, 1980, plaintiff was injured when she reached into the tail-end roller area to retrieve an ear of corn. Her hand became caught in the roller. Subsequently, her arm was amputated above the elbow.

Everette Ward, a former employee of defendant, testified for plaintiff that defendant was obligated to provide a system ready for operation. Ward testified, however, that he had no expertise in equipment safety. Ward testified that defendant knew the corn could fall from the top belt to the lower, return portion of the moving belt. Defendant was aware that the corn could come into contact with the “nip” point on the idle roller. Defendant did not install guards at the nip points. The guards were relatively simple to install and later machines installed by defendant included such guards.

Brenton McKee, third-party defendant’s president, testified that he was informed by defendant that the equipment as designed and installed met Occupational Safety Health Act (OSHA) requirements. The third-party defendant voluntarily sought OSHA inspections, which were made annually. OSHA did not recommend that guards were needed. All recommendations made by OSHA personnel were followed. However, McKee knew that OSHA regulations required that the pinch point be guarded. He did not instruct the company’s safety manager to install a guard at the pinch point. He assumed the plant manager would know that OSHA required the pinch point to be guarded.

McKee testified that defendant never recommended to the third-party defendant that it install guards at the tail end of the conveyor belt system. Third-party defendant placed safety warning signs on each of the four husking bins. It instructed employees not to unclog a husking bin, and not to put a hand into the husker. The employees were not told to avoid putting their hands near the “nip point” created by the conveyor and tail pulley because management never saw employees put their hands into that area, and never expected anyone to do so.

McKee knew that a pinch point was created between the lower belt and the roller at the tail end of the sorting table. He also knew that if a worker put a hand in the pinch point, the hand would get caught.

Francis Dwayne Brushingham, an employee of defendant, testified for third-party defendant that employees were instructed regarding moving equipment. They were told never to clean any portion of the lower belt. The employees were not told, however, to avoid placing their hands near the “nip” point.

Professor Ralph Barnett testified for plaintiff as an expert in safety engineering. He opined that the condition of the machine as designed and installed by defendant was unreasonably dangerous. “And that condition mainly is a nip point at the tail end of the pulley. That particular place on the unit is a hazard, and that means that that is a place on this conveyor where you have an injury potential.” The hazard could be eliminated by installing a guard. It was the joint responsibility of the installer and the operator of the equipment to provide suitable guards and warnings for machinery under applicable safety standards.

Plaintiff testified that her supervisors had showed her various warning signs. The signs read: “Danger. Hand Hazards. Watch Your Fingers”; and “Be Safe. Keep Away From Moving Parts.” Plaintiff was instructed never to try to unclog a husking bin or put her hands into the husker. She had never been warned about a danger created by the pinch point at the tail end area. She was not aware of any danger created by the pinch point.

Plaintiff was generally aware that body parts should be kept away from moving equipment. On the husking system, plaintiff could see the rollers turning and had seen supervisors use sticks to unclog the husking bins. She could “sort of” see the lower belt and “might have seen it moving.” Plaintiff knew there was a stop button for the husking system located near her work station. The stop button stopped all machinery in the building. The sorting table was stopped when workers needed to clean the table. She usually wore loose-fitting, white cotton work gloves.

Plaintiff testified that on the day of the accident one load of corn had been processed and plaintiff stepped back from the conveyor to await another truckload of corn. It was one minute before lunch and five minutes after the corn had stopped running. She saw two cobs of corn which had fallen between the upper and lower levels of the moving conveyor belt. They were gently spinning or tumbling against the idle roller. She did not stop to think about what was making them spin, but was aware of the moving belt. She easily removed the first ear. The second ear was deeper and could be seen by stepping back and bending down towards the lower belt. Plaintiff positioned herself so her head was above the belt, blocking her view, and she reached in to remove the com. Her gloved fingers made contact with the pinch point, and her right hand and arm were pulled into the machine.

Plaintiff also testified regarding her daily use of the prosthetic devices she required. There was a mechanical arm and the myoelectric or “Utah” arm.

Plaintiff’s mother, Donna Hackett, testified that she also worked for third-party defendant. Safety signs were prominently placed on each machine. Employees were told not to put their hands in a husker. Plaintiff’s mother also testified regarding plaintiff’s use of the prosthetic arm.

Jack East, a social worker, testified for plaintiff as an expert in prosthetic and other needs of amputees. He recommended that plaintiff have two myoelectric “Utah” arms and one mechanical arm. He made certain cost projections based on that recommendation.

Dr. Dennis Pollack, a clinical psychologist, testified for third-party defendant as a vocational expert for disabled persons. Pollack telephoned about four people in the country and questioned them about the myoelectric “Utah” arm. He offered an expert opinion that the “Utah” arm was less desirable than the mechanical arm, and that no back-up arms were necessary.

Plaintiff first contends that the trial court erred in allowing Dr. Pollack to be qualified as an expert on prosthetic devices.

An expert is one whose testimony will assist the trier of fact to understand the evidence. (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 444 N.E.2d 220.) A witness testifying as an expert must possess special knowledge or experience in the particular area about which he expresses an opinion. (Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580, 464 N.E.2d 644.) If the witness fails to show he possesses such knowledge, it is error to permit him to testify as an expert. Hagerman v. National Food Stores, Inc. (1972), 5 Ill. App. 3d 439, 283 N.E.2d 321.

Two prosthetic devices were available to plaintiff, a mechanical arm and a myoelectric “Utah” arm. East testified that purchasing and maintaining a myoelectric arm over plaintiff’s lifetime would be $1,790,390. A back-up myoelectric arm was necessary, at a cost of $895,195. In contrast, purchasing and maintaining a manual or mechanical arm would be $45,537.

In a voir dire, plaintiff was allowed to explore Dr. Pollack’s qualifications as an expert in the area of prosthetic devices. The court overruled plaintiff’s objection and qualified Dr. Pollack as an expert.

Dr. Pollack then testified that in his opinion plaintiff should use a mechanical arm, not a myoelectric arm. Furthermore, even if she used a myoelectric arm, no second, back-up arm was necessary.

We agree that for the jury to resolve the significant difference in the damages requested for the two types of prostheses, testimony regarding the desirability of one prosthetic device over the other required an opinion from a person of skill and experience in that field.

Dr. Pollack, while he may have had excellent qualifications in the field of employment counseling for handicapped persons, was not an expert in the field of prostheses. In the voir dire, Dr. Pollack repeatedly emphasized that he was not a qualified expert in prosthetic devices:

“PLAINTIFF’S ATTORNEY: Isn’t it correct that you do not hold yourself out to be an expert in prosthetic devices?
DR. POLLACK: That is correct.
Q. And isn’t it a fact that the survey that you did was just to gather information about the Utah arm just like anybody else could gather information?
A. That’s true. It was to gather information.
Q. So you are not an expert in the — in the repair and replacement of prosthetic devices?
A. No.
Q. You’re not an expert in the use of mechanical — of prosthetic devices; is that correct?
A. Only insofar as vocationally.
Q. All right. You’re not an expert even vocationally in the use of the Utah arm; is that correct?
A. Of the Utah arm, no.
Q. And your testimony here then is from a survey that you did?
A. That’s correct.
Q. Is that correct?
A. Yes.
Q. And the survey that you did was the same survey that could be done by anybody else; is that correct?
A. That’s correct.”

Dr. Pollack later testified similarly:

“DR. POLLACK: Am I an expert? I think there’s [sic] two different parts that I think you’re getting at. Do I have knowledge about the area of prosthetic devices? Yes, I have knowledge.
As a vocational expert, can I go obtain knowledge about prosthetic devices particularly as they relate to work? I can do that.
The next question is, am I a prosthesis specialist? No, I’m not. I don’t claim to be.
PLAINTIFF’S COUNSEL: Do you have any expertise in the advantages of one system over another? Because that’s what we’re talking about here.
DR. POLLACK: Only from the knowledge that I’ve gained when I went out to gain from the survey.”

We agree with Dr. Pollack’s refusal to characterize himself as an expert in the field of prostheses. Dr. Pollack is a clinical psychologist specializing in the evaluation and job placement of disabled people. He has performed 1,200 to 1,500 evaluations of the physical requirements of various jobs for SSA. Ninety percent of his practice is devoted to the evaluation and job placement of people with mental and physical handicaps. In this case, he was asked to evaluate the record to see if plaintiff was employable as a graphic artist. Thus, he familiarized himself with her particular handicap, and he visited businesses to determine what duties a graphic artist performs. In considering a job opportunity, he takes into account the prosthetic device to be used. He had no familiarity with the Utah arm. The only basis for his opinion that the mechanical arm was preferable to the Utah arm was a telephone survey he took.

Dr. Pollack lost the names of the three or four prosthetists he spoke with and could only remember which cities they lived in. He was not familiar with their qualifications. He obtained their names “[flrom other prosthetists and phone books. That’s where I got them.” He thought two of the prosthetists recommended against using the Utah arm.

There is nothing in either Dr. Pollack’s educational background or experience that qualifies him to offer an expert opinion as to the advantages of one type of prosthetic device over another. His extensive background, and the true value of his testimony here, related only to plaintiff’s vocational opportunities. He performed the type of vocational evaluation which he had previously performed thousands of times. He concluded that plaintiff could work and was employable as a graphic artist. His expertise stopped at that point. The attempt to tack on a somewhat related but quite distinct expertise in prostheses by slipping in the telephone survey failed to transform a disabled person’s vocational expert into an expert experienced or trained in principles necessary to compare the state of the art prostheses at issue here.

In permitting Dr. Pollack to testify, the trial court analogized to a “medical doctor who comes up against a problem he’s not familiar with, going to the books for the first time,” and “what he reads in those medical books is beyond the average layman picking up the telephone and calling two or three guys in the profession that really know something about it and asking them their opinion and then applying his knowledge to what he already knows plus whatever they gave him to giving an opinion on that subject to the patient.” Significantly, however, the medical doctor must first be trained or experienced in the area of medicine, and then he might add to that training or experience by reading more specialized medical literature or consulting with other identified, qualified experts. (See Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 473 N.E.2d 1322.) In this case, Dr. Pollack started out with no training or technical experience in the field of prosthetic devices, and added to that total lack of knowledge by “consulting” with unidentified, possibly unqualified persons. See Vazirzadeh v. Kaminski (1987), 157 Ill. App. 3d 638, 510 N.E.2d 1096.

Third-party defendant argues that plaintiff’s expert on prosthetics, Jack East, was no more qualified than Dr. Pollack. Third-party defendant maintains that their qualifications were virtually identical.

In 1972, East formed a nonprofit organization called American Amputees Foundation. One of its primary functions is to provide amputees with information about technological advances in the area of prosthetics. Moreover, as a licensed social worker he is required to attend 48 hours of continuing education classes every two years. Within that field, he chose biomedical engineering, which includes prostheses. He also writes a column for amputees in a publication reaching 18,000 consumers every quarter. The column provides information on state of the art prosthetics. This requires evaluation and testing of equipment. Moreover, the Foundation’s computer data base includes a network of professionals involved in prosthetics.

East, unlike Dr. Pollack, offered extensive testimony detailing the specific attributes of the Utah arm, its unique qualities, the functions it can perform, and its components, including electronic circuitry and microchips. He explained some of the recent refinements on the Utah arm. He had worked with six people who use Utah arms.

In conclusion, the only thing third-party defendant accomplishes by inviting us to compare Dr. Pollack’s and East’s qualifications is to further highlight Dr. Pollack’s complete lack of experience to qualify him as an expert on this issue.

We hold that the trial court abused its discretion (see Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 302 N.E.2d 257) in qualifying Dr. Pollack as an expert qualified to give an opinion on the desirability of using one prosthetic device over another.

Plaintiff next contends that defendant committed reversible error by failing to perfect the impeachment of plaintiff's expert witness, Professor Barnett. Barnett testified that the machine as designed and installed was unreasonably dangerous. In cross-examination and recross-examination, defendant’s attorney questioned Barnett regarding a previous case in which Barnett had testified:

“Q. You have testified in the past in a case by the name of Ciezadlo that a conveyor about this size that had a tail pulley like this, that the tail pulley which was unguarded was guarded by location, have you not?
A. Many times I have testified that way when they’re guarded by location.
Q. Right. And you testified on my behalf in the Ciezadlo case that an unguarded roller of this fashion was guarded by location?
A. Right, and you didn’t have a work station there.
Q. And it was down on the floor like this; is that right?
A. That’s correct.
Q. And the testimony there was that it was beside a walkway where people were coming by with the tools and the clothes and the long hair and all of the other ways that you have testified to today, and you still testified that it was guarded by location, did you not?
A. I’m very sorry, I don’t remember any of those elements.
Q. You don’t?
A. No.
* * *
Q. And in that same Ciezadlo case, the people who had long hair, it would get caught in this, and if people had hand tools were walking right by it, and the people that would slip and get caught in it were all walking in the same place?
A. I’m sorry. I know nothing about that. You must have kept something back from me on that case.
Q. I’m sure I didn’t, and I’m sure you were examined by that other lawyer on it.”

In order to impeach a witness with a prior inconsistent statement, the impeachment must be completed by later offering evidence of the inconsistent statement if the statement was denied. (Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491.) It is reversible error to fail to offer substantive proof of the impeaching statements due to the highly prejudicial innuendo created through the incomplete impeachment. Green v. Cook County Hospital (1987), 156 Ill. App. 3d 826, 510 N.E.2d 3; Danzico v. Kelly (1969), 112 Ill. App. 2d 14, 250 N.E.2d 801.

Here, Barnett expressly and repeatedly denied testifying about the safety of unguarded conveyor belts in a manner directly opposing the expert opinion he offered in the present case. Defendant, however, made no attempt to complete the impeachment at any time during the remainder of the trial. The line of questioning would lead the jury to conclude Barnett had previously testified in a manner inconsistent with his trial testimony. Such error requires reversal for a new trial which is free from such prejudice.

Defendant, however, relies upon Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 553 N.E.2d 291, for the proposition that plaintiff waived this issue by failing to object both to the admission of impeaching testimony and the failure to perfect the impeachment. Gillespie, however, is not authority for a holding of waiver by failing to object to proper questions themselves. There, the questions elicited the contents of a nurse’s notes by another witness, a doctor. Bringing out the contents of the nurse’s notes was improper. The plaintiff’s attorney had previously kept out any reference to the notes on the ground that her notes were hearsay. During the examination of the doctor, who then testified about the nurse’s notes, the plaintiff objected on the ground that the question was leading and later objected to the form of the question. Additionally, the plaintiff withdrew his objection to references to the nurse’s notes during a deposition and used by plaintiff at trial, thus revealing “a calculated strategy to hear particular references to the nurse’s note,” but not hear other references to the same note. (Gillespie, 135 Ill. 2d at 374.) There is no requirement that plaintiff here had to object to the questions themselves, and Gillespie is not authority to the contrary on this narrow point.

We also note that the present case involved a blatant mischaracterization of fact and defense counsel’s attack on Barnett’s character. Defense counsel countered Barnett’s repeated denials of certain facts in Ciezadlo with: “I’m sure I didn’t [keep back facts from you], and I’m sure you were examined by that other lawyer on it.” Defense counsel, in effect, testified himself that Barnett had previously offered an opinion contrary to the one he offered in this case, despite nearly identical facts; and that Barnett was lying about the factual basis of his opinion in the other case. Consequently, absent the perfection of that attempted impeachment, it was impossible for the jury to come to a fair decision based on the information before it.

Defendant contends that the impeachment was properly completed because, having indicated to Barnett that the prior statements involved the Ciezadlo case, Barnett had “enough information to protect him against unfair surprise and *** an opportunity to explain the statement with which he was confronted.” This is not a proper manner of impeachment; it merely points to the preliminary step of laying a foundation. See Sellers v. Hendrickson (1977), 46 Ill. App. 3d 549, 554, 360 N.E.2d 1235.

Third-party defendant also argues that the impeachment was properly completed because “Barnett not only testified that he did so testify in the Ciezadlo case, but also stated that he had so testified in that manner on many occasions.” That assertion distorts the testimony quoted above. Barnett merely stated that it is not necessary to install a guard on any particular portion of machinery if the location of the machine itself prevents workers from coming into contact with the moving parts. In this case, he pointed out that plaintiff’s working station was immediately next to the pinch point area on the sorting table. Thus, there was no admission by Barnett which somehow completed the impeachment which counsel initiated.

Since we are reversing and remanding for a new trial, we address those remaining issues which will arise again on remand.

Plaintiff contends that the court erred in allowing defendant to include in closing argument remarks regarding an economic theory called the “Rule of 72.” The basic rule, frequently used in similar cases, is that there is a formula for determining the length of time it will take for a given amount of money to double at a given compound interest rate. Thus, the formula is 72 divided by the interest rate. The theory permits the jury to calculate present value of some of plaintiff’s damages. We find no error in the use of this type of argument. (See, e.g., American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 484, 511 N.E.2d 1206; Shaheed v. Chicago Tran sit Authority (1985), 137 Ill. App. 3d 352, 360, 484 N.E.2d 542; Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 725, 449 N.E.2d 250.) In regard to the mathematical errors to which plaintiff points, we assume that mathematical errors, if any indeed occurred, would not occur during the new trial.

Finally, plaintiff contends that the court erred in denying plaintiff’s motion for a directed verdict on the issue of assumption of risk because the jury’s finding that plaintiff assumed 45% of the risk of her injury was against the manifest weight of the evidence. (See Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) Plaintiff bases her argument mainly on the assertion that “defendant failed to offer one scintilla of evidence to prove that plaintiff knew and appreciated the risk of her injury.” See McCracken v. Westinghouse Air Brake Co. (1981), 103 Ill. App. 3d 26, 430 N.E.2d 539; Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 373 N.E.2d 1371.

The test for assumption of risk is whether plaintiff subjectively knew of the risk. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Even where plaintiff claims ignorance of the danger, cross-examination of plaintiff may sufficiently establish the defense of assumption of risk. (Martinet v. International Harvester Co. (1977), 53 Ill. App. 3d 213, 368 N.E.2d 496.) The jury’s verdict will not be disturbed unless an opposite conclusion is clearly apparent or the findings of the jury appear to be unreasonably arbitrary and not based on the evidence. Where there is evidence that, if believed, would support the verdict, we will not interfere with the jury’s decision. See Parsons v. Winter (1986), 142 Ill. App. 3d 354, 358, 491 N.E.2d 1236; Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 158, 349 N.E.2d 578.

Here, plaintiff, her mother, and several other witnesses testified regarding the warning signs placed at each work area. Plaintiff was instructed never to try to unclog a husking bin or put her hands into the busker. She was aware that body parts should be kept away from moving equipment. She knew a stop button located near her work station would stop the conveyor belt, and knew that the belt could not harm her if it were stopped. It was one minute before lunch, when the belt would be stopped. The belt was always stopped when workers needed to clean it. Plaintiff had never been instructed to clean the belt.

In addition to this general awareness of the alternatives to placing a loosely gloved hand near moving machinery, the method in which plaintiff removed the second ear of corn could lead a jury to believe she assumed some risk. Plaintiff saw the corn tumbling or spinning against the roller. Plaintiff positioned herself so that her view of the moving roller, the ear of corn and her hand were completely blocked. She blindly stuck her arm into the pinch point area, reaching for the corn.

This evidence, if offered on retrial and if believed by the jury, would support a verdict apportioning some percentage of the risk of injury to plaintiff herself.

We limit our holding to the finding that there was sufficient evidence of assumption of risk to permit the jury to decide the issue. We in no way intend to indicate whether the 45% figure or any particular figure, even zero assumption of risk, would be more appropriate. On retrial, the question should be given to the jury.

Plaintiff’s complaint that defense counsel made improper attacks on her attorney during closing argument is unlikely to recur on retrial, and we need not discuss it.

In the third-party action, third-party defendant Custom Farm Seed Company appeals from the judgment entered on the jury verdict apportioning 100% of the liability to third-party defendant, and 0% of the liability to defendant/third-party plaintiff Equipment Specialists, Inc. Third-party defendant contends that the jury, in the name of contribution, awarded defendant full indemnity, and such an award is impermissible under the law, both because the law does not provide for full indemnity and because defendant is an active tortfeasor.

The jury found defendant liable to plaintiff. It assigned 55% of the comparative fault to defendant. It necessarily concluded that defendant proximately caused plaintiff’s injuries when defendant designed and manufactured a defective or unreasonably dangerous product. In fact, defendant offers no challenge to the jury finding of its culpability. Yet, the jury found defendant completely free of fault and also found third-party defendant 100% at fault.

Thus, as between plaintiff and defendant, plaintiff assumed 45% of the risk, and defendant was 55% at fault. But as between defendant and third-party defendant, the “55% comparative fault” disappeared completely.

Defendant is only entitled to contribution to the extent plaintiff’s injury was caused by third-party defendant, and not by defendant. (See Doyle v. Rhodes (1984), 101 Ill. 2d 1, 19, 461 N.E.2d 382.) It is logically impossible, when the focus is changed from the plaintiff/ defendant relationship to the defendant/third-party defendant relationship, for defendant’s fault to disappear. Defendant still owed plaintiff a duty; still deviated from that duty; and still proximately caused plaintiff’s injury. The fact that third-party defendant also owed a duty, deviated, and caused the injury cannot expunge defendant’s role. Moreover, defendant had obligations under its contract with third-party defendant to ensure the safety and proper functioning of the husking system.

It is true that under the law of indemnity one tortfeasor could sometimes completely dissolve its own portion of fault and shift the entire burden to a joint tortfeasor. Generally, however, implied indemnity no longer exists in Illinois when contribution is available. (Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 495 N.E.2d 496.) There still may be certain instances where a third-party plaintiff may receive 100% contribution from a third-party defendant. In Doyle v. Rhodes, the court noted that a right of indemnity or total contribution might still exist in limited circumstances not present before the court in that case, such as where one held liable for failing to correct a dangerous condition may seek full contribution from the party whose conduct was the sole proximate cause of the injury by creating the unreasonably dangerous condition. Here, however, the third-party plaintiff manufacturer could never prove it would not have designed and manufactured the dangerous product if the third-party defendant employer had not first failed to install a guard on the product. Similarly, we do not have a third-party plaintiff employer subject to liability because it failed to add a guard to a defective product, turning to a third-party defendant who manufactured and created the defective machinery.

Defendant also maintains that the jury found that third-party defendant assumed the entire risk. Assumption of risk is no longer an appropriate basis for contribution. J.I. Case v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 516 N.E.2d 260.

Thus, in applying the legal principles under the rule permitting contribution between joint tortfeasors, it would seem impossible to uphold the jury’s 0%/100% apportionment here. Under the record before us, defendant cannot be absolved of all responsibility under any theory of law in Illinois.

Defendant relies upon Hanlon v. Airco Industrial Gases (1986), 148 Ill. App. 3d 1039, 1047, 500 N.E.2d 494 to show a party found strictly liable can seek 100% contribution from another party who was actually and solely at fault. However, the jury in the present case found defendant at fault. Thus, the third-party defendant could not be solely at fault. Furthermore, in Hanlon the party seeking indemnity was the distributor, not the manufacturer of the product.

Defendant also relies on Pipes v. American Logging Tool Corp. (1985), 139 Ill. App. 3d 269, 274, 487 N.E.2d 424, for the principle that the jury can place the loss in proportionate amounts on those whose actions proximately cause the injury without traditional labels characterizing the kind of fault involved. However, even there the jury attributed 10% fault to the employer and 90% fault to the manufacturer of the defective product.

For the foregoing reasons, the judgments of the circuit court of Cook County on the principal complaint and on the third-party action are reversed and the cause is remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded.

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


author: JUSTICE O’CONNOR

text:
    SHRED PAX CORPORATION, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Robert Sweet, Director, Defendant-Appellee.
    First District (1st Division)
    No. 1-89-0925
    Opinion filed June 11, 1990.
    Modified on denial of rehearing September 10, 1990.

      Leonard Cuttone, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The Illinois Department of Revenue (the Department) commenced this action against Shred Pax Corporation (Shred Pax) for sales taxes under the Retailers’ Occupation Tax Act (ROTA) (Ill. Rev. Stat. 1987, ch. 120, par. 440 et seq.) since Shred Pax had not collected and remitted tax on shredding machines it had manufactured and sold.

Pursuant to ROTA, the Department issued Shred Pax a notice of tax liability totalling $66,147.97, including interest and penalties for the period of the audit, which covered the period from July 1981 through March 1984. At hearings held in March and May 1986, the Department’s auditor testified that the tax assessment was based on the determination that the shredding devices did not qualify as pollution control equipment, and thus, were not tax exempt. The audit consisted of an examination of Shred Pax’s financial records, a tour of the facility, and discussions with A1 Kaczmarek, Shred Pax’s president.

Kaczmarek testified that the shredding machines were used to reduce items, such as tires, boxes, gallon drums, and aerosol cans, and that he invented the shredding equipment to eliminate or reduce pollution. He also stated that the machines yielded direct economic benefits to certain purchasers by reducing the size of products, such as steel, plastic, or cardboard, that were to be shipped or recycled. Richard Palumbo, a professional engineer, also testified for Shred Pax. He stated that the shredding machines’ primary purpose was to eliminate or reduce pollution because the equipment treats, pretreats or modifies waste, and eliminates, or prevents, or reduces air and water pollution. Additionally, Palumbo testified that the shredding equipment’s use would reduce the volume of landfill waste, causing a total reduction in landfills, and would make recycling more effective.

Max Delsoin, the Department’s revenue audit supervisor, testified that a tax exemption was not allowed because the shredding machines have an economic benefit rather than a pollution control purpose. Delsoin also stated that Shred Pax did not present any evidence showing that its customers certified that they were purchasing the machines for pollution control purposes, and that if such evidence existed, Shred Pax as the seller would not have been liable for the taxes.

The administrative law judge issued a decision recommending that Shred Pax be granted a tax exemption in that pollution control was the primary purpose of the shredding equipment. The Department’s Director, however, rejected the recommended decision and found Shred Pax liable for the taxes. The Director noted that under ROTA all sales of tangible personal property are presumed to be taxable and that the burden is on the taxpayer to prove by a preponderance of the evidence that it is entitled, as a matter of law, to be excused from taxation. According to the Director, Shred Pax failed to prove that pollution control was the primary purpose of the shredding equipment and that the ultimate user intended to use the equipment for pollution control. Additionally, the Director interpreted section 130.335(a) of 86 Illinois Administrative Code to require the purchaser to certify to the seller that the intended use of the equipment is pollution control in order for the seller to be relieved of the duty of collecting and remitting tax on the sale, and noted that Shred Pax presented no such certification from any customer.

Thereafter, Shred Pax sought judicial review of the Department’s decision. The circuit court of Cook County affirmed the Department’s decision and entered a final order of judgment in favor of the Department amounting to $70,462.57, including interest and penalties through March 15, 1989. Shred Pax appeals.

Shred Pax argues that it should be relieved from its duty to collect and remit sales tax under ROTA because its shredding equipment was sold or used or intended for the primary purpose of pollution control facilities. (Ill. Rev. Stat. 1987, ch. 120, par. 440a.) We agree. Initially, Shred Pax as a seller of personal and tangible property has the duty to collect and remit sales tax until it can prove otherwise. (Ill. Rev. Stat. 1987, ch. 120, par. 444.) One way a taxpayer rebuts the Department’s prima facie case that tax is due is by producing a certification of the buyer’s intended use of the product. (86 Ill. Admin. Code § 130.335(a) (1985); American Welding Supply Co. v. Department of Revenue (1982), 106 Ill. App. 3d 93, 103, 435 N.E.2d 761.) While the Department’s certification procedure is entitled to some deference as an administrative interpretation of the statute, it is not binding on the courts and cannot be deemed to limit or extend the scope of the statute. (American Welding Supply Co. v. Department of Revenue (1982), 106 Ill. App. 3d 93, 103, citing Du-Mont Ventilating Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197.) We find that the Director’s interpretation of the statute improperly narrows the pollution control exemption therein, and unduly restricts the ability of a seller to rebut the presumption that tax is owed.

Even though Shred Pax did not produce any buyer’s certificates establishing the intended use of the shredding equipment, Shred Pax rebutted the presumption by introducing evidence that the shredding equipment’s primary purpose was pollution control. In particular, Kaczmarek testified that the shredding equipment reduces bulk waste, the amount of noxious gases, and waste materials. Specifically, systems or methods used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution are not subject to retailer’s occupation taxes since those systems or methods qualify as “pollution control facilities.” (See Du-Mont Ventilating Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197.) According to the statute, “[pollution control facilities means any system, method, construction, device or appliance appurtenant thereto sold or used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution *** or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.” (Ill. Rev. Stat. 1987, ch. 120, par. 440a.) The “primary purpose” test seeks to determine the function and ultimate objective of the equipment alleged to be exempt, and only those facilities directly involved in the pollution abatement process are to be afforded special tax status. (Central Illinois Public Service Co. v. Department of Revenue (1987), 158 Ill. App. 3d 763, 767-68, 511 N.E.2d 222; Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, 381-82, 346 N.E.2d 69, 71.) We find, as a matter of law, that the shredding equipment is a pollution control facility by the shredding equipment’s very use, and that any economic benefits that the ultimate user, rather than the seller, derives from the shredding equipment are ancillary benefits to the use of the shredding equipment and not the primary purpose of the shredding equipment. Accordingly, as a matter of law, Shred Pax has established that the shredding equipment was intended for the primary purpose of pollution control.

We need not address additional issues raised by Shred Pax since we reject the Director’s interpretation of section la (Ill. Rev. Stat. 1987, ch. 120, par. 440a) that Shred Pax could only rebut the presumption of tax liability by producing a certification of the buyer’s intended use of the product. Accordingly, we reverse the judgment of the circuit court of Cook County.

Reversed.

BUCKLEY, P.J., and MANNING, J., concur.