author: PRESIDING JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. SANDY, Defendant-Appellant.
    Fourth District
    No. 4 — 88—0843
    Opinion filed September 28, 1989.

      Michael Q. Jones, of Urbana, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

A jury convicted defendant of two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3)), aggravated battery based upon great bodily harm (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a)), aggravated battery of a child (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4.3(a)), and cruelty to children (Ill. Rev. Stat. 1987, ch. 23, par. 2368). The jury found defendant not guilty of two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and not guilty of one count of first degree murder based upon aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3)). The court sentenced defendant to 35 years’ imprisonment.

Defendant appeals, arguing: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in refusing his instruction defining “knowingly”; (3) the trial court erred in refusing to instruct the jury that involuntary manslaughter is an included offense in felony murder; (4) verdicts of guilty of felony murder based upon aggravated battery and not guilty of murder are legally and logically inconsistent; and (5) testimony concerning “Tin Ear Syndrome” was improperly admitted.

We affirm.

On January 13, 1988, an information was filed charging Michael Sandy, defendant, with several offenses in connection with the death of H.N. At trial, Robert Huff, a Danville police officer, testified that on January 11, 1988, at 5:45 p.m., he responded to an emergency call. When he arrived at the scene, Huff saw defendant and a child, who was not breathing. While en route to the hospital, defendant said he had not meant to do it. He went out to get a Coke, and when he came back to the bedroom, H.N. was lying on the floor. Defendant told Huff the child bruised easily. Huff observed a large bruise underneath H.N.’s chin and a bruise on her arm. At the hospital, defendant told Huff that Lisa Norman, H.N.’s mother, went to pick up dinner. H.N. made faces at defendant, so he went into the bedroom to reprimand her. He shook her, then went to get a soft drink. When he reentered the bedroom, she was lying on the floor.

Gene Woodward, an investigator with the Danville police department, arrived at St. Elizabeth’s Hospital at 6:10 p.m. He talked to Huff; then looked at H.N. at 6:15 to 6:20 p.m. Woodward noticed bruises on H.N.’s right eye, both cheeks, left ear, her chin, back of the neck, chest between the nipples, above her navel, both arms, the cheeks of her buttocks, and the area between both of her buttocks.

Michael J. Meinzen, director of the trauma center at St. Elizabeth’s Hospital, testified that at 5:50 p.m. he began treating H.N. She had no movement, no pulse, and was not breathing. Her skin appeared pale and bluish in tint. After four minutes, the emergency team had reestablished a heartbeat. Meinzen wanted to account for bruises not caused by his team’s effort to revive H.N. He noted a bruised jaw, belly, behind the left ear, and buttocks. Notations were made of these bruises within two minutes of resuscitating H.N. Because of the bruises, he thought there might be a head injury. The bruised left ear led him to believe she had received a blow to the head. H.N.’s physical reactions indicated increasing pressure on the brain and damage to the brain on the opposite side from the bruising. Meinzen believed she received a blow to the left side of the head.

Meinzen talked to defendant, who told him H.N. had a tantrum whenever her mother left. When her mother left to get food that evening, H.N. was screaming. H.N. bruised easily after her last surgery so he did not spank her. He took her to the bedroom, shook her to get her to stop screaming, and made her stand in a corner. When he returned to the bedroom, H.N. was twitching on the floor.

Meinzen stated shaking could have caused the trauma. The markings on the left ear were medium-sized bruises. However, Meinzen would not disagree with those who classified them as large bruises. It is possible that all of the trauma could have resulted from a single blow to the left ear. It could also have come from shaking. It was impossible to answer with certainty that a shaken child would have equal-sided brain disfunction. H.N. developed disseminated intravascular coagulation (DIG) subsequent to the trauma. This means her blood would not clot. A small injury, therefore, could result in larger bruises. Given that H.N. was a frail child, any attention-getting sort of shake could lead to injuries. |

Lawrence Rossi, director of pediatric intensive care at St. Francis Medical Center in Peoria, flew to Danville on January 11, 1988, and eventually transported H.N. to Peoria. H.N. was critically ill and exhibited symptoms of increased pressure on her brain. Rossi was not concerned that H.N.’s prior heart condition caused the problem. Tests conducted at St. Francis indicated abnormally high intracranial pressure and bleeding problems. Rossi determined H.N. was clinically brain dead.

Rossi believed a blow to the head had caused H.N.’s symptoms. He stated her physical reactions, the bruised left ear, and the initial nonglobal edema indicated a direct blow. It was more probable than not that H.N. received a direct traumatic blow to her ear, rather than being shaken. Rossi could not eliminate the possibility of a combination of a blow and shaking, but stated the major traumatic event seemed to be a direct blow. Rossi further stated that swelling of the brain occurs as a result of “Shaken Child Syndrome.” Rossi admitted shaking could not be positively ruled out as a potential cause of H.N.’s death.

William Albers, H.N.’s cardiologist, stated H.N. was born with a serious heart defect. She had surgery at four weeks old and open heart surgery in August of 1987. Albers last saw H.N. in October of 1987. She had made an excellent recovery from her surgery. Her preexisting heart condition was not related to her head injury or her death. Her heart did not trigger any injury to her brain.

Phillip Immesoete, the coroner’s physician for Peoria County, testified H.N. died on January 12, 1988, at 2:30 p.m. He performed an autopsy the next day. Brain swelling caused herniation of the brain to the foramen magnum, the opening in the skull, resulting in death. In Immesoete’s opinion, H.N. had been shaken, causing her death. However, he could not rule out the possibility of a blow to one side of her head.

A tape-recorded statement, which defendant made on January 11, 1988, was introduced. Defendant stated he disciplined H.N. by shaking her and making her stand in a corner. He did not beat, hit, or batter H.N. He was upset on January 11, 1988, as he had not visited with his natural daughter, who had the same first name as H.N., he was unemployed, his unemployment compensation had run out, and Lisa had lost her job. H.N. screamed whenever her mother, Lisa, left. On January 11, 1987, Lisa left to pick up dinner. H.N. started to cry and make faces. Defendant followed her into her bedroom to talk to her, but she would not answer him. He then shook her by the arms no more than five times and told her to answer when she was asked something. Her head did not hit anything. Defendant left H.N. in the bedroom and went to prepare pop for dinner. When he returned, H.N. was lying on the floor .gasping for air. Defendant stated there was food in her mouth.

Woodward testified defendant made another statement, admitted he was upset on January 11, 1988, and that he shook the child harder than he should have. He went back to check on her because he knew he had hurt her. On January 13, 1988, defendant requested to talk with officers again. He wanted to show them what had happened. The interview was videotaped.

In the videotape, defendant again stated he was tense and upset when he disciplined H.N. He believed he shook her harder than he should have. H.N. was in her bedroom when her mother left. She came out, saw defendant in the kitchen, and went back to her bedroom. He followed her and saw she was making faces. She was not actually making any noise. She agreed she was making faces when he asked her. While he was standing, he grabbed her arms and told her she was not supposed to do that. At the time he did not think he had shaken her that hard. Later, he regretted shaking her and wanted to make up to her, so he returned to the bedroom. H.N. was on the floor. Defendant tried to get her to stand, but she could not. He might have injured her head while trying to revive her. Defendant then demonstrated how he shook H.N.

Lisa Norman testified H.N. was 21/2 years old on January 11, 1988. Defendant moved in with Lisa in August of 1987. H.N. had a heart defect. Her last surgery was in August of 1987. After the surgery, H.N. seemed to bruise more easily. Lisa stated she spanked H.N. on the bottom but did not bruise her. However, when defendant spanked H.N., he bruised her. When Lisa left the house, H.N. would cry. She and defendant discussed this problem. Defendant would tell H.N. to stop and spank her. At the beginning of December 1987, Lisa noticed a bruise on the left side of H.N.’s face near her jaw. When Lisa confronted defendant, he said he had slapped her.

On January 11, 1988, H.N. had a small bruise under her chin. H.N. was in her room when Lisa left to pick up dinner. When Lisa returned, the police were at the house. H.N.’s left ear was not bruised before Lisa left that afternoon. The large bruise on her chin was not there either. Lisa had not seen the bruises on H.N.’s buttocks until arriving at the emergency room.

William Hannigan, a neurosurgeon specializing in pediatric neurosurgery, testified that “Tin Ear Syndrome” is the stage of injury between “Shaken Child Syndrome” and adult impact injury. It combines both a blow and shaking, with rotation of the head to cause injury. His article on the syndrome was five to six months old and had resulted from a study of three children with similar injuries and histories. All had ear bruises, similar CAT scans, and retinal hemorrhaging. None had skull fractures or ruptured eardrums. All had subdural hematomas and swelling on the side of the blow. No coup or contrecoup injuries were present. Over objection, Hannigan testified that the case histories in each situation were similar. Usually, nothing explained the severe injury and a male, recently attached to the family, was involved.

Hannigan was familiar with H.N.’s treatment. He confirmed the diagnosis of brain death. Hannigan believed H.N. suffered from “Tin Ear Syndrome,” which may have been bilateral. The relatively small size of the bruises on her ears did not make them insignificant. The impact would rotate the skull so it would not fracture. However, it would cause injury. In Hannigan’s opinion, the extent of the force shown on the videotape could not have caused the injuries which resulted. Hannigan admitted severe shaking alone could have caused the injuries, but that was not probable.

Petra Warren, a family practice specialist, stated she was H.N.’s doctor. She was called to the hospital on January 11, 1988. Warren did not believe the left ear bruising indicated H.N. had received a blow to the head. However, it occurred to her that H.N. might have been hit. H.N.’s injuries were not inconsistent with a severe blow to the head, nor were they inconsistent with shaking.

Edmond Donoghue, a forensic pathologist, studied the records in the instant case. H.N.’s post-operative reports indicate she was cyanotic and had clotting problems. H.N. had DIG when she entered the hospital. The bruises on her left ear were a manifestation of blood disorders. Donoghue became familiar with “Tin Ear Syndrome” in connection with this case. He did not think a 70-pound blow or shaking would cause trivial bruising. Donaghue believed H.N. died from being shaken. The shaking demonstrated by defendant on the videotape could have caused the injuries.

Defendant argues he was not proved guilty beyond a reasonable doubt because the evidence was circumstantial and the State’s experts admitted the injuries could have been caused by shaking. Defendant contends the proof was insufficient that his actions were “knowing” if injury resulted from shaking alone. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In assessing a reasonable doubt argument, the reviewing court does not retry the defendant. (Collins, 106 Ill. 2d 237, 478 N.E.2d 267.) The reviewing court must review the evidence in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d 237, 478 N.E.2d 267; People v. Pace (1987), 163 Ill. App. 3d 1012, 517 N.E.2d 299; People v. Whitlock (1988), 174 Ill. App. 3d 749, 528 N.E.2d 1371.) Determination of credibility of witnesses is a jury function. (Collins, 106 Ill. 2d 237, 478 N.E.2d 267; People v. Johnson (1988), 170 Ill. App. 3d 828, 525 N.E.2d 546.) A jury may accept or reject an expert's testimony. A jury may also disregard an expert’s conclusion. (People v. Grice (1984), 121 Ill. App. 3d 567, 459 N.E.2d 1122.) A conflict between experts does not necessitate a finding that the evidence was insufficient to support a conviction. People v. Hendricks (1986), 145 Ill. App. 3d 71, 97, 495 N.E.2d 85, 103.

Meinzen and Rossi testified that H.N. received a blow to the left side of her head, injuring her brain, and causing her eventual death. Both based their opinions on the bruising to that ear, the CAT scan, which initially showed a large amount of swelling on the right side, and H.N.’s physical symptoms of increasing pressure on one side of the brain, then increasing pressure on all sides of the brain. Both admitted, however, that shaking could possibly have caused the brain injury. Hannigan stated H.N. was hit on the left and possibly on the right ears. The blow or blows plus the rotation of her head combined to effect the brain injury.

Warren testified she did not believe ear bruises were significant enough to indicate a blow to the head. She noted H.N.’s injuries were not inconsistent with shaking, nor were they inconsistent with a severe blow. Donoghue testified the bruises were caused by bloodclotting disorders. He also thought the bruises were a manifestation of the failure of H.N.’s vascular system. In his opinion, H.N.’s injuries were caused by shaking.

Immesoete stated on direct examination that shaking caused the brain injury which led to H.N.’s death. He could not rule out a blow to the side of the head. In rebuttal, Immesoete stated that either or both could have caused the trauma.

The inability of the State’s experts to totally rule out shaking or a combination of a blow and shaking as the cause of the brain injury does not create a reasonable doubt. The jury could properly consider the facts upon which the experts based their opinions and determine whom to believe. The jury could have concluded Rossi and Meinzen were more believable. An expert’s opinion need not be absolutely certain to be believable. Additionally, defendant was charged with various offenses based upon “shaking and hitting” the victim. The jury could have determined that both occurred and that, under the circumstances of the case, such conduct indicated a knowing mental state on defendant’s part.

Defendant next argues the trial court erred in refusing to define the term “knowingly.” Defendant contends questions submitted by the jury to the court evidenced the jury’s confusion about the mental state. Therefore, defendant contends the court erred in refusing to instruct the jury. The trial court instructed the jury on first degree murder and aggravated battery. Both instructions stated defendant had to “knowingly” hit or shake the victim. The court instructed the jury on involuntary manslaughter and that involuntary manslaughter applied to counts I and II.

While deliberating the jury sent three questions to the court. Question one requested a definition of “battery,” which was given. In question two, the jury indicated a split existed among them. The jury asked whether an involuntary manslaughter conviction ruled out an aggravated battery conviction. The court instructed the jury to continue deliberating. Defense counsel agreed with this instruction.

The next day the jury submitted this question:

“Can we legally reach a verdict of Involuntary Manslaughter on either count I or count II and also reach a guilty verdict on count III and count IV?” (Emphasis in original.)

The trial court told the jury that verdicts of guilty of involuntary manslaughter to either count I or II and guilty to either count III or IV would be inconsistent, as one involves reckless acts and the other knowing acts. The court then told the jury which verdict combinations would be consistent.

Ordinarily, a jury need not be instructed on the term “knowingly” because it has a plain meaning within the jury’s common knowledge. (People v. Powell (1987), 159 Ill. App. 3d 1005, 512 N.E.2d 1364.) However, where the jury raises an explicit question on a point of law arising from facts about which there is doubt or confusion, the court should attempt to clarify the issue in the minds of the jury members. (People v. Doe (1988), 175 Ill. App. 3d 371, 529 N.E.2d 980; People v. Brouder (1988), 168 Ill. App. 3d 938, 523 N.E.2d 100.) In Brouder, the jury stated it was confused about the term “knowingly resistance [s-ic].” (168 Ill. App. 3d at 946.) It specifically asked the court twice to define “knowingly.” The trial court told the jury to continue deliberating. The appellate court held that this was reversible error as the court had a duty to reinstruct on any question of law giving rise to doubt or confusion.

In the instant case, the jury did not specifically request an instruction on the term “knowingly.” Therefore, Brouder does not control. Additionally, the jury questions indicated a split of belief existed among the jury about whether defendant had acted knowingly or recklessly. The jury was evaluating its options given the split. Contrary to defendant’s argument on appeal, asking whether an involuntary manslaughter conviction “ruled out” an aggravated battery conviction indicates the jury grasped the distinction between knowing conduct and reckless conduct. The trial court did not err in refusing to instruct the jury on the definition of “knowing conduct.” Powell, 159 Ill. App. 3d 1005, 512 N.E.2d 1364.

Defendant next argues that under the facts of this case the jury should have been instructed that involuntary manslaughter is an included offense of felony murder based upon aggravated battery. Defendant argues this would have allowed the jury to find he acted recklessly rather than knowingly. The State argues that no independent mental state is necessary to convict a defendant of felony murder, and involuntary manslaughter is not an included offense.

An included offense is an offense “which is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 2— 9(a).) Section 9 — 1(a)(3) of the Criminal Code of 1961 (Code) provides that a person who kills another commits first degree murder if, in performing the acts which cause the death, he is committing or attempting to commit a forcible felony. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3).) By definition, the term “forcible felony” includes aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 8.) Aggravated battery is defined as “intentionally or knowingly causpng] great bodily harm, or permanent disability or disfigurement” in the course of a battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a).) Conviction for felony murder does not require proof of an independent mental state. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3); see also Illinois Pattern Jury Instructions, Criminal, No. 7.02 (1968).) Technically therefore, involuntary manslaughter, which involves a reckless mental state, cannot be an included offense of felony murder. See People v. Ellis (1981), 93 Ill. App. 3d 981, 418 N.E.2d 88; People v. Weathers (1974), 18 Ill. App. 3d 338, 309 N.E.2d 795; contra People v. Golden (1975), 29 Ill. App. 3d 502, 331 N.E.2d 134.

In Ellis, which followed Weathers, the defendant argued the court erred in refusing to instruct the jury on involuntary manslaughter as an included offense of felony murder. The court stated no mental state was necessary for felony murder; therefore, it is impossible for one committing a homicide during the course of a forcible felony to be guilty of manslaughter. (Ellis, 93 Ill. App. 3d 981, 418 N.E.2d 88.) A death in the course of a forcible felony is deemed murder to deter the causing of death in these circumstances. Even an “accidental” death in the course of a felony is deemed murder. (See Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments — 1961, at 19 (Smith-Hurd 1979).) Instructing on involuntary manslaughter, thus building in recklessness as a mental state, would defeat the purpose of the statute and render felony murder based upon knowing aggravated battery identical to murder as charged in section 9 — 1(a)(2) of the Criminal Code of 1961. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2).

However, it requires proof of all of the elements of the predicate felony. (People v. Land (1988), 169 Ill. App. 3d 342, 523 N.E.2d 711.) The predicate felony must involve knowing or intentional conduct. (Land, 169 Ill. App. 3d 342, 523 N.E.2d 711.) Involuntary manslaughter involves a reckless mental state. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a); Land, 169 Ill. App. 3d at 355, 523 N.E.2d at 718.

Defendant argues the jury should have been allowed an opportunity to find he acted with a less culpable mental state on counts III and IV. However, here, defendant could not by definition have recklessly committed aggravated battery. If the jury determined defendant acted recklessly, it would have had to return a not guilty verdict on both felony murder and aggravated battery. Therefore, the jury could have considered recklessness as a mental state in conjunction with counts I and II and rejected it. However, a recklessness verdict on the felony murder count would have negated the mental state necessary to find defendant committed the predicate felony for felony murder.

Defendant next argues the verdicts of not guilty of first degree murder as charged in count II and guilty of two counts of first degree murder based upon aggravated battery and aggravated battery of a child are legally inconsistent. He maintains the mental state is the same for each offense. Therefore, an acquittal of knowingly creating a strong probability of death or great bodily harm necessarily is legally inconsistent with conviction of engaging in conduct while knowing it would cause great bodily harm. Defendant contends the felony murder convictions must be reversed.

Count II charged defendant with murder pursuant to section 9— 1(a)(2) of the Code. Section 9 — 1(a)(2) of the Code states that a person commits first degree murder if, in performing acts which cause death, he “knows that such acts create a strong probability of death or great bodily harm to that individual or another.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2).) The jury was instructed that to sustain the charge as to count II, the State must prove, “first, that the defendant performed the acts which caused the death of [H.N.]” and “second, that when the defendant did so, he knew that his acts created a strong probability of death or great bodily harm to [H.N.].”

Counts III and IV charged defendant with first degree murder pursuant to section 9 — 1(a)(3) of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3).) Defendant’s conviction of felony murder pursuant to count IV is not at issue in this appeal since no sentence was entered upon it. The jury was instructed that to sustain the charge under count III, the State must prove:

“First, that the defendant performed the acts which caused the death of [H.N.]” and "second, that when the defendant did so, he was committing the offense of aggravated battery.”

The jury was instructed that to sustain the charge of aggravated battery, it must find that “defendant knowingly caused great bodily harm to H.N.”

Legally inconsistent verdicts are verdicts where the same essential element of each crime is found to exist and not to exist and both crimes arise out of the same set of facts. (People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233; People v. Jones (1988), 174 Ill. App. 3d 737, 528 N.E.2d 1363.) Legally inconsistent verdicts are invalid and the convictions must be reversed. (People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335.) However, a jury may acquit a defendant on one or more counts on a multicount indictment in the belief that the count on which it convicted the defendant will provide sufficient punishment. People v. Robinson (1986), 147 Ill. App. 3d 131, 497 N.E.2d 862.

Defendant asserts that first degree murder as charged in count II was a different crime than first degree murder as charged in count III. Section 9 — 1 of the Code presents several different theories which constitute the single offense of first degree murder. (People v. Stalions (1986), 139 Ill. App. 3d 1033, 488 N.E.2d 297; see also Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments — 1961, at 12-20 (Smith-Hurd 1979).) Separate offenses of first degree murder were not charged in the instant case. The cases which defendant relies upon are those on which the acquittal of one crime is held legally inconsistent with the conviction of a different crime rather than the same crime. (See Hoffer, 106 Ill. 2d 186, 478 N.E.2d 335; People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.) The same considerations do not apply when only one offense is charged in various fashions and the jury convicts defendant of some charges but not all of the counts. (See Stalions, 139 Ill. App. 3d 1033, 488 N.E.2d 297.) In such a case, the jury may acquit defendant on one or more of the counts on the belief that the count of which it convicted him provides sufficient punishment. Robinson, 147 Ill. App. 3d 131, 497 N.E.2d 862.

Defendant next argues Hannigan should not have been permitted to testify about “Tin Ear Syndrome” as an explanation for the symptoms displayed by H.N. Defendant contends the theory was not generally accepted in the medical profession. Therefore, it did not meet the People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070, criteria for admissibility. Prior to testifying before the jury, Hannigan testified he was a pediatric neurosurgeon and professor of neurosurgery. The focus of his work for the prior four years had been pediatric trauma cases. In 1987, he published an article called “Tin Ear Syndrome, Rotational Acceleration in Pediatric Head Injuries,” in Pediatrics, a medical journal. Dr. Hale Regate, a neurosurgeon, had presented an abstract at a symposium. Regate agreed with Hannigan’s conclusions. The abstract was in the process of publication. Hannigan stated he studied three cases involving similar injuries and formulated a theory from these cases. There are many areas of dispute within “Shaken Child Syndrome.” “Tin Ear Syndrome” fills in gaps.

An individual will be allowed to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and his testimony will assist the trier of fact. In rendering an opinion, the expert must rely on scientific theories which have gained general acceptance in the field. People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569 (pink tooth theory on cause of death was admissible); Baynes, 88 Ill. 2d 225, 430 N.E.2d 1070 (results of polygraph test inadmissible); Frye v. United States (D.C. Cir. 1923), 293 F. 1013, 1014 (lie detector test inadmissible).

Some courts have applied Frye and Baynes to determine the admissibility of all scientific evidence, regardless of its type. (People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733.) Other courts, however, have relaxed the restrictions in Frye. In United States v. Stifel (6th Cir. 1970), 433 F.2d 431, the court admitted the results of neutron activation analysis. It noted the procedure was new but it found the procedure was also reliable. The court noted the decision as to admissibility was within the trial court’s discretion, disputes about the methodology used went to the weight, the newness alone did not make the technique inadmissible, and every theory must have its first day in court.

In People v. Milone (1976), 43 Ill. App. 3d 385, 356 N.E.2d 1350, the court admitted testimony about bite-mark identification. Milone argued the technique had not gained general acceptance in the scientific community. The court noted that Frye and similarly Baynes dealt with expert testimony based upon results gained- from an intermediate mechanical test. It found where direct observation was involved, as long as the methodology was proved, the testimony was admissible. See also People v. Jennings (1911), 252 Ill. 534, 96 N.E. 1077; Hendricks, 145 Ill. App. 3d 71, 495 N.E.2d 85; Columbo, 118 Ill. App. 3d 882, 455 N.E.2d 733; contra People v. Ferguson (1988), 172 Ill. App. 3d 1, 526 N.E.2d 525.

Here, Hannigan’s theory was new. However, one other person had presented a discussion on the theory at a symposium and an abstract was in the process of publication. Hannigan’s paper had been published. The symptoms he observed and tests he made to reach his conclusion were based upon methods accepted by everyone. The clinical examination of the subjects and methodology was not new. Finally, the theory was an outgrowth of anomalies found in “Shaken Child Syndrome,” which is widely written about. No error occurred in admitting the testimony.

For the above reasons, we affirm the trial court.

Affirmed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    TERRY CROSS et al., Plaintiffs-Appellees, v. COUNTRY COMPANIES, Defendant-Appellant (Dennis Moehring et al., Defendants-Appellees).
    Fourth District
    No. 4 — 89—0384
    Opinion filed September 28, 1989.

      Frederic L. Kenney, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellant.
    Donald K. Birner, of Pekin, for appellees Terry Cross and Jenny Cross.
    John R. Gehlbach Law Office, of Lincoln, for appellees Dennis Moehring and Brenda Moehring.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant Country Companies appeals an interlocutory order denying its motion to dismiss. That motion contended that a claim for loss of consortium was not covered by its insurance policy because the per person policy limit had been paid to the plaintiffs as a result of settlement negotiations. The trial court disagreed.

We reverse.

Defendant Country Companies issued a motor vehicle insurance policy to defendant Dennis Moehring, whose wife was involved in an automobile accident with plaintiff Terry Cross when this insurance policy was in effect. The parties involved agreed that the insurance company would pay Terry $50,000 in exchange for a covenant not to sue. The insurance policy limited the company’s bodily injury liability to $50,000 per person and $100,000 per occurrence.

Plaintiffs Terry Cross and Jenny Cross filed a complaint for declaratory judgment against all of the defendants, alleging that they are additionally liable for a loss of consortium claim. In response, Country Companies filed a motion to dismiss the complaint for declaratory judgment with prejudice, claiming that the loss of consortium claim was limited by the $50,000-per-person ceiling of the policy. Defendants also argued that this claim was precluded because the insurer had previously paid the plaintiffs $50,000 in settlement.

The trial court denied Country Companies’ motion to dismiss, but granted its request under Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)) to make a finding that its order denying the motion “involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” In the exercise of our discretion, we accepted the defendant’s appeal from the order denying the motion to dismiss. At issue is whether defendant’s insurance company must pay loss of consortium damages when the “per person” liability limit under the policy had already been paid to the plaintiff who suffered personal injuries in the automobile accident.

The automobile insurance policy in question provides indemnity of up to $50,000 for each person who suffered a bodily injury as a result of an accident with the insured. Specifically, section 1 of the policy states the following:

“If you have paid for coverage under Section 1 ***, we promise to pay all sums in behalf of an insured which the insured becomes legally obligated to pay as damages because of:
1. bodily injury (Coverage A), including death resulting from that bodily injury, sustained by any person; I
2. damage to or destruction of property (Coverage B), including loss of use.
The bodily injury or property damage must be caused by an accident resulting from the ownership, maintenance or use of an insured vehicle, including loading and unloading, or of any nonowned vehicle. Under Coverages A and B, damages include required care, loss of services, loss of use and death.”

Another section of the policy limits the amount recoverable. However, under “Limits of Liability,” paragraph 2(a) of the policy provides:

“The bodily injury liability limit for ‘each person’ is the maximum amount we will pay for bodily injury sustained by one person in any one accident. That maximum amount includes any claim of other persons for damages arising out of that bodily injury. The figure listed is the most we will pay for any person in any one accident regardless of the number of insureds, claims made, insured vehicles or premiums shown on the declarations page.”

A one-page addendum to the policy sets forth the $50,000 “per person” liability limit, as well as the $100,000 “per occurrence” maximum.

The parties cite no case which resolves whether the loss of consortium is a bodily injury. Instead, whether this type of claim is covered depends upon the particular policy language at issue.

In a case involving an insurance policy defining “bodily injury” as “sickness, disease, death or loss of services,” one court has concluded that the plaintiff’s loss of consortium claim was a separate bodily injury worthy of coverage. (See Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168.) However, indemnification for loss of consortium was denied in several other cases in which the policy language failed to define loss of consortium as a bodily injury. See Ravenswood Hospital v. Maryland Casualty Co. (1917), 280 Ill. 103, 109, 117 N.E. 485, 487-88 (indemnifying for damages on account of bodily injuries or death); Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 224-25, 514 N.E.2d 214, 215 (“bodily injury” includes sickness, disease, or death); Gass v. Carducci (1964), 52 Ill. App. 2d 394, 402-02a, 202 N.E.2d 73, 76-77 (fails to define bodily injury); Guetter v. Hooker Glass & Paint Manufacturing Co. (1964), 50 Ill. App. 2d 164, 171-73, 200 N.E.2d 52, 55-56 (damages include costs for care and loss of services because of bodily injury); Oda v. Highway Insurance Co. (1963), 44 Ill. App. 2d 235, 255-56, 194 N.E.2d 489, 500 (bodily injury, sickness, or disease, including death, is covered).

The defendant’s automobile insurance policy covers “bodily injury” (coverage A), including death resulting from that “bodily injury,” but fails to explicitly define “bodily injury.” The policy later explains that under coverage A, “damages include required care, loss of services, loss of use and death.” We find that the language describing the damages does not define loss of services as a separate bodily injury but, instead, explains the extent of liability coverage.

Furthermore, the “Limits of Liability” section of the policy provides that the maximum “per person” amount includes all claims for damages arising out of that bodily injury by the person injured as well as any other claimant. Similar language in the Ravenswood Hospital decision led the court to decide that the plaintiff’s loss of consortium claim was not independent of the personal injury claim of his spouse. Ravenswood Hospital, 280 Ill. at 109, 117 N.E. at 485 (“damages on account of injury to or death of one person is limited to $5,000 and subject to the same limit for each person”).

We find that the policy language of the instant case is similar to that in Ravenswood Hospital and conclude that the clear intent of the policy was to limit loss of consortium claims to the personally injured “per person” maximum. Since the defendant’s insurance company has paid the plaintiffs the maximum “per person” amount, no further recovery for loss of consortium will be allowed. The trial court’s denial of defendant’s motion to dismiss is reversed.

For the reasons stated, the judgment of the circuit court is reversed.

Reversed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE LUND

text:
    THE VILLAGE OF GOODFIELD, Plaintiff-Appellant, v. JAN JAMISON, Defendant-Appellee.
    Fourth District
    No. 4 — 88—0915
    Opinion filed September 28, 1989.

      Frederick G. Hoffman, Craig W. Stensland, and Frank M. Calvert, all of Thomas & Hinshaw, Culbertson, of Peoria, for appellant.
    John Naylor, of Naylor, Mueller & Willard, P.C., of Bloomington, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On July 22, 1988, the Village of Goodfield, plaintiff, filed a complaint in the circuit court of Woodford County, seeking to permanently enjoin defendant Jan Jamison from operating a business located within one mile of plaintiff’s corporate limits. On December 12, the court held plaintiff had failed to establish, by its burden of proof, that the proposed facility is offensive or unwholesome, or would create either a statutory or common law nuisance. Plaintiff now appeals.

Defendant intended to build a hog transfer station on Route 117, approximately one-half mile north and east of the corporate limits of plaintiff. The purpose of the transfer station was to allow local hog producers to bring their hogs to the station. That same day, when enough hogs to transport have been collected, defendant will have them taken to the market.

As grounds for its injunction, plaintiff alleged that the hog transfer station would result in a repugnant odor, decrease plaintiff’s property values, limit commercial and residential growth in the area, correspondingly lowering business and tax revenues, increase truck traffic, increase noise, and lower the quality of life in the village, which would all work to create irreparable harm to plaintiff’s residents. On October 14, 1988, a hearing was conducted. The court earlier determined the burden would be on plaintiff to prove defendant’s business was a prospective nuisance.

Defendant was called as an adverse witness. He works as a livestock broker and dealer, with his offices being located in the Stockyard Exchange Building in Peoria. He designed the plans for the facility himself. It is designed to handle a capacity of about 600 hogs per day. Local producers will bring the hogs in on small trucks, and the hogs will be leaving on larger trucks. He explained the purpose of the station was to accumulate and disburse hogs as rapidly as possible. Once they receive a semitrailer load, which is around 180 to 220 head, a truck will be called, and they will be transferred. He plans to operate five days per week, with a very limited operation on Saturdays. The hours would be approximately 6 a.m. to 8 p.m.

He explained the facility, as planned, is 176 feet by 66 feet. It will have a concrete impermeable pit located underneath it measuring 127 feet by 6 feet by 5 feet. The pit will have a concrete cap with a four-inch mouth. Each day, the waste will be washed down into the pit. He believes this will require 200 to 600 gallons of water. He does not intend to wash the pigs down while they are on the property or once they are on the trucks. He believes he will only have to clean the pit twice per year. However, he would drain it more often, if necessary. He thinks, since the pit will be mainly water, the only agitation necessary will be accomplished by the pumping of the pit. He has two local customers who have asked about purchasing the pumped-out fluid for fertilizer. The building’s only ventilators will be located in the roof to allow the escape of heat. The design of the building would allow for the loading and unloading of hogs on a concrete ramp which comes directly to the building. The design also keeps any waste materials from escaping the building during loading.

It is possible that sometimes he may have to keep 20 to 30 pigs overnight. He will have a very limited amount of feed for those times. It is also possible a pig may die, in which case he would call a rendering company. However, in Peoria last year, they dealt with over 28,000 pigs and not one died.

This building is based on his ideas from 25 years of experience in the field. He read the materials the Environmental Protection Agency (EPA) sent him. A facility of this type has not been built in Illinois. It is his opinion, based on his experience, that there would be no odor to the village.

Originally, he sought to build his business in northern Woodford County, but the zoning board would not change the zoning of the proposed sight. After he found the present location, he received a permit from the county zoning administrator. At this point, all construction has ceased pending resolution of this lawsuit.

Dr. Richard Vetter testified next. He is currently the director of research and development with A.O. Smith-Harvestore Products concerning animal production, feeding, and waste handling and storage. He was a professor at Iowa State for 16 years. He has visited hundreds of swine production facilities during his career.

He stated that pig waste is a higher odor-producing waste than that of other livestock. His experience is that swine facilities have an odor, and he has been at some that can be smelled more than one-half mile away. They also have, based upon the management of the facility, insects and rodents. He has reviewed the plans for the facility. He calculated the pit could hold 28,500 gallons. Based on an assumption of using 300 gallons of water per day, the pit would have to be drained three or four times per year. He also believes the pit, as designed, will be difficult to agitate. Without proper agitation, the solids will remain on the bottom. Also, the time of agitating is when the odor is the worst. A pit of this type can leak but, with proper construction, the probability of this can be kept low.

He explained it is desirous to set a facility up as far as feasible from a community because odors can travel some distance. However, the distance they can travel is very conditional upon the wind direction, humidity, time of year, and temperature. The American Society of Agricultural Engineers (ASAE) suggests a minimum distance of one mile. Assuming that there are westerly prevailing winds, which travel from southwest to northeast, the probability is the smell would be greater in the area to the east. It would also be stronger during the summer.

On cross-examination, he explained his main concern for odor was during the time of agitation. If the wind was blowing away from plaintiff, it would receive no odor. He also acknowledged most of his experience is with hog production facilities. These have more feed and waste present, which leads to more problems with mice and flies. This problem can be kept to a minimum with good husbandry techniques.

The next witness was Eric Ackerman, who has been employed by the Illinois EPA for 10 years. He is also a licensed professional engineer. His areas of responsibilities are livestock waste management and agricultural chemical outlets.

Most complaints he receives concerning swine facilities are about odor. He has visited in excess of 300 facilities, and some have been similar in design to defendant’s. In each facility, there was an odor and also noise. It is his opinion that during on and off loading, the residents of plaintiff could hear the pigs. The EPA has regulations concerning this type of facility, which provide that no livestock operation should be in close proximity with populated areas. He relies on the guidelines of the ASAE which suggest a one-mile minimum. The EPA also has regulations which require the waste pit be able to hold 120 days of waste. His calculations show the proposed pit has a storage capacity of 70 to 75 days.

There is also a risk involving the pit storage method because the waste, as it breaks down, will form ammonia, methane, and hydrogen sulfide. When the pit is agitated, these gases are released and can create a dangerous situation. Some farmers have been killed by the gases being released from the pit. He cannot tell if this pit will leak. He has been around some that have. In his experience, the odor from swine facilities can travel in excess of one mile, and there are problems with rodents and flies. His main concern with odor in this case is based on the liquid storage of waste. Facilities with dry storage, by using straw and bedding, have less odor. It is his opinion that the designs for the facility violate EPA rules by being too close to town and not having 120 days’ waste storage. He did explain on cross-examination that defendant does not need a permit to construct or operate the facility.

Plaintiff’s evidence also established that the business is one-half mile north of plaintiff and approximately six-tenths of a mile northwest of Timberline Campgrounds and the Conklin Players Dinner Theater. Approximately 1,000 people per year use the campground facilities. The theater has a dinner theater which runs 50 weeks per year, a children’s theater which operates outdoors 8 to 10 weeks during the summer, and a bed and breakfast operation. Also, the logical place for plaintiff’s expansion, due to the fact Interstate 74 is on the south, would be to the north in defendant’s direction. On July 21, 1988, the village board passed a resolution opposing the facility because it was a nuisance.

A local hog producer who would use the facility stated, in his opinion, the noise and odor would carry to plaintiff. Several local property owners, including those of the campground and the dinner theater, testified concerning their concern over noise and odor.

Finally, a licensed real estate appraiser testified that in his experience, the presence of odors lowers property values 5% to 25%. It was his opinion that the loss of value to plaintiff’s property, due to defendant’s business, would be 5% to 12%.

Gerald Morey, defendant’s first witness, is a hog buyer for a company in Michigan and has been employed in this field for 15 years. He has visited over 50 hog transfer stations, and 85% to 90% of these are located either in or within one-half mile of a town. After reviewing the plans, he believed defendant’s facility was above average from a standpoint of odor and sanitation. It is his opinion the odor would not reach plaintiff.

William Dwine was a hog buyer prior to his retirement. He has visited over 200 hog transfer stations over his career. Of these, 80% to 85% are either in or adjoining a town. It is his opinion, after viewing the blueprints and the site, that no odors would travel to plaintiff.

Ray Crammond is a civil and agricultural engineer registered in Iowa, Illinois, and Florida. A majority of his work is in determining suitable locations for waste facilities. It is his opinion defendant’s site is an appropriate location for such a facility because it is on a paved road, which keeps dust to a minimum; it has electricity available; and it has its own well. It is his experience that 80% to 85% of hog transfer stations are in or within one-half mile of towns, and that they coexist with residential buildings nearby.

In reaching his opinions, he relied on traffic flow information from the Illinois Department of Transportation, which showed 12,500 vehicles per day went through an intersection in plaintiff, and 3,800 per day passed the site of the proposed facility. Accordingly, he does not believe there will be an increased traffic problem since there will be, at most, two to three semi-trucks and 20 to 30 smaller trucks. Also, records from the Illinois State Climatologist reveal the prevailing winds for 10 months are from the south. Only in February and March is it from the west and northwest. It’s his opinion there will be no odor problem. It is also his opinion this facility will not be a nuisance. He is aware of the standards of the ASAE and, in fact, serves on one of its boards. He believes this standard is meant to apply to a livestock producing facility and is inapplicable to the current situation. He did acknowledge that animal waste may fall off the transporting vehicles.

Robert Weers is the zoning administrator of Woodford County. He testified that in 1974, the parcel in which the property in question is located had its zoning changed from agricultural to commercial. At the time, hearings were held in the village concerning this change. There was never any restriction requested on the use of the land. Kenneth Coulter, owner of a farm adjacent to defendant, stated he has no objection to the transfer station. Finally, defendant testified he is willing to alter his plans to meet the earlier stated objections.

The court determined plaintiff failed to meet its burden of proof. Plaintiff appeals, alleging (1) the court improperly placed the burden on it rather than defendant; and (2) even if the burden was properly placed, the court’s decision was against the manifest weight of the evidence. We affirm.

Initially, plaintiff maintains the court erred in placing the burden of proof on it. It believes a presumption exists that a municipality’s determination that certain conduct is a nuisance is valid, and the burden is properly placed on the other party to show this determination is incorrect.

Section 11 — 60—2 of the Illinois Municipal Code (Code) provides:

“The corporate authorities of each municipality may define, prevent, and abate nuisances.” (Ill. Rev. Stat. 1987, ch. 24, par. 11-60-2.)

As early as 1883, it was recognized that, while a municipality could not pass an ordinance declaring something a nuisance when it is clearly not so:

“[I]n doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question.” (North Chicago City Ry. Co. v. Town of Lake View (1882), 105 Ill. 207, 212.)

More recent cases involving section 11 — 60—2 of the Code have relied on this holding in concluding that a municipality has authority to regulate, as a nuisance, anything in which there could be an honest difference of opinion and, in questionable cases, the municipality’s decision will be conclusive unless its judgment and use of discretion are clearly erroneous. (Village of Caseyville v. Cunningham (1985), 137 Ill. App. 3d 186, 189-90, 484 N.E.2d 499, 501; Village of Riverwoods v. Untermyer (1977), 54 Ill. App. 3d 816, 822, 369 N.E.2d 1385, 1390.) Further, section 11 — 60—2 gives municipalities the authority to prevent nuisances and, therefore, its police powers are not limited to those things which have already become nuisances, but extend to those things which may become a nuisance. Village of Carpentersville v. Fiala (1981), 98 Ill. App. 3d 1005, 1008, 425 N.E.2d 33, 36.

Thus, it is evident if defendant had selected a site within plaintiff’s corporate limits for the proposed business, then, pursuant to section 11 — 60—2, plaintiff could have properly declared defendant’s business a nuisance, and the burden of proof would have been on defendant. The question before us now is whether the provisions of the section can be applied to a business located one-half mile outside the municipality’s limits. Plaintiff argues the extraterritorial authority is provided by section 11 — 42—9 of the Code, which provides:

“The corporate authorities of each municipality may prohibit any offensive or unwholesome business or establishment within the municipality and within the distance of one mile beyond the municipal limits.” (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 42—9.)

It believes the provisions should be read together, and that the “offensive or unwholesome business” referred to in section 11 — 42—9 is analogous to the nuisance provisions of section 11 — 60—2. Accordingly, it believes the presumption in favor of legislative determinations contained in section 11 — 60—2 should be applicable to within the distance of one mile beyond the municipal limits.

The cardinal rule in statutory construction is to ascertain and give effect to the intent of the legislature. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175.) In determining the legislative intent, courts should first consider the statutory language. (Boykin, 94 Ill. 2d at 141, 445 N.E.2d at 1175.) If that language is clear, it will be given effect without resort to other aids of construction. (People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 433 N.E.2d 674, 677.) Cities, as creatures of the legislature, have no inherent powers and must rely on those expressly granted from the legislature. (Chicago Real Estate Board, v. City of Chicago (1967), 36 Ill. 2d 530, 537, 224 N.E.2d 793, 799; Barnard & Miller v. City of Chicago (1925), 316 Ill. 519, 522, 147 N.E. 384, 385.) Accordingly, statutes granting powers to municipal corporations are strictly construed, and any fair and reasonable doubt as to the power must be resolved against the municipality. Barnard, 316 Ill. at 522, 147 N.E. at 385.

In applying these principles, we conclude that section 11— 60 — 2 has no such extraterritorial impact. First, as noted, a municipality’s powers are to be strictly construed to those specifically given it. Here, the language of section 11 — 60—2 contains no specific extraterritorial authority. Second, the legislative intent as to the scope of this authority to declare a nuisance is further clarified in section 221 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1987, ch. 100½, par. 26), which reads, in relevant part:

“Nothing in this Section shall be construed to prevent the corporate authorities of any city, village, or incorporated town, or the county board of any county, from declaring what shall be nuisances, and abating them within their limits.”

Since this section clearly evidences a legislative intent to limit a municipality’s authority to declare a nuisance to its corporate limits, and section 11 — 60—2 does not contain any specific language to the contrary, it is apparent the asserted extraterritorial power does not exist.

Section 11 — 42—9 does not call for a contrary result. Since this section and section 11 — 60—2 were passed by the legislature at the same time, it is evident they were passed to perform separate functions and were not intended to be read together. In fact, section 11— 42 — 9, since it does authorize the municipality to proceed outside its corporate limits, cuts against plaintiff’s position. It establishes that the legislature clearly knew how to grant this authority and the fact it was not granted in section 11 — 60—2 leads to the conclusion the legislature did not intend for it to be there.

Therefore, we hold that a municipality’s authority, pursuant to section 11 — 60—2, to declare a nuisance, with the resulting burden of proof being placed upon the other party to establish this decision is clearly erroneous, ends at the municipality’s corporate limits. If a municipality wishes to proceed to abate an alleged nuisance outside those corporate limits, the burden of proof, as would normally be the case, is properly placed upon it.

Plaintiff next contends that the court’s determination in this case that defendant’s proposed business is not offensive or unwholesome, or a nuisance, is against the manifest weight of the evidence.

A party has a high burden in seeking a prospective injunction. Our supreme court in Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 26, 426 N.E.2d 824, 836, announced the standard by adopting the following language of Fink v. Board of Trustees (1966), 71 Ill. App. 2d 276, 281-82, 218 N.E.2d 240, 244:

“While, as a general proposition, an injunction will be granted only to restrain an actual, existing nuisance, a court of equity may enjoin a threatened or anticipated nuisance, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin. This is particularly true where the proof shows that the apprehension of material injury is well grounded upon a state of facts from which it appears that the danger is real and immediate. While care should be used in granting injunctions to avoid prospective injuries, there is no requirement that the court must wait until the injury occurs before granting relief.”

Thus, plaintiff’s burden is that it must clearly appear that there is a danger of a real and immediate injury occurring. Findings of fact made by courts in this regard will not be set aside unless they are contrary to the manifest weight of the evidence. Wilsonville, 86 Ill. 2d at 15, 426 N.E.2d at 831; John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 218, 367 N.E.2d 695, 698.

In the present case, plaintiff’s main concern seemed to be over the presence of odor and flies, which can be sufficiently bothersome to be subject to injunctive relief. (See, e.g., Woods v. Khan (1981), 95 Ill. App. 3d 1087, 420 N.E.2d 1028.) Plaintiff’s experts testified the odor would reach the village especially in the summer when the winds blow in its direction. In fact, Vetter assumed the prevailing wind would blow toward plaintiff. However, defendant presented testimony of two people familiar with many similar facilities, and both maintained no odor would reach the town. He also had testimony of his expert that the odor would not reach town and, in fact, that the prevailing wind for 10 months per year was in another direction. Even if plaintiff’s testimony is accepted, it was its expert’s opinion that the odor would only be bothersome the three or four times a year it was necessary to clean the tank.

In its complaint, plaintiff also complained about increased traffic, noise, flies, and pests. Plaintiff presented no evidence on traffic. On the other hand, defendant established 3,800 vehicles per day passed the proposed site, and 12,500 passed the busiest intersection in town. The increase in vehicles would be, at most, 3 semitrailer trucks and 20 to 30 farm trucks. This does not seem to be a large increase.

Concerning noise, plaintiff’s experts testified the animals could be heard during loading and unloading. Defendant presented evidence to the contrary. All the testimony concerning the flies and rodents was that proper husbandry would limit any problems.

Concerning the location, plaintiff points out that the local EPA agent believes the location is too close to town. Both its experts testified the ASAE guidelines suggest at least one mile separate the facility from the town. However, this was also contested by defendant’s expert, who maintained these guidelines are for hog producers and not hog transfer stations.

Plaintiff also argues the evidence supports a finding that the location will have an adverse impact on its people and businesses. However, the testimony as to the negative impact on Timberline Campgrounds and the Conklin Players Dinner Theater is highly speculative and based on the belief of the presence of the offending odor. Yet, the likelihood of the presence of any odor is highly contested.

It is uncontested that the hog-transporting trucks may smell as they pass through town and may lose some waste material on the road. Also, it is uncontradicted that property values will decrease, but the fact property values decrease alone will not entitle the landowners to injunctive relief. Bauman v. Piser Undertakers Co. (1962), 34 Ill. App. 2d 145, 150, 180 N.E.2d 705, 708-09.

In Wilsonville, the supreme court, in discussing the likelihood of harm that is necessary to support the granting of a prospective injunction, stated:

“ ‘[Ojne distinguishing feature of equitable relief is that it may be granted upon the threat of harm which has not yet occurred. The defendant may be restrained from entering upon an activity where it is highly probable that it will lead to a nuisance, although if the possibility is merely uncertain or contingent he may be left to his remedy after the nuisance has occurred.’ ” Wilsonville, 86 Ill. 2d at 26, 426 N.E.2d at 836, quoting W. Prosser, Torts §90, at 603 (4th ed. 1971).

In the present case, the trial court’s determination was not against the manifest weight of the evidence. Accordingly, plaintiff’s request for an injunction was properly denied. If defendant persists in building his facility, and plaintiff’s worst fears come true, it can seek an appropriate remedy at that time.

Affirmed.

SPITZ and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNA JEAN LUALLEN, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0220
    Opinion filed September 28, 1989.
    James E. Swanson and Joseph M. Gibson, both of Peoria, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On November 17, 1988, after a jury was impaneled for trial involving defendant Donna Luallen, the circuit court of Morgan County declared a mistrial and dismissed the charge of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501), finding the State had violated defendant’s due process rights by losing a valuable piece of evidence. On December 12, 1988, pursuant to the State’s motion to reconsider, the court vacated its previous order and reinstated the criminal charge. Defendant now appeals, alleging this prosecution is now barred by the double jeopardy clause of the fifth amendment. We disagree and affirm.

After her jury was impaneled, it came to light that the State could not locate the videotape taken of defendant shortly after her arrest. Defendant, arguing this evidence was vital to her case, moved for a dismissal of the charges. The court, even though it found the evidence was missing through no intentional conduct on the part of the State, declared a mistrial and dismissed the charge.

Eight days later, the United States Supreme Court handed down its decision in Arizona v. Youngblood (1988), 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333, 337, where it held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Accordingly, the State, within 30 days of the original decision, filed a motion to reconsider based on Youngblood. The court granted the motion and reinstated the charges.

Defendant’s sole argument is that the State is barred by the doctrine of double jeopardy from prosecuting the charges. She argues that the court did not intend to declare a mistrial, which is subject to retrial, but actually dismissed the charges, which terminates the case. Further, she argues since the ground for dismissal is not contained in section 114 — 1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1), it is not subject to appeal by the State under Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). Accordingly, she argues that the court’s decision essentially “amounted to an acquittal in its substantive effect.” However, defendant’s position is mistaken.

First, and foremost, the United States Supreme Court in United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187, definitively answered this question contrary to defendant’s position. There, the defendant moved before and during trial to have the case dismissed for preindictment delay. At the close of all the evidence, the trial court granted the motion. On appeal, the appellate court concluded any further prosecution of defendant was barred by the double jeopardy clause of the fifth amendment. The Supreme Court disagreed and reversed. It concluded that when a defendant has his case dismissed in midtrial, pursuant to his motion, he has been “neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been impaneled to try him.” (Scott, 437 U.S. at 99, 57 L. Ed. 2d at 79, 98 S. Ct. at 2198.) Accordingly, the Court concluded that where a defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, the double jeopardy clause does not apply. Scott, 437 U.S. at 101, 57 L. Ed. 2d at 80, 98 S. Ct. at 2198.

The original dismissal in the present case was based, not on a resolution of defendant’s guilt or innocence, but on a perceived due process problem concerning preservation of evidence. Thus, this case falls squarely under the ambit of Scott, and the double jeopardy clause does not apply.

Defendant’s argument further suggests that the court was without power to reconsider its decision because it was a nonappealable order. This reasoning is similarly erroneous.

The State’s right to appeal is not limited, as defendant argues, to those grounds for dismissal contained in section 114 — 1 of the Code. Rather, the reference to section 114 — 1 in Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)) was intended to make clear that the State had a right to appeal from a dismissal for any of the grounds contained therein. (People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, 1246-47; People v. Love (1968), 39 Ill. 2d 436, 439, 235 N.E.2d 819, 821-22.) The State retained the right to appeal in any other case involving a judgment in which the substantive effect resulted in the dismissal of the case. (Lawson, 67 Ill. 2d at 455, 367 N.E.2d at 1247; Love, 39 Ill. 2d at 439-40, 235 N.E.2d at 822.) It is evident then the court’s original decision could have been appealed.

It is also established that in criminal, as well as civil matters, the circuit court is given the opportunity to reconsider final appealable judgments and orders within 30 days of their entry. (People v. Heil (1978), 71 Ill. 2d 458, 461, 376 N.E.2d 1002, 1003.) Therefore, it is apparent the court acted within its authority in reconsidering its original decision.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.