author: JUSTICE WOODWARD

text:
    RUTH McCRAY, Indiv. and as Special Adm’r of the Estate of Avery McCray, Deceased, Plaintiff-Appellant, v. SALAH UDDIN SHAMS et al., Defendants-Appellees.
    Second District
    No. 2—91—0423
    Opinion filed February 10, 1992.

      Patrick A. Salvi, Michael P. Sehostok, and Megan E. Chadwick, all of Law Offices of Patrick A. Salvi, of Waukegan, for appellant.
    Donald L. Sime, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Ruth McCray, both individually and as the special administrator of the estate of Avery McCray (Avery), deceased, filed a medical malpractice case against the defendant, Dr. Salah Uddin Shams, M.D., S.C. Following trial, the jury found for the defendant, who subsequently died. The executor of Dr. Shams’ estate was substituted as a party defendant. Plaintiff appeals from the jury’s verdict, raising the following issues: (1) whether the trial court erred in granting defendant’s motion in limine; (2) whether the trial court erred in limiting plaintiff’s cross-examination of one of defendant’s expert witnesses; and (3) whether the trial court erred in denying plaintiff’s motion for a new trial based upon defendant’s improper closing argument.

The facts of this case are for the most part undisputed. Dr. Shams, an internist, had been Avery McCray’s doctor since 1977. On February 17, 1988, the 49-year-old Avery was admitted to Victory Memorial Hospital. Dr. Shams examined him and took a history which included fever, diarrhea, stomach pains and an inability to hold even light food down for a period of five days. Avery also complained of numbness in his fingers and being chilly. Avery’s temperature was taken rectally and was 102.9. A CBC (complete blood count) was done at the time of his admission to the hospital which showed a shift to the left in his white blood count. Subsequent tests on February 18 and 19 also showed a shift to the left in his white blood count. Dr. Shams also ordered a stool sample which was negative for staph, salmonella and Campylobacter.

Dr. Shams initially diagnosed Avery as suffering from enterioco-litis (an inflammation of the intestine including the large bowel) and possible flu syndrome (virus in the gastrointestinal tract). He did not order a blood culture or consult with a specialist because he did not believe Avery was suffering from a bacterial infection, such as septicemia.

Between February 17 and 19, Avery continued to suffer from nausea, although it was controlled, first by medication and then by a tube into his stomach. He did not complain further of chills, and his vital signs were stable. His temperature continued to go down, and on February 20, 1988, it was 99.4, taken orally. He was given a shot of Demerol for pain. On the 20th, he ate lunch consisting of liquids, which he tolerated well. At 2:45 p.m., Avery was sitting up unassisted, appeared alert and had no complaints. At approximately 3:30 p.m., a nurse discovered Avery was not breathing and had no pulse. Attempts to resuscitate him failed, and he was pronounced dead.

Dr. U. Khin, a pathologist at Victory Memorial Hospital, performed an autopsy on Avery. Initially, he was unable to determine the cause of death. However, after working up a number of tissue slides, he concluded that Avery died from myocarditis, which occurs when the heart muscle is attacked by inflammatory cells. A second autopsy was performed by Dr. Eupil Choi, a pathologist employed by the Cook County medical examiner’s office. Dr. Choi determined the cause of death to be sepsis due to enteriocolitis.

At trial, plaintiff presented expert testimony by Dr. Stanley Ra-binowitz, board certified in internal medicine with a subspecialty in infectious diseases, and by Dr. Choi to support her theory that Dr. Shams failed to conform to the standards of medical care in his treatment of Avery in that he failed to order a blood culture which would have revealed the presence of a bacterial infection, i.e., sepsis, and failed to consult with a specialist in infectious diseases. As a result of Dr. Shams’ failure to so act, Avery died of sepsis, which if treated properly would not have caused his death. Defendant presented medical experts: Dr. Jeffrey Semel, board certified in internal medicine and infectious diseases, Dr. Khin and Dr. Michael Kaufman, board certified in anatomic pathology and cytopathology. Defendant’s experts agreed that Avery did not suffer from or die of sepsis or septic shock. Dr. Khin and Dr. Kaufman were of the opinion that myocarditis led to Avery’s death. Dr. Semel was of the opinion that no definite cause of death could be determined but that myocarditis was a possibility.

The jury returned a verdict in favor of the defendant. Plaintiff’s post-trial motion was denied, and this appeal followed.

Plaintiff contends, first, that the trial court erred in granting defendant’s motion in limine. Specifically, plaintiff argues that the jury should have been informed of Dr. Shams’ failure to pass the board-certification examination in internal medicine.

Initially, we must disagree with the defendant’s position that Dr. Shams’ failure to pass the board-certification examination is a collateral issue. When a physician sued for malpractice testifies as an expert, evidence as to his age, practice and like matters going to his qualifications as an expert is admissible. Ward v. Epting (1986), 290 S.C. 547, 556, 351 S.E.2d 867, 872; 61 Am. Jur. 2d Physicians, Surgeons, & Other Healers §346 (1981).

In Ward v. Epting, Dr. Epting, an anesthesiologist, was sued for medical malpractice. At trial, the plaintiff was allowed to elicit from Dr. Epting that she had failed the board-certification examinations for anesthesiology. On appeal from a jury verdict for plaintiff, Dr. Epting contended that the trial court erred in denying her motion in limine which would have prevented the jury from hearing of her failed attempts to pass the board-certification examination. In affirming the trial court’s decision on this issue, the reviewing court stated:

“Although Dr. Epting stated she would not testify as an expert, her qualifications as an anesthesiologist were brought out on direct examination. Her counsel asked if she had a separate license for anesthesia. She testified as to routine surgical and recovery room procedures in addition to her own actions in the circumstances of this case. She gave her opinion to a reasonable degree of medical certainty as to how air got into Mrs. Ward’s stomach, and when the tube moved into the esophagus. On cross-examination she gave her opinion that Mrs. Ward had a bronchospasm in the lower part of the lungs.
We hold the record shows Dr. Epting testified as an expert on medical issues. The fact she was not board certified relates to her credibility as a witness since she gave medical opinions.” 290 S.C. at 556, 351 S.E.2d at 872-73.

Defendant does not dispute plaintiff’s position that Dr. Shams testified as a medical expert in this cause. Indeed, the record supports that characterization of his testimony. Dr. Shams testified that he regarded himself as a specialist in the field of internal medicine. He testified as to the examination, diagnosis and subsequent treatment of Avery McCray. He testified as to the reasons he treated Avery for a viral infection rather than a bacterial one and explained why he did not order blood cultures or consult with a specialist. There can be no serious disagreement that Dr. Shams testified as an expert witness. Ward, 290 S.C. at 556, 351 S.E.2d at 872.

We find the case of O’Brien v. Meyer (1989), 196 Ill. App. 3d 457, to be distinguishable. In that case, plaintiff’s medical expert, a Florida physician who had been determined qualified to testify by the trial court, was compelled to reveal that she had failed the Illinois medical licensing examination. In determining that the trial court committed reversible error in failing to bar reference of the doctor’s failure to pass the Illinois test, the reviewing court stated:

“We believe that once the qualifying threshold has been met, attempts to impeach the expert’s opinion should have a clear link to facts and assumptions underlying the opinion, the methodology or testing used, the knowledge and experience of the expert in the matters to which he testifies, personal bias (such as the fact he or she is paid to testify), and so forth. Matters going to schooling and licensing are in a different category, we believe, because of their attenuated relevance to the medical opinion in issue. *** Similarly, as long as an expert witness has obtained a license to practice medicine in one State, his or her failure to obtain a license in another has limited significance, at best. * * *
We do not pronounce an all-encompassing rule on if or when an expert’s opinion may ever be impeached by the failure to pass a licensing examination. In general, we believe, the existence of a license goes only to the initial qualifying inquiry. If the witness holds a license in one State, her failure to pass the equivalent licensing examination in another State should not preclude her from testifying, absent other considerations that may be pertinent. Here, the expert’s qualifications were based on long experience in particular specialties.” 196 Ill. App. 3d at 462-64.

We find it significant that the court in O’Brien distinguished Ward v. Epting on the basis that since Dr. Epting was giving an expert opinion relating to a speciality in which she had not obtained certification, her credibility as a specialist was in issue. Moreover, her lack of certification was a material issue because it bore on whether she was qualified to meet the standards of the speciality. O’Brien, 196 Ill. App. 3d at 464.

Although we agree with the analysis of this issue found in Ward v. Epting, we conclude that the failure to inform the jury that Dr. Shams did not pass the board-certification examination for internal medicine was not reversible error under the facts of this case. During plaintiff’s direct examination of her expert witness, Dr. Rabinowitz, the following colloquy took place:

“Q. Dr. Shams is not board certified. Would the standard of care in your opinion be the same for a non-board certified internal medicine specialist?

A. Yes.”

Thus, the jury was, in fact, informed that Dr. Shams was not board certified. Since, according to plaintiff’s expert, the standard of care was the same for a board-certified physician as for a nonboard-certi-fied physician, the lack of certification in this cause was not a material issue, unlike the situation in Ward v. Epting. Further, we believe that, since the material issue is whether Dr. Shams was board certified, the actual reason for why he was not so certified is of limited significance.

Therefore, we conclude that the trial court did not err in granting defendant’s motion in limine.

Next, plaintiff contends that the trial court erred when it denied plaintiff an opportunity to cross-examine Dr. Semel, defendant’s medical expert, regarding the contents of Dr. Shams’ deposition which he had reviewed prior to trial.

During plaintiff’s cross-examination of Dr. Semel, the following colloquy occurred:

“Q. *** if the clinical picture indicates gastroenteritis with septicemia, you have a negative stool culture, you have to order a blood culture?

A. I would agree with that.

Q. Did you read Dr. Shams’ deposition?

A. Yes, I did.

Q. Did you read in there where he said in his opinion you don’t have to order a blood culture under those circumstances?

MR. SIME: Objection, Your Honor.”

Outside the presence of the jury, defense counsel argued that the question was improper cross-examination because Dr. Shams’ in-court testimony, not his deposition testimony, was before the jury and that whether Dr. Semel agreed with Dr. Shams was irrelevant. Plaintiff’s counsel argued that, under Wilson v. Clark (1981), 84 Ill. 2d 186, he had an obligation to cross-examine Dr. Semel on all of the materials he relied on and which formed the basis of his opinion, which in this case included Dr. Shams’ deposition. The trial court sustained the defense objection on the basis that Dr. Semel could not be impeached on someone else’s statement.

We agree with plaintiff that ordinarily Dr. Semel could properly have been cross-examined on Dr. Shams’ deposition. It is not error to permit an expert to testify regarding reports or medical tests performed by other doctors and which he examined in reaching his own opinion. (Piano v. Davison (1987), 157 Ill. App. 3d 649, 672 (the expert testified that he read the depositions of other witnesses and had read another doctor’s report).) Whether Dr. Semel relied on Dr. Shams’ deposition testimony in reaching his own opinion is not determinative since an expert who bases his opinion on a report does not have to agree with the entire report. Piano, 157 Ill. App. 3d at 671-72.

Nevertheless, we do not believe that in this instance the trial court abused its discretion in sustaining the defense objection. The question posed contained a reference to septicemia, which, according to both Dr. Shams and Dr. Semel, was not present in Avery McCray. Regardless of whether Dr. Shams and Dr. Semel disagreed on whether to order a blood culture when septicemia was present, the question posed in this case was whether Dr. Shams met the appropriate standard of care. Dr. Semel’s opinion that Dr. Shams did was based on the fact that he agreed that sepsis or septicemia was not indicated in Avery McCray. Thus, their disagreement as to treatment of a condition neither believed was present in this case is irrelevant.

We conclude therefore that the trial court did not err in sustaining defendant’s objection to plaintiff’s cross-examination of Dr. Semel.

Finally, plaintiff contends that certain portions of defendant’s closing argument denied her a fair trial.

During closing argument, defense counsel stated:

“You can say all you want about doing blood cultures and wouldn’t it have been nice to have it, but there is no evidence in this record to substantiate what the result would have been. You cannot take the absence—

MR. SALYI (plaintiff’s counsel): I object. In the record and in the record of the court there certainly is. There is the testimony of the physician.

THE COURT: I will sustain the objection.

MR. SIME (defense counsel): You cannot take the absence of a blood test as proof that had the blood test been done it would have been positive.”

Later in his argument, defense counsel stated:

“Dr. Rabinowitz (plaintiff’s medical expert) had to admit that there were never any signs of septic shock in this record, not a one.”

Plaintiff’s attorney objected, and the trial court, without ruling on the objection, instructed the jury to rely on their overall recollective memories. Immediately thereafter, defense counsel stated:

“He [Dr. Rabinowitz] said that he must have gone into septic shock at least hours before his death.

MR. SALVI: That is not the testimony

MR. SIME: It is the testimony.

MR. SALVI: I object and ask that it be stricken.

THE COURT: I will overrule the objection. Again, the jury can use their own collective recollections of what the witnesses testified. You heard the facts.”

Finally, at one point the defense attorney misstated the burden of proof. Plaintiff objected, and the trial court correctly stated the burden of proof.

We observe that plaintiff’s objection to the first remark complained of, i.e., the reference to the blood culture, was promptly sustained by the trial court. Any possible prejudice to the plaintiff was therefore cured. Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 135.

Regarding the second and third comments, plaintiff charges that defense counsel miseharacterized Dr. Rabinowitz’s testimony. From our reading of the testimony, defense counsel’s argument appears to be no more than drawing reasonable inferences from the record, which is permissible. (Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 273.) Even assuming arguendo that defense counsel did mischaracterize Dr. Rabinowitz’s testimony, any error would have been cured by the trial court’s instruction that the jury should rely on its own memory of the evidence. Cahill v. Boury (1986), 144 Ill. App. 3d 413, 419.

Finally, it is apparent from the record that defense counsel’s misstatement of the burden of proof was inadvertent. The mistake was quickly corrected by the trial court, and defense counsel restated the correct burden of proof. We fail to see how this deprived plaintiff of a fair trial.

We conclude that none of the complained-of remarks either singularly or cumulatively deprived the plaintiff of a fair trial.

The judgment of the circuit court is affirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    ROCKFORD METROPOLITAN EXPOSITION AUDITORIUM AND OFFICE BUILDING AUTHORITY, Petitioner-Appellant, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents-Appellees.
    Second District
    No. 2—91—0529
    Opinion filed February 6, 1992.

      Carl A. Ecklund and Stephen E. Balogh, both of Williams & McCarthy, P.C., of Rockford (Elmer C. Rudy, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield, and Jacalyn J. Zimmerman, of Illinois State Labor Relations Board, of Chicago (Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Jacobs, Burns, Sugarman & Orlove, of Chicago (Charles Orlove, of counsel), for other respondent.
   JUSTICE GEIGER

delivered the opinion of the court:

The Rockford Metropolitan Exposition Auditorium and Office Building Authority (Metro Centre) appeals from the Illinois State Labor Relations Board’s (the Board’s) decision which found that Metro Centre engaged in unfair labor practices in violation of sections 10(a)(1), (a)(2) and (a)(4) (Ill. Rev. Stat. 1989, ch. 48, pars. 1610(a)(1), (a)(2), (a)(4)) of the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 1601 through 1627). The case was originated by the respondents, Local 217 (Local 217) of the International Alliance of Theatrical Stage Employees (Union), the local members of the Union. The Board awarded back pay to certain members of Local 217. Metro Centre argues on appeal that: (1) the employees are not “public employees” under section 3(n) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1603(n)); (2) that there exists no historical bargaining relationship between Local 217 and Metro Centre; (3) that Metro Centre did not commit unfair labor practices by refusing to bargain with the Union; and (4) that Metro Centre did not discriminate against Union workers.

The Metro Centre is a year-round venue for theatrical performances and sporting events. It is a municipal corporation established by the Rockford Civic Center Act (Ill. Rev. Stat. 1989, ch. 85, par. 1331 et seq.) and is a public employer under section 3(o) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1603(o)). All events at the Metro Centre fall into one of two categories: “yellow card” and “non-yellow card” shows. Yellow card shows involve a contract between the producers of an event and the Union’s parent organization, the International Alliance of Theatrical State Employees and Moving Picture Machine Operators of United States and Canada (IATSE). The terms of those contracts require the show to utilize a certain number of workers referred by IATSE local unions at each venue.

In yellow card shows, the agreement established by IATSE and the producers of an event sets the wages, hours and other terms and conditions of employment for workers referred by Local 217. In non-yellow card shows there is no yellow card contract between the producer of the show and the IATSE. For these shows, the Metro Centre employs its own permanent staff of stagehands and supplements that staff when needed. Some of its permanent employees are also members of the stagehand union. The Metro Centre has, however, utilized the services of Local 217 spotlight operators on all shows including the non-yellow card shows.

The Metro Centre’s exclusive use of Local 217 spotlight operators dates back to an agreement embodied in two memoranda dated January 23, 1981, and April 14, 1982. The agreement reached in the memoranda defined the terms and wages for employees referred by Local 217 for all yellow card shows. In addition, the mem-oranda states that on all non-yellow card shows the Metro Centre will use spotlight operators referred by Local 217. The preamble of each memoranda states that “this memorandum shall not be construed as recognition by the Metro Centre of the [Union] in any formal way nor does the Metro Centre agree to bargain collectively in any manner with any of its employees.” Since the date of the second memorandum in 1982, no further written agreements have been entered into between Local 217 and Metro Centre.

For both yellow card and non-yellow card shows, Local 217 selects workers to send to the Metro Centre. The Metro Centre does not have any control over which local members are referred for any particular show. The spotlight operators are free to decline a referral without being subject to discipline by the Metro Centre. The Metro Centre pays Local 217 a lump sum for the services provided by its workers. Local 217 keeps a portion of the money for Union dues, fees, social security and income tax withholding. Until July 13, 1990, it also kept a share for worker’s compensation insurance. After making these deductions, Local 217 pays the individual workers.

While at the Metro Centre, spotlight operators are under the control of the show’s lighting director. Approximately 90% of the Metro Centre shows that use spotlight operators have lighting directors who are employees of the traveling show and are not Metro Centre employees. It is undisputed that Metro Centre has the right to send home and refuse further referrals of operators who have not properly performed their assignments. It also has the right to hold over operators to help stagehands after any performance.

Since the date of the 1982 memorandum, the relationship between the Metro Centre and Local 217 has been governed by that agreement, except with respect to wage provisions which have been adjusted periodically. From 1981 to the present, the Metro Centre and Local 217 met every 12 to 15 months to update their agreement. At the request of Local 217, on September 19, 1989, the parties exchanged written contract proposals to update their agreement.

The Metro Centre’s proposed contract was identical to the 1982 agreement, except in regard to wages. It also contained the preamble disclaiming any recognition by the Metro Centre of Local 217 and of collective bargaining. The contract presented by Local 217 proposed to cover not only the spotlight employees but also stagehands, moving picture operators, carpenters, property men, electricians and others.

On August 23, 1989, according to the testimony of Local 217 negotiators, Bradley Walsh, the general manager of Metro Centre, stated that he did not want any Union stagehands working at the Metro Centre and that if the Union stagehands working in his building wanted more work, they should quit the Union.

Local 217 initiated this litigation on January 11, 1990, filing a charge of unfair labor practices against the Metro Centre pursuant to section 11 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1611). Local 217 alleged that Metro Centre violated sections 10(a)(1), (a)(2), and (a)(4) by: (1) maintaining a policy designed to discourage membership in or representation by the Union; (2) discriminating against all members of the Union by refusing to hire them for available work; and (3) refusing to bargain collectively in good faith with the Union. A hearing officer heard the case on July 10, 1990. In his recommended decision and order, he found that the spotlight operators are public employees employed by Metro Centre; that the Metro Centre and Local 217 have a historical de facto bargaining relationship with regard to the spotlight employees; and that the Metro Centre violated sections 10(a)(1), (a)(2), and (a)(4) of the Act by refusing to bargain in good faith with Local 217, the representative of the employees, and by discriminating against Union-referred stagehands. He awarded stagehands on Local 217’s referral list back pay for lost wages incurred since July 1,1984.

Both Local 217 and the Metro Centre filed timely exceptions to the hearing officer’s recommended decision. On April 17, 1991, the Board issued its decision and order, agreeing with the findings of the hearing officer, but limiting the back pay award to the period beginning six months prior to filing of the charge. The Metro Cen-tre brought this appeal.

Before we address the merits of this appeal, we first address a motion filed by the Metro Centre which we have taken with the case. The Metro Centre asks this court to strike the Union’s statement of facts contained in Local 217’s appellate brief. The Metro Centre argues that several passages in the Union’s brief make no references to the pages of the record on appeal and that several passages constitute argument or comment, containing disputed testimony or facts but set forth as undisputed facts in violation of Supreme Court Rule 341(e)(6) (134 Ill. 2d R. 341(e)(6)).

We find adequate record references in Local 217’s fact statement and find no reason to strike its statement of facts, and we will disregard any inappropriate comments therein. James v. Shig Yasunaga (1987), 157 Ill. App. 3d 450, 452.

We now address the merits on appeal. Metro Centre first argues that the Board incorrectly determined that the spotlight operators referred by Local 217 are “public employees” within section 3(n) of the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 1603(n).) The Metro Centre asserts that the spotlight operators are independent contractors.

“Public employee” is defined under section 3(n) of the Act as any individual employed by a public employer but excluding independent contractors. (Ill. Rev. Stat. 1989, ch. 48, par. 1603(n).) The Metro Centre stipulated that it is a “public employer,” as that term is used in section 3(n) of the Act. Both the Metro Centre and Local 217 agree that the test of whether the spotlight operators are “employees” is the one articulated by the Board in Village of Bellwood, 4 Pub. Employee Rep. (Ill.) par. 2042, case No. S—RC—88—79 (Illinois State Labor Relations Board, October 14, 1988).

The hearing officer and the Board relied on the Bellwood test to analyze the relationship between Metro Centre and the spotlight operators. As articulated in Bellwood, the analysis of whether an individual is considered an “employee” must take into account the totality of the circumstances involving the employment nexus. The inquiry should include the regularity of the group members’ employment, the presence of substantial turnover in the group’s composition, the group members’ expectation of continued employment, the group members’ ability to refuse work without being subject to discipline, the number of hours worked, whether the individual group members are compensated for the services which are rendered and the form of compensation offered. Village of Bellwood, 4 Pub. Employee Rep. (Ill.) par. 2042, at X-305.

The hearing officer and the Board recognized that there were aspects of the relationship here that did not resemble an employer-employee relationship. They noted that the Metro Centre does not pay wages directly to the operators, does not withhold taxes or social security, provides no benefits, and, as a general rule, that the operators are free to decline a referral without being subject to discipline by the Metro Centre. However, their findings reflect that the Metro Centre’s business is characterized by numerous engagements of short duration and that the Centre has merely delegated some of its functions as an employer to the Union. Additionally, the Board placed strong emphasis on the fact that Metro Centre supervises the work of the operators and determines their wages, hours, and other terms and conditions of employment as well as reserving the right to discipline those who fail or refuse to properly perform tasks assigned. See National Labor Relations Board v. United Insurance Co. (1968), 390 U.S. 254, 255-58, 19 L. Ed. 2d 1083, 1085-87, 88 S. Ct. 988, 989-90; Cardinal McCloskey Children’s & Family Services (1990), 298 NLRB 55.

Under the Illinois Labor Relations Act and the Code of Civil Procedure, the Board’s findings and conclusions on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 48, par. 1611(e); ch. 110, par. 3—110.) A reviewing court may not reweigh evidence or make independent determinations of fact. (Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 906.) We must confirm the Board’s factual determinations unless they are contrary to the manifest weight of the evidence. Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 872.

We have reviewed the full record and we find that the Board’s findings that the spot operators are “employees” of the Metro Centre is not against the manifest weight of the evidence, as several of the factors in the Bellwood test support this finding, as well as a sufficient indicium of control by the Metro Centre over the spotlight operators. (See Village of Bellwood, 4 Pub. Employee Rep. (Ill.) par. 2042, at X-305; Cardinal McCloskey Children’s & Family Services, 298 NLRB 55.) We will not reverse the Board’s findings. Illinois Nurses Association v. Illinois State Labor Relations Board (1990), 196 Ill. App. 3d 576, 582.

The second issue that the Metro Centre urges on appeal is that the Board erred in its determination that a historical bargaining relationship existed between it and Local 217’s spotlight operators. The Metro Centre contends that the preamble language of the 1981 and 1982 memoranda and the lack of pre-Act bargaining between it and Local 217 preclude any historical recognition of the labor union. The respondents argue that the language of the preambles disclaimed the parties’ intent to create formal recognition of a bargaining relationship, but does not serve to prevent the Centre’s de facto historical recognition of a bargaining relationship.

The Board found evidence of only two meetings between the Metro Centre and Local 217 before the passage of the Act. There was an additional meeting in 1984, but there was no evidence of whether it took place before the Act was passed in 1984. The first two meetings in 1981 and 1982 resulted in a written agreement containing a preamble which expressly waived any formal recognition of the Union or the workers as a bargaining unit. The Board found that the Union could not have waived its right to de facto recognition because the statutory right of historical recognition had not been in existence at the time the memoranda were drafted and therefore the Union could not have knowingly relinquished that right. The Board found that the Metro Centre had historically recognized Local 217.

There are two forms by which an employer can “historically recognize” a labor union: those are formal and de facto recognition. (Village of Worth, 2 Pub. Employee Rep. (Ill.) par. 2045, case No. S—RC—259 (Illinois State Labor Relations Board, September 24, 1986).) Formal recognition occurs when an employer expressly admits that it recognizes the labor organization as the exclusive representative of a specified group of employees. (City of Peoria v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 429, 434.) De facto recognition occurs when an employer, by its conduct, impliedly recognizes the labor organization as an exclusive representative of the employees in a specified unit. (Peoria, 165 Ill. App. 3d at 434-35.) De facto recognition is shown by evidence that the employer established, prior to the effective date of the Act, a practice of meeting with a labor organization to discuss the terms and conditions of employment. Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7, 16.

Metro Centre argues that under the Board’s strained interpretation of the historical recognition provisions, no matter how clearly prior to the effective date of the Act the parties manifest their intentions of not establishing a bargaining relationship, one party can always claim de facto recognition where it never existed. Taking the facts in a light most favorable to Local 217, there was a single pre-Act meeting between the parties sometime in 1984. At that meeting, even if it occurred before the Act, the parties discussed only one topic: wages. The only other evidence of pre-Act negotiation activity between the Centre and the Local 217 consisted of the two memoranda which specifically waived recognition of the Union. At the meetings in 1981 and 1982, that resulted in the memoranda inconsistent with recognition of Local 217, there is no positive evidence of any pre-Act event upon which to establish a practice of recognition. See Village of Worth, 2 Pub. Employee Rep. (Ill.) par. 2045.

One meeting on one topic cannot rise to the level of practice to be contemplated by a court as establishing historical recognition. (Cf. Village of Oak Park, 168 Ill. App. 3d at 10-16 (13 meetings on 11 employment topics); City of Chillicothe v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 217, 221-23 (20 meetings covering 5 employment topics); Village of Worth, 2 Pub. Employee Rep. (Ill.) par. 2045 (employment meetings over a 30-year period).) We find that the Board’s conclusion that there was a historical bargaining relationship was against the manifest weight of the evidence. Rockford, 153 Ill. App. 3d at 872.

Another issue raised on appeal is whether the Metro Centre violated sections 10(a)(1) and (a)(4) of the Act by refusing to bargain in good faith with Local 217. (Ill. Rev. Stat. 1989, ch. 48, pars. 1610(a)(1), (a)(4).) The Board’s finding that it did so presupposes that the Metro Centre had a duty to bargain with Local 217. As we have found that there was no historical bargaining relationship between the Metro Centre and Local 217, we further find that there was no duty to bargain with Local 217 and there can be no violation of sections 10(a)(1) and (a)(4) of the Act (Ill. Rev. Stat. 1989, ch. 48, pars. 1610(a)(1), (a)(4)).

The next issue raised on appeal is whether the Metro Centre violated sections 10(a)(1) and (a)(2) of the Act by discriminating against Union-referred stagehands. Metro Centre argues that there can be no violation because there is no evidence of any adverse employment action taken against any individual Union employee.

Section 10(a)(2) makes it an unfair labor practice for an employer “to discriminate in regard to hire or tenure of employment *** in order to encourage or discourage membership in or other support for any labor organization.” (Ill. Rev. Stat. 1989, ch. 48, par. 1610(a)(2).) The prima facie elements of violation of sections 10(a)(1) and (a)(2) are: (1) an employee engaged in union activity; (2) knowledge by the employer of such activity; (3) anti-union animus harbored by the employer; and (4) adverse employment action taken under suspicious circumstances. (American Federation of State, County, & Municipal Employees Council 31, AFL-CIO v. Illinois State Labor Relations Board (1988), 175 Ill. App. 3d 191, 197.) Adverse employment action, the fourth prima facie element, need not take the form of employee discharge, but may be manifested in the refusal to hire a union employee. See Phelps Dodge Corp. v. National Labor Relations Board (1941), 313 U.S. 177, 186-187, 85 L. Ed. 1271, 1278-79, 61 S. Ct. 845, 848-49 (interpreting section 8(a) of the National Labor Relations Act); Alexander Dawson, Inc. v. National Labor Relations Board (9th Cir. 1978), 586 F.2d 1300, 1303.

We find that there is no evidence of adverse employment action by the Metro Centre and no violation of sections 10(a)(2) and (a)(1) of the Act. There was no showing here that any individual employee was discharged for Union involvement. (See Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 869 (where employees dismissed when they joined labor union).) There is also no evidence in the record that individual Union members were denied employment after seeking it from the Metro Centre (cf. Phelps Dodge Corp., 313 U.S. at 186, 85 L. Ed. at 1278-79, 61 S. Ct. at 848-49 (where union strikers were refused employment after applying for reinstatement of their jobs)) or that any Union employee was harassed by Metro Centre (see City of Chicago v. Illinois Local Labor Relations Board (1988), 182 Ill. App. 3d 588, 594-95 (harassment of employee is sufficient to establish adverse employment action)). Absent a showing of adverse employment action, there cannot be a violation of sections 10(a)(1) and (a)(2) of the Act. (See American Federation, 175 Ill. App. 3d at 197.) With the absence of specific allegations of those or any other adverse employment actions, we find the Board’s decision on this issue to be against the manifest weight of the evidence. See Rockford Township Highway Department, 153 Ill. App. 3d at 872.

For the above reasons, we reverse the decision of the Illinois State Labor Relations Board.

Judgment reversed.

McLaren and NICKELS, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ROBERT EDWARDS, Defendant-Appellant.
    Second District
    No. 2—90—0023
    Opinion filed February 4, 1992.

      Robinson & Skelnik, of Elgin (Mary Robinson, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, James Robert Edwards, appeals from his conviction of aggravated criminal sexual assault. Following a bench trial in the circuit court of Kane County, defendant was sentenced to 15 years’ imprisonment. The issues presented for review are whether: (1) the court abused its discretion when it found the five-year-old victim competent to testify about events that occurred at age three; (2) the court erred in barring expert testimony offered by defendant; (3) the admission of certain out-of-court statements violated the ex post facto clause; (4) the court erred in admitting hearsay; and (5) the court relied on an improper factor when sentencing defendant. We affirm in part, vacate in part, and remand.

Defendant was charged with aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).) The indictment alleged that between September 1987 and January 1988 defendant committed an act of sexual anal penetration with his son, RBL, who was under 13 years of age when the act was committed.

RBL was bom to defendant and his wife, JL, on August 20, 1984. Defendant and JL were divorced in January 1986; JL married again in February 1986. After the divorce, RBL lived with JL. Under the terms of the divorce decree, defendant had rights to visitation with RBL.

On direct, JL testified that RBL developed unusual behaviors around the end of 1986 and early 1987. According to JL, RBL masturbated excessively, was obsessed with being naked, and would smash his penis up against the faces of people on television. RBL would also wake up in the middle of the night vomiting or having nightmares. He complained of stomachaches and had problems with bowel movements. He would refuse to eat for days at a time and then eat until he vomited. JL further testified that RBL acted in a sexual manner with other children. She caught him fondling them several times. Sometimes he put tape on his penis and rectum. RBL would also push JL’s head down towards his penis and say, “go ahead and taste it Mommy, it’s okay.”

JL asserted that, during the period between September 1987 and January 1988, RBL was reluctant to go with defendant when he came to exercise his visitation rights. JL testified that on these occasions RBL would lock himself in his room, or hide between JL’s legs, or curl up in a fetal position and say that “Daddy Jim” was mean to him. During this period of time, RBL referred to defendant as “Daddy Jim.” Upon his return from visitation with defendant, RBL would be lethargic, or he would bang his head, kick, spit, cry, punch, pull his hair or call JL a bitch or a whore. Defendant denied that JL ever spoke to him about RBL’s problems, and defendant denied that RBL was ever reluctant to accompany defendant on visitation days.

In January 1988, JL took RBL to see his pediatrician, Dr. Khoka. By this time it was apparent that RBL was suffering from a case of venereal warts on his rectum, a condition commonly caused by sexual contact. On Dr. Khoka’s advice, JL had RBL examined for learning disabilities. Based on the results of this evaluation, JL spoke with a social worker who determined that RBL showed signs of having been physically abused.

On or around February 2, 1988, a Department of Children and Family Services (DCFS) worker, Mary Ellen Schaid, and Sergeant Wayne Fieroh of the Illinois State Police went to JL’s home and spoke with RBL. JL was not present during this interview. During the interview, RBL indicated that he and defendant had “bad secrets.” RBL refused to explain himself further.

On February 4, 1988, RBL was admitted to the child development program at Mercy Center in Aurora. During his stay, RBL was under the care of Marjorie Foreman, a psychiatrist. In treating RBL, Dr. Foreman relied upon the history provided by JL. JL explained that she had been concerned about RBL’s welfare for about a year prior to his admission and that she consulted a lawyer during that year to see about discontinuing defendant’s visitation rights.

At the outset of RBL’s hospitalization, Foreman informed JL that the staff was not there to get information about the abuse and that it would be inappropriate to ask RBL specific questions about the abuse. Sometime during RBL’s stay, Dr. Foreman had to ask JL to focus on therapeutic issues rather than on her attempts to prove what happened between RBL and defendant.

An examination performed by a medical doctor at Mercy revealed that RBL suffered from venereal warts and abnormally loose sphincter tone. RBL also had a scar resulting from a tear in the skin surrounding his rectum.

JL testified that after RBL was released from Mercy Center on March 21, 1988, he began seeing Tina Grossman, a therapist who specialized in treating and evaluating child sexual abuse. RBL’s first session with Grossman was on March 27, 1988. After that, he saw her regularly for one-hour sessions, two times a week. Six months preceding the trial, Grossman changed the sessions to two-hour sessions, one time a week.

RBL testified at trial that he had seen Grossman hundreds of times. During his therapy, RBL stabbed a “Daddy Jim” doll with a play knife. RBL also stepped on the “Daddy Jim” doll and picked it up and threw it down with Grossman’s help. RBL testified that he talked about what “Daddy Jim” did to him each time he went to Grossman’s. RBL also had the opportunity to mark the “Daddy Jim” doll with imitation blood. In addition, it is apparent that RBL recreated the abusive acts using a “[RBL] doll” and a “Daddy Jim doll.”

Sergeant Fieroh conducted further interviews with RBL on March 31, 1988. JL briefed Fieroh on RBL’s behaviors up to that point in time. Fieroh’s questions focused on these behaviors and on RBL’s relationship with defendant.

In November 1988, RBL wrapped an electrical cord around his neck and jumped off his dresser. He said he just wanted to die. In February 1989, RBL was standing naked in the living room with his belt wrapped around his neck. His face was blue, and his tongue was hanging out. He said he had to die because he had told bad secrets. Thereafter, RBL was hospitalized for six weeks at Lutheran General Hospital and was released sometime in March 1989.

Defendant testified that he never talked to RBL about bad secrets, that he never threatened to hurt JL if RBL told bad secrets, that he never physically or sexually abused RBL, and that he (defendant) was never physically or sexually abused. Defendant was found guilty after a bench trial. He was given a 15-year sentence for having committed a Class X felony, for which a sentence of not less than six years or more than 30 years must be imposed. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(3).

Defendant first contends that the trial court abused its discretion when it allowed five-year-old RBL to testify about events that occurred when he was three. Defendant argues that the court incorrectly looked to RBL’s present ability to testify rather than his ability to perceive and testify at the date the events occurred.

The competency of a witness is a determination that lies within the discretion of the trial court and will be reversed only when there has been an abuse of that discretion or where there has been a manifest misapprehension of some legal principle. (People v. Ballinger (1967), 36 Ill. 2d 620, 622; In re A.M.C. (1986), 148 Ill. App. 3d 775, 778.) The well-established rule is that the degree of intelligence of a child is the factor which determines competency, not chronological age. (Ballinger, 36 Ill. 2d at 621-22; A.M.C., 148 Ill. App. 3d at 778; People v. Barfield (1989), 187 Ill. App. 3d 257, 260; People v. Epps (1986), 143 Ill. App. 3d 636, 639; People v. McNichols (1986), 139 Ill. App. 3d 947, 951.) In order to determine a child’s competence, a court should consider whether the child is sufficiently mature to (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth. Ballinger, 36 Ill. 2d at 622; McNichols, 139 Ill. App. 3d at 951.

When RBL testified at trial, he was five years old. In determining RBL’s competence, the trial judge looked at RBL’s present ability to answer questions and to understand the nature of those questions. He also looked at RBL’s past ability to receive impressions and his ability to recollect those impressions. In addition, the court noted that RBL knew his family members, was able to count to 24, could recite his ABC’s, knew his colors, named his school, identified the judge and his function, and was aware of the difference between the truth and a lie.

Defendant argues that, regardless of RBL’s present ability to testify, the court below should have required a showing that RBL could accurately perceive events at age three. For example, defendant states that RBL testified incorrectly with regard to the location and layout of defendant’s house, the identity and relationship of defendant’s brothers and sisters, and that RBL testified he was raped 11 times when he could not count that high at the time.

We determine that these errors of fact or memory are unrelated to RBL’s consistent testimony that he was sexually abused at least once. “It is not necessary for the child to give perfect answers to questions during the competency determination or at trial for the child to be deemed a competent witness.” (Barfield, 187 Ill. App. 3d at 261.) The witness’ ability to remember is to be tested on cross-examination. The test of competency is measured by intelligence, not memory. Therefore, the trial court did not abuse its discretion in finding RBL competent to testify.

Defendant next contends that the court erred in excluding portions of expert testimony which would have shown that defendant’s makeup was such that he was unlikely to have committed the acts of abuse.

At trial defendant called a clinical psychologist as an expert witness in order to testify that defendant did not exhibit the same traits as those typically exhibited by persons who sexually abuse children. The expert testified that there was nothing in her analysis which suggested that defendant was a pedophile. The expert then began to explain conditions under which someone who is not a pedophile might abuse a child and how she found no evidence of circumstances that would suggest abuse by defendant. Upon objection by the State, the court disallowed further testimony on this matter because it spoke to the ultimate issue of the case.

Defendant argues that he should be able to submit evidence of his personality if the victim is allowed to submit evidence of post-traumatic stress syndrome (Ill. Rev. Stat. 1989, ch. 38, par. 115—7.2). We do not agree. Section 115 — 7.2 simply gives the victim a method of showing that abuse has occurred. Such evidence does not necessarily indicate that defendant caused that abuse. In contrast, defendant’s expert in the present case proposed to testify that defendant did not commit the abuse. Thus, defendant’s evidence speaks directly to the issue.

“While a defendant may introduce evidence to establish that his character traits are inconsistent with committing the crime with which he is charged, this must be shown only by evidence of general reputation and not by the personal opinion of the witness.” (People v. Wheeler (1991), 216 Ill. App. 3d 609, 619.) In Wheeler the trial court prevented defendant from presenting the testimony of two psychologists that he did not possess traits consistent with those of a pedophile. (Wheeler, 216 Ill. App. 3d at 619.) The trial judge here was more liberal than the Wheeler court because defendant was able to introduce evidence that he did not possess traits consistent with a pedophile. Instead, defendant here was simply prohibited from introducing testimony that there was no evidence of other circumstances that would suggest he committed child abuse. In light of Wheeler, it is apparent that the exclusion below did not amount to an abuse of discretion.

Defendant next contends that the admission of out-of-court statements by RBL pursuant to section 115 — 10 violates the ex post facto clause where the offense charged preceded the effective date of the amendment. We disagree.

Section 115 — 10 provides a hearsay exception which allows a child to testify that an out-of-court statement was made in which he or she complained that an act of abuse took place. (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.) In addition, section 115 — 10 provides that the child may testify as to the contents of that complaint. (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(a)(2).) Under prior statutes, a child was permitted to testify that he/she complained of an abusive act to another, but no hearsay exception was provided as to the contents of that complaint. Ill. Rev. Stat. 1987, ch. 38, par. 115—10(a)(1).

Section 115 — 10 concerns trial procedures rather than substantive matters, and, therefore, the more recent version of the statute applies. People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1010; People v. Priola (1990), 203 Ill. App. 3d 401, 417.

We agree with defendant’s assertion that a law is ex post facto if it makes criminal an act that was not criminal at the time the act was committed, or if it increases the punishment for an offense previously committed, or if it alters the rule of evidence to make a conviction easier. (Priola, 203 Ill. App. 3d at 418.) However, the most recent version of section 115 — 10 requires a determination that safeguards exist which bolster the reliability of the statements. Therefore, its provisions do not necessarily make conviction easier. Priola, 203 Ill. App. 3d at 418.

Defendant next contends that the court erred in admitting hearsay pursuant to section 115 — 10 because the evidence of the time, content, and circumstances of the statements failed to show sufficient safeguards of reliability. Defendant also argues that the content of some of the statements exceeded the scope of what is admissible under section 115 — 10.

Section 115 — 10 of the Code provides as follows:

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

We begin by noting that cases which involve the determination of the reliability of section 115 — 10 statements are fact specific. Therefore, our holding in this matter will be considered sui generis.

The first series of statements defendant complains about are those which preceded RBL’s hospitalization at Mercy Center. At trial JL testified that when it was time for RBL to accompany defendant on visitation days between September 1987 and January 1988, RBL would “make a scene” and say that he did not want to go to “Daddy Jim’s” house and that “Daddy Jim” was “mean” to him. Defendant argues that these statements do not describe “detail[s] pertaining to any act which is an element of an offense” and, therefore, they do not fall within the purview of the hearsay exception provided by section 115 — 10(aX2). The trial court admitted these statements for the fact that they may have been said and not for the truth of the matter asserted. To this extent, the statements are not hearsay. Therefore, section 115 — 10 would not apply.

Defendant also argues for the inadmissibility of testimony offered by Sergeant Fieroh. Sergeant Fieroh testified that on February 2, 1988, he and Schaid came to interview RBL in response to a report made by JL. Fieroh testified that Schaid initiated the interview and spoke with RBL about neutral topics with the intention of learning whether RBL understood different concepts. Schaid then gave RBL anatomically correct dolls with which he could play. RBL wanted to disrobe the dolls but hesitated and told Fieroh and Schaid that his mother said that it was not a nice thing to do. Schaid then told RBL that he could disrobe the dolls.

According to Fieroh, when asked about the male doll, RBL simply looked at the penis area and made a bellowing sound. RBL said he did not know what the penis was. Schaid asked if RBL did not know, or if it was a secret. RBL did not answer but looked startled. Schaid then asked if RBL had any secrets, and whether they were good secrets that made him happy or bad secrets that made him sad. RBL said that he had bad secrets. Schaid asked RBL who told him these secrets, and RBL responded, “Daddy Jim.”

The trial court ruled that these statements were within the purview of section 115 — 10 because they were a form of identification of the defendant. We agree. The general rule is that statements which identify the defendant in a child abuse case are admissible as hearsay exceptions under section 115 — 10. People v. Morton (1989), 188 Ill. App. 3d 95, 103; Priola, 203 Ill. App. 3d at 418.

The second series of statements defendant objects to are those made during RBL’s hospitalization at Mercy Center. At trial, JL testified that on February 4, 1988, she was with RBL in his room at the hospital. RBL asked who could come to see him. JL responded by asking RBL whom he wanted to see. After RBL named several relatives, JL asked him if he wanted to see his “Daddy Jim.” When RBL said “no,” JL asked him why. RBL replied, “ ‘Cause he’s mean to me and everything.” JL pressed RBL to explain what he meant by “and everything.” Eventually RBL turned around and yelled, “ ‘Cause he pokes my hole.” JL asked what hole, and RBL pointed to his buttocks. JL then immediately left the room to get a staff member to come listen to what RBL had to say. A nurse, Mary Beth Hutches, returned with JL. Hutches testified that when she asked RBL to repeat what he had told his mother, RBL climbed into his younger brother’s playpen and began to talk like a baby. After a little while, RBL climbed out of the playpen, got on top of a desk, and lay in a fetal position. After JL asked RBL to tell Hutches what “Daddy Jim” does to him, RBL said, “ ‘Daddy Jim’ pokes my hole.” Hutches asked RBL if there was anything else. RBL shook his head “no.” Hutches testified that RBL had a tightened look on his face and was quivering. At bedtime later that evening, when Hutches and RBL were alone, Hutches asked RBL what “Daddy Jim” does. RBL said “he pokes my hole.” Hutches asked him what hole, and RBL pointed to his buttocks. At that point, RBL lay back in his bed and stared off into space.

Defendant alleges that the statements above do not qualify as section 115 — 10 hearsay exceptions because the surrounding circumstances do not provide adequate assurances of reliability.

In determining whether there were sufficient safeguards of reliability pursuant to section 115 — 10(b)(1), the trial judge made the following statements:

“I think based upon what I’ve heard here in this case, and the condition of diagnosis back in the early part of February that the child has post-traumatic stress disorder, shows that the child was very fragile. And that it sounds naturally after listening to the doctor that he’s not going to just blurt out everything that happened. There’s going to have to be a little bit of questioning, a little bit of prying into ***.
We have to use the word prompting, I’ll use the word prompting. There has to be some prompting. Not all prompting is wrong. I think it’s the degree of prompting that might create a situation where a safeguard for reliability might be overcome.
The prompting that seemed to have taken place on February 1st or 2nd with Mary Ellen Schaid and Wayne Fieroh did not seem to be excessive. The prompting that took place *** on February 20th when the mother first found out doesn’t seem to be excessive.
Now, when Mary Beth Hutches, more or less [a] stranger to the family situation, to the family nucleus, was called in and the mother said now tell her, there was quite a bit of prompting there. But at that time the poke in the hole had already been mentioned. And it appears that she simply was — the mother simply now is trying to get her child to tell this stranger the story.
And it might take — it’s logical that it would take a little bit more prompting *** because the child now is trying to tell it to a stranger rather than his mother who he felt safe with. But he did tell the story.
And Mary Beth Hutches, I think rightfully so, wanting to check it out herself, later on when the mother was gone, asked on her own, and she also got some admissions about the event.”

The United States Supreme Court court has set forth guidelines which should be applied by a court making a reliability determination under a hearsay exception. (Idaho v. Wright (1990), 497 U.S. 805, Ill L. Ed. 2d 638, 110 S. Ct. 3139.) Wright held that absent a firmly rooted hearsay exception, a showing of particularized guarantees of trustworthiness must be made in order to satisfy the confrontation clause. (Wright, 497 U.S. at 815, 111 L. Ed. 2d at 652, 110 S. Ct. at 3146.) Although the present case does not involve a confrontation clause question, we find Wright instructive when making a reliability determination. The central issue in Wright was whether the State carried its burden of proving that a 21/2-year-old victim’s incriminating statements bore sufficient indicia of reliability in order to withstand scrutiny under the confrontation clause. (Wright, 497 U.S. at 815, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147.) According to Wright, the relevant circumstances to be examined when determining reliability are those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3149.) The court cited spontaneity of repetition, consistency of repetition, and use of unexpected terminology as some of the factors which may be helpful in determining the reliability of incriminating statements. (Wright, 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) The court also stated that it is permissible to examine whether the child had a motive to fabricate when making a reliability determination. (Wright, 497 U.S. at 826, 111 L. Ed. 2d at 659, 110 S. Ct. at 3152.) In reaching its decision, the court in Wright focused on the improper method of interrogation used by a physician who examined the allegedly abused child. Specifically, the facts show that the physician asked the child questions which focused directly upon the defendant’s involvement with the child. The court determined that the physician had preconceived notions that defendant committed the abuse and asked impermissibly suggestive questions. Wright, 497 U.S. at 826, Ill L. Ed. 2d at 659, 110 S. Ct. at 3152.

We note that it was the leading nature of the questions that rendered them deserving of being censored. However, the mere fact that the testimony was obtained as a result of questioning does not alone render it inadmissible. (Morton, 188 Ill. App. 3d at 104.) To hold otherwise would leave unprotected those children who do not come forth of their own volition to complain about the abuse.

In the present case, we determine that RBL’s statements were made under circumstances which provided particularized guarantees of trustworthiness. Most importantly, RBL’s initial statement that defendant abused him was made in response to a nonleading question. JL carefully worded her questions to RBL when asking him about whom he would like to come to the hospital. JL was neither suggestive nor leading in her questioning format. RBL freely stated that he did not want to see “Daddy Jim” because “he pokes my hole.” Subsequent questioning by JL, hospital staff, and other medical personnel simply sought further details about the incident.

RBL was, indeed, subject to extensive questioning about the abuse. However, such questioning, in and of itself, should not render his testimony unreliable. The essence of RBL’s story was always the same. RBL never equivocated or withdrew his statements. RBL had no motive to fabricate such an accusation, nor was such a description expected of a child of his age.

In light of the above, we determine that the trial court properly found RBL’s statements to be reliable and thus admissible. We agree with the trial judge that the prompting used was a legitimate and necessary method to get RBL to talk about a very sensitive subject. We do not feel that the facts here indicate that improperly suggestive or leading questions were asked. In sum, RBL’s freely given initial statements about his “Daddy Jim,” coupled with his unwavering adherence to the essential facts of the story, provide sufficient guarantees of reliability to satisfy section 115 — 10.

A final series of statements defendant objects to are those made after RBL was discharged from Mercy Center. JL testified that on March 28, RBL asked her if she wanted to play the “peeper game.” JL said that she told RBL she did not want to play. However, she asked him to show her how it was done. RBL then touched his penis untE it became erect. JL asked what would happen next, and RBL said that “Daddy Jim” would get the “sharp stuff.” When JL asked what he meant, RBL said, “the fork.” At JL’s request, RBL went to the kitchen and came back with a fork. He touched his penis with the fork and said, “Then [‘Daddy Jim’] pokes it in my hole.”

Fieroh came to interview RBL on March 31, 1988. JL testified that she told Fieroh about the March 28 statements so he could question RBL about them. Fieroh said that he asked RBL where “Daddy Jim” lived. RBL told Fieroh that he did not like to go there. When Fieroh asked him why, RBL stated that “Daddy Jim” “poked his hole.” Fieroh asked RBL to explain and RBL pointed to his buttocks and repeated “he pokes my hole.” Fieroh asked what “Daddy Jim” used, and RBL said “a fork.” At Fieroh’s request, RBL got a fork from the kitchen and pointed to the prong end when asked which side “Daddy Jim” used.

Fieroh said he asked RBL if there was anything else he did not like about going to “Daddy Jim’s.” RBL said sometimes they played the “peeper game.” In response to Fieroh’s questions, RBL indicated that by “peeper” he meant “penis.” RBL explained that “ ‘Daddy Jim’ poked [RBL’s] hole” with his “peeper” and that sometimes “white sticky stuff” came out. Fieroh asked if there was anything else. RBL said sometimes they played the “doctor game.” In response to several more questions, RBL said “Daddy Jim” would have him kiss “Daddy Jim’s” penis and that sometimes “sticky stuff” would come out. RBL also said that whenever they played the “peeper game” or the “doctor game,” “Daddy Jim” would tell him these games were their secrets and RBL should not tell anyone or “Daddy Jim” would pull all of his mommy’s hair out.

Defendant now argues that the circumstances surrounding these statements preclude a finding of reliabüity. First, defendant asserts that the increasingly detailed accounts of the abuse tend to undercut their reliabüity. Second, defendant attacks the accuracy of the statements because they were made several months after any abuse could have occurred. Third, defendant questions whether the statements were voluntary because they were made after weeks of therapy conducted by the Mercy Center staff. It is apparent from the reliability hearing that the trial judge considered all the circumstances surrounding each of the statements made by RBL. With respect to the statements above which were made between March 28 and March 31, the trial judge held that there had been sufficient safeguards of reliability in the areas of time, content and circumstances. We agree. We view the detail which RBL adds over time to be more of a reflection of RBL’s ability to cope with and talk about the trauma, rather than an indication of a false story. In addition, we view the time lapse defendant complains about as insignificant. The facts indicate that the abuse could have occurred only three months earlier. Furthermore, RBL’s therapy does not undercut his reliability in light of the fact that incriminating statements had already been made.

If section 115 — 10 is to have any meaningful effect, then it must be permissible to question children about the alleged abuse. We see nothing impermissibly suggestive or leading about the questions asked by Fieroh or JL. It is entirely unrealistic to expect a child to speak about such topics in the course of casual conversation. We recognize the leading nature of the questions that were used in Wright, and we determine that the questions asked here do not rise to the same level of suggestibility. (Wright, 497 U.S. 805, Ill L. Ed. 2d 638, 110 S. Ct. 3139.) Defendant argues that the Mercy Center staff was told that “Daddy Jim” had sexually abused RBL and engaged in repeated playing out of the abuse between a “ ‘Daddy Jim’ doll” and a “RBL doll.” Again, in light of the fact that RBL had already labeled defendant as the abuser, we do not view this therapy as unduly manipulative.

Defendant next argues that the statements cited above should have been excluded to the extent that they included details which exceed the scope of section 115 — 10. Defendant asserts that the charge upon which the State proceeded to trial was that defendant committed an act of penile/anal penetration. Defendant asserts that he was not charged for having committed an offense which included oral/penile or sexual penetration with a fork. We do not agree.

Section 115 — 10 allows the court to admit statements describing “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.” (Ill. Rev. Stat. 1989, ch. 38, par. 115—10(a)(2).) In the present case, defendant was charged for having committed an aggravated criminal sexual assault under section 12 — 14(b)(l). (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).) This section defines an aggravated criminal sexual assault as one where “the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).) The fact which the State put forth in order to support its allegation that defendant committed an aggravated sexual assault was that he committed an act of anal/ penile penetration.

In People v. Thomas (1990), 137 Ill. 2d 500, an indictment specifically alleged that defendant knew a single victim was present when he set fire to a garage. The court held that this allegation satisfied the statutory requirement that the defendant knew or should have known that “one or more persons” were present in the structure. The court also held that it was not error for the trial court to admit evidence that defendant knew or should have known that other people besides the named victim were present and injured. The court reasoned that the identity of the persons injured was not a material element of the offense. Thus, evidence that the defendant should have known others were present was considered to be surplusage. The court noted that it would have been redundant for the State to allege that the defendant should have known that others were present when that fact was implicit in the language of the statute under which the defendant was charged. Thomas, 137 Ill. 2d at 522.

Applying this reasoning to the present case, we hold that the evidence admitted at trial that defendant committed oral/penile penetration and sexual penetration with a fork was consistent with the statute under which defendant was charged. Both of these acts are acts of sexual penetration. We determine that defendant had adequate notice that he was being charged for having committed an act of sexual penetration. Following the reasoning in Thomas, evidence adduced at trial that the defendant committed these other forms of penetration was surplusage in light of the facts contained in the information, alleging that defendant committed an act of aggravated sexual assault.

Defendant’s remaining objections to the hearsay exceptions admitted below are equally unpersuasive. Because the statements were contextually and substantively similar to those already discussed, we see no reason to question their reliability at this time. We are convinced that the trial court carefully considered the reliability of RBL’s various out-of-court statements, and we determine that the admission of this evidence should be affirmed.

Defendant’s final argument is that the trial court abused its discretion in sentencing defendant because the court improperly relied upon RBL’s age as an aggravating factor. We agree.

The general rule is that a factor necessarily implicit in a crime should not be used as an aggravating factor when sentencing for that crime. (People v. Conover (1981), 84 Ill. 2d 400, 404.) To illustrate, in People v. White (1986), 114 Ill. 2d 61, 66, the court held that the victim’s age should not be considered as an aggravating factor in sentencing for a crime where the youth of the victim was an element of the offense of aggravated battery of a child.

In the present case, the trial judge asserted that RBL was under 12 years of age and that this fact was a basis to increase defendant’s sentence. We hold that it was error for the trial judge to make such a determination because the age of the victim is an inherent element of the crime of aggravated criminal sexual assault. Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1).

We must now determine whether remand for sentencing is required. A case must be remanded for resentencing when the reviewing court is unable to determine the weight given to an improperly considered factor. People v. Bourke (1983), 96 Ill. 2d 327, 332.

In White, the court considered the emphasis placed on the improper sentencing factor to be insignificant because the trial court placed primary importance on the need to deter. (White, 114 Ill. 2d at 67.) In Bourke, the court examined the length of the sentence imposed when it considered the weight placed upon the improperly considered factor. Bourke, 96 Ill. 2d at 333.

Here, the trial judge made no indication that it placed primary importance on any single factor. Thus, we are unable to determine the weight given to the improperly considered factor, i.e., the child’s age. Furthermore, the 15-year sentence imposed was substantially above the six-year minimum. Thus, we cannot say that the weight placed on the improperly considered aggravating factor was so insignificant that it did not result in a greater sentence. (Bourke, 96 Ill. 2d at 333.) Accordingly, the sentence must be vacated and the cause remanded for resentencing. This holding should not be construed as a commentary upon what the sentence should be; it simply asserts error due to improper reliance upon an aggravating factor that should not have been considered in the context of sentencing. In all other respects, the judgment is affirmed.

The judgment of the circuit court of Kane County is affirmed in part and vacated in part, and the cause is remanded for resentencing.

Affirmed in part; vacated in part and remanded.

GEIGER and DUNN, JJ., concur.