author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL PRIOLA, Defendant-Appellant.
    Second District
    No. 2—88—1014
    Opinion filed October 2, 1990.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender's Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Michael Priola, was convicted of aggravated criminal sexual abuse (111. Rev. Stat. 1987, ch. 38, par. 12 — 16) and sentenced to a three-year term of imprisonment. On appeal, defendant contends his conviction should be reversed for the following reasons: (1) the trial court refused to instruct the jury that defendant could only be convicted of the above offense if the jury found that he touched the victim’s vaginal area, as charged in the indictment; (2) the evidence was insufficient to support a conviction beyond a reasonable doubt because the victim’s testimony was not clear and convincing and she did not testify that defendant touched her vaginal area; (3) the trial court erred by permitting two investigators who testified to relate excessive details concerning the victim’s corroborative complaints; (4) the trial court violated defendant’s sixth amendment right to a public trial by excluding nonmedia spectators from the trial during the victim’s testimony and the testimony of her brother and sister, who were also alleged victims; (5) the trial court erroneously denied defendant’s motion for a mistrial after the jurors witnessed an emotional reunion between the victim’s sister and her father outside the courtroom; (6) the trial court erred by failing to instruct the jury as to why several charges had been removed from its consideration; and (7) the court erred by permitting the State to ask certain improper questions to the victim’s brother on cross-examination. Defendant also argues that the order directing him to pay $2,250 as reimbursement for the services of the assistant public defender who represented him should be reversed because the trial court failed to consider his financial circumstances and the order notifying the Secretary of State of his conviction should be reversed because automatic revocation of a driver’s license as a result of a sex offense was held unconstitutional in People v. Lindner (1989), 127 111. 2d 174. We affirm in part, modify in part, and reverse in part.

The grand jury returned a six-count indictment against defendant which charged him with sexual offenses against three children, two sisters and their brother. Defendant was only convicted of the charge contained in count IV, which alleged that he “committed the offense of aggravated criminal sexual abuse” in that he “committed an act of sexual conduct with [A.A.], who was under 13 years of age when the act was committed, in that the defendant knowingly touched the vaginal area of [A.A.] for the purpose of the sexual arousal of defendant.” Count IV further alleged that this offense took place sometime between December 26, 1986, and March 3, 1987.

The victim, A.A., was eight years old at the time of the alleged offense and 10 years old at the time of defendant's trial. During the time span mentioned in count IV of the indictment, she resided in Westmont with her mother, stepfather, sister, and brother. A.A. testified that during the period in question, a family friend named Willy, who lived across the street, brought defendant over to her home on a number of occasions. Sometimes, defendant would go into the bedroom of the three children when they were about to go to bed. A.A. testified that defendant would read them bedtime stories and would rub her. She stated that defendant “would rub above my behind and sometimes between my legs.”

When asked to demonstrate on an anatomically correct doll where defendant touched her, A.A. touched the inside portion of the doll’s upper left leg, the lower part of its back, and the top of its buttocks. A.A. also testified that defendant had placed his penis in her mouth and demonstrated this using two anatomically correct dolls. According to A.A., she told her mother and her Aunt Dana what defendant had done. When A.A. later went to stay with her father and stepmother in Moline, she told her stepmother what defendant had done and also told a detective.

A.A. stated on cross-examination that she had talked about what defendant had done to her many times and had given different versions of what happened. She testified further that a portion of her testimony was based upon what others told her had happened, although she also said she was telling the truth. On redirect examination, the prosecuting attorney asked A.A. if she remembered defendant’s penis in her mouth, and she responded “No.” A.A. then stated that she remembered that he did it. When the prosecuting attorney asked if A.A. remembered that this had happened, she responded, “No.” The attorney then asked, “Did it happen?” and A.A. said “Yes.” When the attorney asked for an explanation, A.A. said, “I mean, it did happen but I kind of like forgot about it.”

A.A’s sister, M.A., who was seven years old at the time of trial, testified briefly but was unable to continue and asked to go home. The trial court struck her testimony. Defendant moved for a mistrial because, shortly after M.A. left the witness stand, the jurors were in the hallway outside the courtroom, and they witnessed an emotional reunion between M.A. and her father. After hearing testimony on this motion, the trial court denied it. The trial judge admonished the jurors to disregard anything they had seen outside the courtroom.

Richard Shannahan and Penny Ingersoll both testified about corroborative complaints made by A.A. to them during two interviews on September 29, 1987. Shannahan had been an investigator for the Illinois State Police for approximately 10 years and had spent the previous three years working almost exclusively on homicide and child abuse cases. Ingersoll had worked with the Department of Children and Family Services (DCFS) investigating child abuse and neglect cases for almost seven years. Before permitting them to testify, the trial judge conducted a hearing pursuant to section 115 — 10(a)(2) of the Code of Criminal Procedure of 1963 (Code) (111. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(2)), and determined there were sufficient safeguards of reliability to justify their testimony about A.A.’s corroborative complaints.

On July 23, 1987, A.A., her sister, and her brother went to stay with Mike and Cindy Aubert in Moline because their mother, Andrea Stawicki, had been injured in a swimming pool accident. The Auberts called a DCFS toll-free telephone number in September 1987 to report their belief that their children had been sexually abused. Shannahan interviewed the Auberts on September 27, 1987. Two days later, the Auberts brought the three children into Shannahan’s office in East Moline to speak with Ingersoll and Shannahan.

The two investigators spoke with the Auberts first. The Auberts stated there was a possibility A.A. had been sexually abused by a man named Mike and that A.A. had told them a man had placed his penis in her mouth. The Auberts told the investigators that they thought A.A. had seen pornographic movies.

Ingersoll and Shannahan testified that they then spoke to A.A. alone. They spoke to A.A. for a little while about things that she liked in order to gain her trust and get her to relax. Ingersoll then brought out anatomically correct male and female dolls. Using the dolls, Ingersoll asked A.A. to identify various parts of the male and female anatomy. According to Shannahan, she identified the vagina as the “private area,” but Ingersoll stated A.A. identified it as the vagina. A.A. identified the penis as the “private area” or “dick.”

Both investigators testified that when Ingersoll asked if anyone had touched A.A.’s vaginal area, she replied that someone named Mike had done so. A.A. stated that Mike had touched her, placing his hands both under and over her clothing at various times on her back, buttocks, and her vaginal area. (Shannahan said she used the term “private area” instead of “vaginal area.”) Shannahan testified that A.A. stated that Mike was a friend of Willy’s. According to Shannahan, A.A. stated during this interview that Mike had not placed his penis in her mouth. Ingersoll testified that, during the initial interview, they never asked whether Mike had done so and A.A. did not make such a statement.

After speaking to A.A., Ingersoll and Shannahan spoke to her brother and sister, conducting separate interviews with each. The investigators then brought all three children together for an interview primarily for the purpose of establishing a time frame for the incidents of sexual abuse. During this interview, A.A. stated that Mike had placed his penis in her mouth.

According to Ingersoll, A.A. stated that no one other than Mike had touched her improperly. Ingersoll recalled making such an inquiry, although it was not reflected in her report of the interviews. A.A. also told them she had not seen any pornographic movies.

After the investigators testified, the State rested. Defendant’s motion for a directed verdict was denied as to the two counts involving A.A., but granted as to the counts involving A.A.’s brother and sister. The trial court admonished the jurors that several counts had been withdrawn from their consideration and they were not to concern themselves with why this had occurred. The remaining counts were count I, which charged defendant with the offense of aggravated criminal sexual assault (111. Rev. Stat. 1989, ch. 38, par. 12 — 14) for allegedly placing his penis in A.A.’s mouth, and count IV, which, as we have noted, charged him with aggravated criminal sexual abuse.

The defense presented A.A.’s six-year-old brother, M.A., as a witness. During a pretrial hearing, the trial judge had ruled that M.A. was not competent to testify about events that happened before he was six years old. The alleged acts of sexual abuse against all three children took place before M.A. turned six. M.A. stated that two nights before he testified, he awoke in the middle of the night and played a game with his two sisters. The purpose of the game was to get his or her stories straight. During the game, each of them would relate his or her story with regard to defendant’s alleged sexual abuse. If they made two mistakes, they would have to start over. When A.A. testified earlier, she denied playing this game.

Over a defense objection, the prosecuting attorney asked M.A. if the game was one in which the children were making things up, and M.A. responded, “No.” The prosecutor then asked if the game was about something that happened to M.A., and he said, “Yes.”

A.A.’s mother, Andrea Stawicki, testified that she broke her back in a July 1987 accident and was unable to care for her three children. Her former husband, Mike Aubert, and his wife, Cindy, who lived in Moline, agreed to take care of the children while Andrea was recuperating. Early September 1987, Andrea went to Moline to retrieve the children, but the Auberts would not allow them to leave. Andrea was able to pick up the children later, however, and A.A. was in her custody at the time of trial.

Andrea testified that on March 3, 1987, she had a conversation with her three children and her sister, Dana. During this conversation, A.A. told Andrea that defendant had touched her in ways she did not think were right. Andrea stated that she reported this to the Westmont police.

The jury was unable to reach a verdict on the aggravated criminal sexual assault count, and the court declared a mistrial as to that count. The jury found defendant guilty of aggravated criminal sexual abuse with regard to A.A. The trial court subsequently sentenced defendant to a three-year term of imprisonment, and he now appeals.

Defendant argues that certain instructions given by the trial court would have enabled the jury to convict him of aggravated criminal sexual abuse on the basis of conduct not charged in the indictment, which alleged that he committed the above offense in that he “knowingly touched the vaginal area of [A.A.] for the purpose of the sexual arousal of defendant.” Defendant complains of the following three instructions:

“A person commits the offense of aggravated criminal sexual abuse when he was 17 years of age or older and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed.” See Illinois Pattern Jury In- . structions, Criminal, No. 11.38 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989)).
“The term ‘sexual conduct’ means any intentional or knowing touching or fondling by the accused either directly or through the clothing of any part of the body of a child under 13 years of age for the purpose of sexual gratification or arousal of the victim or the accused.” See IPI Criminal 2d No. 11.64 (Supp. 1989).
“To sustain the charge of aggravated criminal sexual abuse, the State must prove the following propositions:
First: That the defendant committed an act of sexual conduct with [A.A.], and
Second: That the defendant was 17 years of age or older; and
Third: That [A.A.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” See IPI Criminal 2d No. 11.40 (Supp. 1989).

Defendant objected to the latter two instructions on the basis that they did not include the specific conduct with which he was charged, touching the vaginal area of A.A. The trial court gave the instructions over defendant’s objections.

Defendant also contends that the evidence presented was insufficient to support his conviction beyond a reasonable doubt because there was no evidence that he touched A.A.’s vaginal area, the only specific act alleged in the indictment. We shall consider defendant’s instructional argument and the above reasonable doubt argument together.

In People v. Thingvold (1978), 66 Ill. App. 3d 1002, the information charged defendant with committing the offense of indecent liberties with a child in that he “lewdly fondled or touched the private parts of the victim.” (Thingvold, 66 Ill. App. 3d at 1004.) Defendant argued on appeal that his conviction should be reversed because there was no evidence that he lewdly fondled or touched the victim’s private parts as alleged in the information.

Defendant contends that the above argument was rejected in Thingvold because there was evidence that the defendant in that case did touch the victim’s private parts. We disagree. This court stated as follows in rejecting the above argument in Thingvold:

“While defendant’s statement related only to the act of kissing between the victim and the defendant, both occurrence witnesses testified that while the victim lay sideways across defendant’s lap, defendant’s left arm was moving in a rapid rubbing or punching motion. Further, Mrs. Simms testified that the rubbing occurred on the victim’s dress, below her waist and above her knees. Neither contact with a sex part nor actual physical injury to the child is essential to support a charge under the statute.” 66 Ill. App. 3d at 1004-05.

The court’s summary of the evidence in Thingvold reveals there was no specific testimony that the defendant touched the victim’s private parts. The last sentence in the above quotation would have hardly been necessary had there been such evidence. Instead, we believe the conclusion that there was no fatal variance between the information and the facts proved at trial is implicit in Thingvold. A variance between the facts alleged in the charging instrument and the proof at trial is not fatal if the facts in question are not essential elements of the offense charged. (People v. Thomas (1990), 137 Ill. 2d 500, 522.) As this court stated in Thingvold, contact with the victim’s private parts was not essential to support a charge of indecent liberties with a child (Thingvold, 66 Ill. App. 3d 1002); therefore, the phrase “the private parts” in the Thingvold information was mere surplusage which could have been disregarded. (See Thomas, 137 Ill. 2d at 522.) Therefore, even though there was no evidence in Thingvold specifically establishing that the defendant touched the victim’s private parts, the testimony that he kissed and rubbed the victim was sufficient to support his conviction beyond a reasonable doubt.

The case at bar is quite similar to Thingvold, and that decision is controlling here. In so holding, we first note that count IV of the indictment charged defendant with committing the offense of aggravated criminal abuse by committing an act of sexual conduct with a victim who was under 13 years of age, while defendant was 17 years of age or older (see Ill. Rev. Stat. 1989, ch. 38, par. 12— 16(c)(l)(i)). Since “sexual conduct” is defined, in part, as the intentional or knowing touching or fondling of any part of the body of a child under 13 years of age for the purpose of sexual gratification or arousal of the accused or the victim (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e)), it was not necessary to allege in the charging instrument in this case that defendant touched a specific part of the victim’s body. Because the allegation that defendant touched A.A. “in the vaginal area” was not an essential element of the charged offense, the words, “in the vaginal area,” can be disregarded as mere surplusage. (See Thomas, 137 Ill. 2d 522.) Accordingly, under Thingvold, evidence that defendant touched any part of A.A.’s body for purposes of his sexual gratification or arousal would have been sufficient to support his conviction. Defendant’s argument that his conviction should be reversed because there was no evidence he touched A.A.’s vaginal area must, therefore, be rejected.

The Thomas case, recently decided by our supreme court, provides further support for our conclusion. In Thomas, count IX of the indictment charged the defendant with committing the offense of aggravated arson in that he damaged a certain building by means of fire “knowing that Sophie Dudek was present therein, in violation of Illinois Revised Statutes 1985, ch. 38, par. 20 — 11.” Defendant argued that the trial court erred by allowing the introduction of evidence that defendant should have been aware that an elderly couple named the Smialeks was present in the building at the time of the fire because the indictment stated only that defendant knew Sophie Dudek was present. In rejecting this argument, our supreme court noted that the indictment charged defendant generally with violating the aggravated arson statute, and the court further stated as follows:

“The fact that the indictment alleged that defendant knew that Sophie Dudek was present therein did not preclude evidence that defendant had the same mental state as to others. The identity of the person known to be in the garage is not a material element of the offense and the allegation may be considered surplusage.” Thomas, 137 Ill. 2d at 522.

The court went on to conclude in Thomas that evidence the defendant should have known the Smialeks were present was admissible and relevant in determining whether he had the requisite mental state for the offense of aggravated arson. (Thomas, 137 Ill. 2d at 522-23.) Similarly, in the case at bar, evidence that defendant touched A.A. in areas other than her vaginal area was admissible, and the jury could have properly found him guilty even if there was no evidence of touching the vaginal area. Defendant’s argument that the evidence was insufficient to support his conviction because of the alleged lack of such evidence must therefore fail, as must his assertion that the jury should have been instructed that he could only be convicted if the jury determined that he touched A.A.’s vaginal area.

Defendant contends that such a result would have the practical effect of sanctioning improper amendments to indictments. We disagree and note that the Thomas case also involved a grand jury indictment. Therefore, it is apparent that disregarding surplusage in a grand jury indictment, as the court did in Thomas and as we do here, does not constitute the improper amendment of an indictment.

Because the trial court’s instructions would have permitted the jury to convict defendant absent any evidence of a touching in the vaginal area, we have assumed, arguendo, up until this point that there was no such evidence. We feel compelled to point out, however, that A.A. stated twice during her testimony that defendant had touched “between her legs,” which was testimony establishing touching in the vaginal area. Furthermore, when A.A. was asked to point out on an anatomically correct doll the areas defendant had touched, she pointed to the inside of the doll’s upper left leg, an area in close proximity to the vagina. Defendant’s argument that there was no evidence he touched A.A.’s vaginal area is without merit.

Defendant also argues that the evidence was insufficient to support his conviction of aggravated criminal sexual abuse because A.A.’s testimony was not clear and convincing, and it was not corroborated by other evidence. Ordinarily, when a reviewing court is faced with a challenge to the sufficiency of the evidence, the determinative question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) A conviction of aggravated criminal sexual abuse will be upheld if the testimony of the complaining witness is clear and convincing or the testimony is corroborated by some other evidence, fact, or circumstance of the case. (People v. Thompson (1990), 198 Ill. App. 3d 417, 419; People v. Daniels (1987), 164 Ill. App. 3d 1055, 1073.) The testimony of the complaining witness need not be uncontradicted, unimpeached, crystal clear, or perfect in order to be considered clear and convincing. (Daniels, 164 Ill. App. 3d at 1078.) Inconsistencies or shortcomings in the victim’s testimony will ordinarily present a question of credibility for the trier of fact to resolve. (Thompson, 198 Ill. App. 3d at 419.) A reviewing court will not reverse a conviction of aggravated criminal sexual abuse unless the evidence is so improbable or unsatisfactory that a reasonable doubt of defendant’s guilt exists. 198 Ill. App. 3d at 419; People v. Server (1986), 148 Ill. App. 3d 888, 895.

A complainant’s testimony will be considered clear and convincing if it is consistent and any discrepancies do not detract from its reasonableness. (People v. Findlay (1988), 177 Ill. App. 3d 903, 911; People v. Escobedo (1986), 151 Ill. App. 3d 69, 81-82.) In Findlay, the complaining witness presented testimony concerning six incidents of alleged sexual abuse by defendant. Defendant only faced charges relating to three of these incidents. Defendant presented evidence impeaching and discrediting complainant’s story with regard to four of the six incidents. As a result, the trial court found defendant not guilty of two of the three counts. The court also found the complainant’s testimony as to one of the alleged incidents clear and convincing and therefore found defendant guilty of one count of aggravated criminal sexual abuse. Findlay, 177 Ill. App. 3d at 907-10.

This court reversed in Findlay, determining that the impeachment and discrediting of complainant’s testimony regarding four of the purported incidents of sexual abuse “seriously and substantially” detracted from complainant’s story as a whole. (177 Ill. App. 3d at 912.) Additionally, this court noted there was testimony impeaching and discrediting complainant’s testimony as to the count of which defendant was found guilty. (177 Ill. App. 3d at 913.) We therefore determined that complainant’s testimony was not clear and convincing. 177 Ill. App. 3d at 913.

A.A.’s testimony concerning the aggravated sexual abuse charge was consistent. She testified that on several occasions defendant went into the bedroom she shared with her brother and sister, ostensibly to read a bedtime story. On these occasions, defendant rubbed her back and buttocks and also rubbed between her legs. The two investigators testified that A.A. gave them the above version of what had happened to her. Furthermore, A.A.’s mother, Andrea Stawicki, testified that on March 3, 1987, A.A. reported to her that defendant was touching A.A. in improper ways.

The instant case is somewhat analogous to Findlay because, in both cases, the complainant’s testimony concerning an alleged offense of which defendant was not convicted was impeached. In the present case, A.A.’s testimony that defendant placed his penis in her mouth was impeached by her admission that she did not remember defendant doing this and by her failure to mention it during her initial interview with the investigators on September 29, 1987.

In Findlay, however, the pervasiveness of the impeachment of complainant’s testimony concerning four of the six alleged incidents of sexual abuse was so substantial as to completely destroy her credibility as a witness. (See Findlay, 177 Ill. App. 3d at 912.) The same is not true here. While A.A. did not mention during the initial interview with the investigators or the March 3, 1987, discussion with her mother that defendant had placed his penis in her mouth, the failure of a young sexual assault victim to make a prompt complaint is easily understandable because of the natural sense of shame, fear, revulsion, and embarrassment felt by children under such circumstances. (People v. Lybarger (1990), 198 Ill. App. 3d 700, 702.) This could also explain A.A.’s testimony that she did not remember defendant’s penis in her mouth and that she forgot about this.

Therefore, even though A.A.’s testimony about the aggravated criminal sexual assault charge was impeached, her testimony relating to this charge was not entirely discredited, as was the complainant’s testimony relating to four purported incidents of sexual abuse in Findlay. We therefore conclude that A.A.’s inconsistent statements and testimony regarding whether defendant placed his penis in her mouth did not seriously and substantially detract from her story as a whole as did the problems with complainant’s testimony in Findlay. The questions about A.A.’s credibility raised as a result of these inconsistent statements were a matter for the jury to resolve; A.A.’s testimony regarding the touching incidents was not discredited by those inconsistencies to the extent it must be disregarded as a matter of law.

Defendant also points to other evidence tending to discredit A.A.’s testimony in support of his argument that her testimony was not clear and convincing. We believe that any shortcomings in A.A.’s testimony pointed out by this evidence presented credibility questions for the jury to resolve; they did not completely discredit her testimony as a matter of law. A.A. stated on cross-examination that a portion of her testimony was based upon what others told her had happened. The only specific part of her testimony that A.A. stated she did not remember occurring, however, was defendant placing his penis in her mouth. As we have previously stated, it is quite possible that A.A.’s sense of embarrassment and revulsion explains why she forgot about this alleged incident. Moreover, the testimony of Andrea Stawicki and the two investigators concerning A.A.’s corroborative complaints contains no indication that they coerced A.A. into saying defendant had touched her in improper ways. While defendant also points to the testimony of A.A.’s younger brother, M.A., that the three children played a game shortly before trial in order to rehearse their testimony, A.A. denied taking part in such a game. Furthermore, according to M.A.’s testimony, the participants in the game were not fabricating the stories they told.

Defendant also points to inconsistencies between the testimony of A.A. and Andrea Stawicki. One of these is that Andrea testified A.A. had seen a movie on child sexual abuse while A.A. denied this. Defendant also emphasizes her testimony that she did not leave defendant alone with her children. Andrea did testify, however, about one incident in which defendant was alone with the children in their bedroom. Additionally, it is apparent that when A.A. told Andrea that defendant had touched her improperly, Andrea believed her, since she reported the allegation to the Westmont police. Andrea’s testimony did not discredit A.A.’s to the extent that A.A.’s testimony had to be disregarded as a matter of law.

We have considered other alleged shortcomings in A.A.’s testimony cited by defendant and conclude that these too presented credibility questions to be resolved by the jury. A.A. consistently maintained in her testimony and her conversations with the two investigators that defendant on several occasions went into the children’s bedroom, would sometimes read them bedtime stories, and ended up rubbing her back, buttocks, and between her legs. A.A. told her mother that defendant touched her in ways that were not right. Her testimony was clear and convincing. While there were shortcomings in her testimony to be considered by the jury, these shortcomings did not render her testimony unreasonable or improbable as was the case in Findlay. The evidence was sufficient to support defendant’s conviction beyond a reasonable doubt.

Defendant next contends that Officer Shannahan and Investigator Ingersoll were permitted to provide excessive detail in their testimony concerning A.A.’s corroborative complaints, including details concerning the identity of the assailant and the areas of A.A.’s body that he touched. At the time of the alleged offenses, section 115 — 10 of the Code of Criminal Procedure of 1963 stated as follows:

“In a prosecution for a sexual act perpetrated upon a child under the age of 13 ***, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” (111. Rev. Stat. 1985, ch. 38, par. 115 — 10.)

Under this version of section 115 — 10, admission of testimony containing details of a corroborative complaint, including the identity of the perpetrator, other than those necessary to identify the incident as the one before the court was error. People v. Baggett (1989), 185 Ill. App. 3d 1007, 1017.

Section 115 — 10 was amended effective January 1, 1988. The statute now reads, in part, as follows:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13 ***, 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.” 111.
Rev. Stat. 1989, ch. 38, par. 115 — 10.

It is clear from the record that the trial judge applied the newer version of the statute, since a hearing outside the jury’s presence was held to determine the reliability of Shannahan’s and Ingersoll’s hearsay testimony, a procedure not required under the former version of the statute. Defendant argues that the trial court erred by applying the more recent version of the statute because that version was not in effect at the time of the alleged offenses. Defendant further maintains that under the earlier version of the statute, the testimony of Shannahan and Ingersoll that A.A. told them she had been touched in certain areas of her body, including the vagina, and that this had been done by a man named Mike was improper.

Defendant failed to present these arguments at trial or in his post-trial motion. Ordinarily, such failures result in a waiver of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) Defendant argues, however, that this issue should be reviewed under the plain-error doctrine (107 Ill. 2d R. 615(a)). The purpose of the plain-error rule is to correct serious errors which may have denied the accused a fair trial. (People v. Sommerville (1990), 193 Ill. App. 3d 161, 171.) The doctrine will be applied in criminal cases if the evidence was closely balanced or the alleged error was so serious that it deprived defendant of a fair trial. Sommerville, 193 Ill. App. 3d at 171.

Although we have concluded that A.A.’s testimony was clear and convincing with regard to the aggravated criminal sexual abuse allegation, the primary source of corroboration for her testimony came from Shannahan’s and Ingersoll’s testimony concerning her corroborativo complaint. There was no physical or medical evidence that A.A. had been sexually abused, let alone that defendant was the source of the abuse. Under these circumstances, if the hearsay testimony of the two investigators was improperly admitted, this would have denied defendant a fair trial. The plain-error rule is therefore applicable.

In People v. Morton (1989), 188 Ill. App. 3d 95, as in the present case, the alleged sexual offenses against ,a child took place prior to January 1, 1988, the effective date of the most recent version of section 115 — 10, but defendant’s trial took place after that date. The court concluded that since section 115 — 10 concerns trial procedures rather than substantive matters, the more recent version of the statute applied at trial. Morton, 188 Ill. App. 3d at 102.

We agree with the conclusion of the court in Morton on this issue. Defendant correctly points out that a law is ex post facto if it makes criminal an act that was not criminal at the time it was done, increases the punishment for an offense previously committed, or alters the legal rules of evidence to make a conviction easier. (People v. Shumpert (1989), 126 Ill. 2d 344, 351.) We disagree, however, with defendant’s contention that the newest version of section 115— 10 makes conviction easier. Although the former version of section 115 — 10 did not allow as much testimony concerning the specific details of a corroborative complaint as the present version permits, testimony that a corroborative complaint had been made was always admissible if the child testified. This is no longer the case. Such testimony is now admissible only if the trial court determines in a hearing outside the jury’s presence that sufficient safeguards of reliability exist. (111. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)(1).) Therefore, the more recent version does not necessarily make convictions easier; in some instances it makes it more difficult to obtain a conviction by excluding evidence of corroborative complaints that would have been admissible under the prior version of section 115 — 10. Accordingly, we are satisfied that applying the existing version of section 115 — 10 to trials in which the alleged offenses took place prior to January 1, 1988, does not violate the constitutional prohibitions against ex post facto laws. The trial court acted properly in applying the existing version of section 115 — 10 in this case.

Defendant also contends that even if the existing version of section 115 — 10 was applicable, the two investigators should not have been able to testify that A.A. identified her assailant as a man named Mike because the statute does not specifically allow hearsay testimony about the identity of the alleged offender. In Morton, the court rejected a similar argument, noting that section 115 — 10(a)(2) provides for the admissibility of “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.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(2); Morton, 188 Ill. App. 3d at 102-03.) The court stated, “Clearly, an identification of the perpetrator of an ‘act’ is a ‘detail pertaining’ to that act.” (188 Ill. App. 3d at 103.) We agree and reject defendant’s contention to the contrary.

Defendant also contends that, assuming the applicability of the most recent version of the statute, the investigators should not have been permitted to testify that A.A. told them defendant had touched her vagina because A.A. did not testify at trial that defendant had done this. Defendant maintains that this violates his sixth amendment confrontation right because his conviction could have been based solely upon the investigators’ hearsay testimony. Since, as we have previously indicated, A.A. testified that defendant touched her between her legs, the testimony of the investigators was not the sole evidence that defendant touched A.A.’s vaginal area. We therefore reject defendant’s argument.

Defendant next argues that the trial court’s order directing that the trial be closed to nonmedia spectators during A.A.’s testimony violated his sixth amendment right to a public trial. The trial judge issued this order pursuant to section 115 — 11 of the Code, which states that in a criminal prosecution for certain sexual offenses

“where the alleged victim of the offense is a minor under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media.” Ill. Rev. Stat. 1987, ch. 38, par. 115 — 11.

The United States Supreme Court has recognized that criminal defendants have a qualified right to a public trial under the sixth amendment. (Waller v. Georgia (1984), 467 U.S. 39, 46, 81 L. Ed. 2d 31, 38, 104 S. Ct. 2210, 2215.) While the right to an open trial may give way in certain instances to other rights and interests, such circumstances are rare, and the balance of interests must be struck with great care. (Waller, 467 U.S. at 45, 81 L. Ed. 2d at 38, 104 S. Ct. at 2215.) Closure of a trial or portion thereof is only justified if the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced, the closure is not broader than necessary to protect said interest, the trial court considers reasonable alternatives to closing the proceeding, and the trial court makes findings which are adequate to support closure. 467 U.S. at 48, 81 L. Ed. 2d at 39, 104 S. Ct. at 2216.

It is apparent that the Waller criteria were not met in this case. The trial court made no findings in support of closure, and the record contains no indication that the trial judge considered alternatives to closing the proceeding during A.A.’s testimony. Defendant, however, did not object to the order closing the trial to nonmedia spectators during the testimony of A.A., her sister, and brother, nor did he raise this issue in his post-trial motion. As we have pointed out, this ordinarily results in waiver of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) Citing People v. Bryant (1989), 128 Ill. 2d 448, defendant argues that this issue is not waived.

In Bryant, our supreme court stated that “a constitutional challenge to a statute can be raised at any time,” including for the first time on appeal. (Bryant, 128 Ill. 2d at 454.) Thus, to the extent defendant is challenging the constitutionality of section 115 — 11, his argument is not waived, and we shall consider whether this statute violates the sixth amendment right of criminal defendants to public trials.

As we have seen, section 115 — 11 states that trial judges may close the portion of a criminal trial for certain sexual offenses in which a victim under 18 is testifying; it does not require closure under such circumstances. Statutes are presumed to be constitutional and, if possible, will be interpreted so as to avoid an unconstitutional construction. (People v. Orth (1988), 124 Ill. 2d 326, 334; People v. Geever (1988), 122 Ill. 2d 313, 324.) Therefore, we interpret section 115 — 11 as allowing a trial judge to exercise his or her discretion in favor of closing a trial for the sexual offenses set forth therein while a victim under 18 years of age testifies only if the Waller criteria are satisfied. In the context of section 115 — 11, this would mean the State must advance an overriding interest that is likely to be prejudiced if the trial is not closed to nonmedia spectators during the victim’s testimony; there must be no less restrictive measure which will eliminate the prejudice; the trial court must consider reasonable alternatives to closure; and the court must make findings adequate to justify the closure. (See Waller, 467 U.S. at 48, 81 L. Ed. 2d at 39, 104 S. Ct. at 2216.) Section 115 — 11, as we have construed it, satisfies the sixth amendment concerns expressed in Waller. Since there is a reasonable construction of that provision which does not offend the constitution, section 115 — 11 is constitutional (see People v. Geever (1988), 122 Ill. 2d 313, 324), and we reject defendant’s challenge to that statute.

Since the trial judge did not comply with the Waller criteria, as we have previously indicated, in closing the trial to nonmedia spectators during A.A.’s testimony, the judge also failed to comply with section 115 — 11 as we have interpreted it. Defendant waived this issue for purposes of appeal by failing to object at trial or in his post-trial motion. We decline to apply the plain-error rule in this case. The rule is only applied if the evidence at trial was closely balanced or the error was so serious that it deprived defendant of a fair trial. People v. McManus (1990), 197 Ill. App. 3d 1085, 1099.

Here, the evidence was not closely balanced; A.A.’s testimony that defendant touched her buttocks,- back, and between her legs on several occasions was unrebutted. That testimony was corroborated by the investigators’ testimony that A.A. related this version of events to them on September 29, 1987, and Andrea Stawicki’s testimony that A.A. stated on March 3, 1987, that defendant had touched her in improper ways.

Furthermore, this error did not deprive defendant of a fair trial. The purposes served by requiring public trials are encouraging witnesses to come forward, discouraging perjury, and helping to ensure that the judge and prosecutor carry out their duties in a responsible manner. (Waller, 467 U.S. at 46, 81 L. Ed. 2d at 38, 104 S. Ct. at 2215.) Since most of the trial was open to the public and the media was not excluded from any portion of the trial, we do not believe these objectives were seriously compromised by the trial court’s action. Accordingly, we decline to apply the plain-error rule here.

Defendant next argues that reversal is required because the jurors, while outside the courtroom, witnessed an emotional reunion between A.A.’s younger sister, M.A., and her father, and the trial court refused to grant a mistrial on this basis. A mistrial is not required if the jury is present during a genuine emotional outburst by a witness inside the courtroom. (People v. Sambo (1990), 197 Ill. App. 3d 574, 583-84.) The decision whether to order a mistrial under such circumstances is within the trial court’s discretion. (Sambo, 197 111. App. 3d at 584.) We can discern no reason why these principles should not also apply to the present situation, in which the jurors were present when such an outburst occurred outside the courtroom. Furthermore, the trial judge instructed the jurors to disregard anything that took place outside the courtroom. The motion for a mistrial was properly denied.

Defendant also contends that after his motion for a directed verdict was granted as to three counts involving A.A.’s brother and sister and the State nol-prossed another count, the jury should have been told by the trial court that defendant had been acquitted on three counts and the State had nol-prossed another. Instead, the trial court admonished the jurors that these four counts, all of which involved alleged abuse of A.A.’s brother and sister, had been withdrawn from their consideration and they were not to be concerned with why this had occurred. The court also told the jurors that they should consider the two remaining charges independently as though no other charges had been brought.

Since defendant did not object to the above admonition or raise this issue in a post-trial motion, he has waived it for purposes of review. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) As we have already indicated, the evidence in this case was not closely balanced. Since we do not believe the alleged error deprived defendant of a fair trial, we decline to apply the plain-error rule.

In so holding, we are cognizant that the court chose to apply the plain-error rule to a similar contention in People v. Flynn (1988), 172 Ill. App. 3d 318. In Flynn, the State nol-prossed one of the five charges against defendant during the trial. During its deliberations, the jury inquired of the court as to why there were now only four counts pending. The trial judge responded that this was a legal matter and the jurors should deliberate on the four counts before them. (Flynn, 172 Ill. App. 3d at 323.) On appeal, the court considered this matter under the plain-error doctrine and held that the trial court’s failure to respond to this and one other jury question constituted reversible error. (172 Ill. App. 3d at 323-24.) The court noted possible prejudice in that the jury could have inferred that defendant pleaded guilty to the missing charge or the trial court displayed leniency. 172 Ill. App. 3d at 324.

In the case at bar, unlike Flynn, such jury confusion was highly unlikely. The jurors made no inquiry about why the four charges were dropped, unlike Flynn. Additionally, it should have been apparent to the jurors that no evidence was presented relating to the charges that defendant sexually abused and assaulted A.A.’s younger brother and sister and that this was why those charges were no longer pending. Even if there was error in this context, it would not have deprived defendant of a fair trial. Since we have already determined the evidence in this case was not closely balanced, we decline to review this argument under the plain-error rule.

Defendant has also waived his argument that the prosecutor asked improper questions of A.A.’s brother on cross-examination by failing to raise this issue in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) Defendant asserts that the questions were improper because they elicited responses that the game the children had played two nights before trial in which they related their stories of sexual abuse was about something that had actually happened to them, and the children were not making things up. A.A.’s brother had been found incompetent to testify about anything that occurred before he was six years old, and the alleged sexual abuse against the three children in this case all took place before he turned six. A.A.’s brother, however, only testified on cross-examination that the game was about something which actually happened; he did not go on and relate the stories of sexual abuse that were told during the game. Accordingly, we believe there was no error here, and even if there was, it would not have deprived defendant of a fair trial. We therefore decline to invoke the plain-error rule.

Defendant next argues that the trial court erred by ordering him to reimburse Du Page County in the amount of $2,250 for the services of the public defender pursuant to section 113 — 3.1 of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 113 — 3.1). Defendant maintains this was error because the record showed he had no current or foreseeable ability to pay this amount. In People v. Hammer (1983), 121 Ill. App. 3d 133, the court deemed a similar argument waived when defendant failed to object to the reimbursement order at trial. (Hammer, 121 Ill. App. 3d at 138.) In the instant case, defendant not only failed to object, he actually consented to reimburse the county in the amount of $2,225. Defendant has therefore waived this issue for review. Since it is clear from the record that defendant and the State agreed to the entry of a reimbursement order in the amount of $2,225, and the trial judge intended to enter this order in conformance with the parties’ agreement, we will modify the amount in the reimbursement order from $2,250 to $2,225.

Defendant’s final contention is that the trial court order instructing the clerk of the court to send a copy of defendant’s conviction to the Secretary of State’s office pursuant to section 6 — 205(b)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6— 205(b)(2)) should be reversed because that provision, which requires the Secretary of State to revoke the driver’s license of any person convicted of aggravated criminal sexual abuse and certain other sex offenses, was held unconstitutional in People v. Lindner (1989), 127 Ill. 2d 174, 183. The State argues this is not necessary because the trial court did not actually order revocation; it only ordered that the conviction be reported to the Secretary of State. Section 6 — 205(b)(2) did not give the Secretary of State’s office any discretion, however; once the office was notified of an aggravated criminal sexual abuse, it was required to revoke the offender’s license. Thus, we construe the trial court’s order as an order to revoke defendant’s driver’s license, which must be reversed under Lindner.

In sum, defendant’s conviction is affirmed. The order directing defendant to reimburse the county in the amount of $2,250 for the public defender’s services is modified, with the amount changed to $2,225, and the order that the conviction be reported to the Secretary of State’s office so his driver’s license will be revoked is reversed.

Affirmed in part; modified in part; and reversed in part.

UNVERZAGT, P.J., and GEIGER, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    ILLINOIS BELL TELEPHONE COMPANY, Appellant, v. THE ILLINOIS COMMERCE COMMISSION, Appellee.—THE PEOPLE ex. rel. OFFICE OF PUBLIC COUNSEL et al., Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Appellees.
    Second District
    Nos. 2-89-1228, 2489-0914, 2-89-1308, 2-89-1350, 2-90-0037, 2-90-0039, 2-90-0042, 2-90-0043, 2-90-0072 cons.
    Opinion filed October 3, 1990.

      John F. Ward, Jr., and Henry T. Kelly, both of O’Keefe, Ashenden, Lyons & Ward, of Chicago (Michael W. Ward, of counsel), for appellant Independent Coin Payphone Association.
    Deborah Senn, of Citizens Utility Board, Douglas W. Trabaris, and Henry T. Kelly, all of Chicago, and Jean Roche, of Citizens Utility Board, of Evergreen Park, for appellant Citizens Utility Board.
    Neil F. Hartigan, .Attorney General, of Springfield, Arnstein & Lehr, of Barrington, Donald E. Glickman, Hilda C. Contreras, and James D. Roberts, all of Rudnick & Wolfe, Allen W. Cherry, of Legal Assistance Foundation, Sheila Macmanus, and Paul J. Matón, all of Chicago, and Andrew D. Lipman, of Swidler & Berlin, of Washington, D.C. (Robert W. Cushing and Jeff Deutschman, Assistant Attorneys General, Thomas H. Rowland, Assistant State’s Attorney, and Bernard Rane, Assistant Corporation Counsel, of counsel), for appellant Public Utilities Division.
    Stephen J. Moore and Karen L. Lusson, both of Office of Public Counsel, of Chicago, for appellant Office of Public Counsel.
    Neil F. Hartigan, Attorney General, of Springfield (John P. Kelliher and Kathleen Nolan, Special Assistant Attorneys General, of Springfield, and Clyde Kurlander, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    Neil F. Hartigan, Attorney General, of Springfield (Karen L. Lusson, Stephen J. Moore, and Ana C. Cusack, Special Assistant Attorney General, of Chicago, of counsel), for the People.
    Louise A. Sunderland, John C. Gockley, Richard N. Janney, and Lincoln V. Janus, all of Illinois Bell Telephone Company, of Chicago (Edward A. Butts, of counsel), for Illinois Bell Telephone Company.
   JUSTICE REINHARD

delivered the opinion of the court:

These consolidated appeals are taken from an order of the Illinois Commerce Commission (the Commission) issued in response to rate sheets filed by Illinois Bell Telephone Company (Bell) seeking the adoption of new and restructured telephone rates. The order adopted a new rate schedule incorporating a usage sensitive service (USS) pricing structure and a modified regulatory plan (MRP). The Commission denied all motions for rehearing.

The nine appellants before this court are: Bell, which is also an appellee in seven of the eight appeals brought by the other appellants; the Citizen’s Utility Board (CUB); the City of Chicago; Community Action for Fair Utility Practice; the People of the State of Illinois ex rel. the Office of Public Counsel (OPC); the People of the State of Illinois ex rel. Attorney General Neil Hartigan; the People of Cook County; MCI Telecommunications Corporation; and the Independent Coin Payphone Association. All of the appellants except Bell are hereinafter referred to as the interveners as that was their status in the proceeding below. OPC’s appeal was originally filed in the Fourth District of the Appellate Court but was transferred to this court. The Commission is an appellee in each separate appeal.

The interveners collectively raise nine issues on appeal: (1) whether the Commission failed to meet its statutory duty to set reasonable rates; (2) whether the Commission had the authority to adopt the MRP as part of its rate-setting process; (3) whether the refund mechanism of the MRP constitutes retroactive ratemaking; (4) whether the Commission’s order was supported by substantial evidence; (5) whether the Commission violated its own rules by adopting a two-year rate plan based on data from a single test year; (6) whether the Commission erred by allowing Bell to recover certain operating expenses; (7) whether the Commission violated the interveners’ due process rights by accepting data from Bell after the close of evidence; (8) whether the Commission’s reliance on Bell’s cost-of-service studies improperly allowed for cross-subsidization of services; and (9) whether the Commission’s decision to allow an expansion of USS was improper and not supported by substantial evidence.

In its appeal from the Commission’s order, Bell raises three issues: (1) whether the Commission’s finding of the proper rate of return Bell should be allowed to earn was supported by substantial evidence; (2) whether the Commission improperly delegated its responsibility to determine the rate at which Bell’s equipment should be depreciated; and (3) whether the Commission’s decision to disallow recovery of certain operating expenses was supported by substantial evidence.

This case commenced on December 13, 1988, when Bell filed new rate sheets with the Commission. Bell’s proposal to the Commission can be divided into three main elements. First, Bell proposed the adoption of a new rate schedule along with suggested deviations from the traditional manner in which the Commission sets rates. Second, Bell presented certain revenue and expense information to the Commission as a part of the test-year analysis utilized in setting rates. Third, Bell proposed the adoption of USS in the portion of its service area designated the Greater Illinois Area (GIA).

Section 9 — 101 of the Public Utilities Act requires the Commission to determine that the rates charged for public utility services are “just and reasonable.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9— 101.) The fundamental purpose of providing a particular rate schedule is to generate a rate of return which the Commission determines is just and reasonable and which will enable the utility to continue operation at an acceptable level of operating income. (Cerro Copper Products v. Illinois Commerce Comm’n (1980), 83 Ill. 2d 364, 371, 415 N.E.2d 344, 349.) The traditional method of setting rates in this manner begins with the threshold determination of what constitutes a reasonable return on equity (ROE) for the utility; rates are then set at levels designed to produce the target ROE. The parties also refer to this traditional approach as the “pick-a-point” method.

Bell’s proposal differed from the traditional approach in that it asked the Commission to select a range of acceptable ROE instead of a single target ROE. Under Bell’s proposal, which was to be effective through 1991, rates would be set to achieve a target 14% ROE. As part of its proposal, Bell designated certain core (noncompetitive) and noncore (more competitive) services. Bell would agree to forgo filing for any additional tariffs on designated core services so long as its earnings during the period in question did not fall below a designated “baseline” of 13% ROE.

The central novelty of Bell’s proposal was the portion designated the “Incentive Plan,” which dealt with the disposition of any earnings in excess of the target ROE. Revenues between 14% and 15% ROE would accrue to Bell. However, for those revenues exceeding the threshold 15% ROE, Bell would keep half of the excess revenue and refund the rest to the ratepayers by way of a yearly refund.

Fred Konrad, Bell’s assistant vice-president-regulatory, presented Bell’s plan to the hearing examiners assigned by the Commission. Konrad noted the existence of increased competition in the telecommunications industry during the last 20 years and stated that the industry would be predominantly competitive in the long run. In Konrad’s view, the increase in competition requires a move toward different regulatory techniques. Such techniques should protect consumers of monopolistic telecommunications services via direct price regulation while providing increased flexibility in the regulation of more competitive services. Konrad testified that Bell’s Incentive Plan met these objectives in two regards. First, because Bell would voluntarily undertake not to file for an increase in rates for core services as long as its ROE remained above 13%, price stability in noncompetitive markets would be promoted. Second, the earnings-sharing feature of Bell’s proposal would allow the utility to reap the benefits of additional earnings produced as a result of Bell’s increases in efficiency, so long as Bell shares these earnings with ratepayers.

Dr. Marvin H. Kahn, an economist, examined Bell’s proposed Incentive Plan on behalf of CUB. Kahn questioned whether the Incentive Plan would lead Bell to make improvements in efficiency which would result in benefits for ratepayers. Kahn stated that virtually all of Bell’s markets are currently noncompetitive and would remain so over the next 10 years. Because he felt that the Incentive Plan failed to give Bell and ratepayers equal treatment, Kahn recommended that the plan be rejected.

W. Page Montgomery, vice-president of Economics and Technology, Inc., testified on behalf of Cook County that Bell has access to superior forecasting data which would enable it to control the outcome of the Incentive Plan. In addition, Montgomery stated that Bell had not demonstrated the increase in competition, either presently or in the future, which Bell gave as the justification for the Incentive Plan. Montgomery recommended that an alternative regulatory plan be adopted in place of Bell’s proposal. Montgomery proposed adoption of an “incentive rate ratchet” with targeted rates subject to programmed reductions in the out years of the plan.

Madelon A. Kuchera, the director of the telecommunications program of the Commission’s Policy and Analysis Research Division (PAR), appeared on behalf of Commission staff. Kuchera explained traditional ROE price setting, and she also discussed newer alternative regulatory methods which attempt to address the increase in competition which has undercut the effectiveness of traditional ROE regulation. Kuchera stated that direct price controls or price caps are the best form of utility regulation, but she indicated that an incentive-based plan such as Bell’s might constitute an acceptable interim step toward direct price regulation. Kuchera put forth nine criteria for evaluating an alternative regulatory plan: (1) high subscribership; (2) protection of captive customers; (3) high quality; (4) network integrity; (5) minimization of cross-subsidies and arbitrary recovery of costs; (6) efficient production of telecommunications services; (7) flexible pricing of telecommunications services; (8) maximization of telecommunications supply; and (9) minimization of regulatory costs.

Alex J. Harris, an analyst in the telecommunications program of the Commission’s PAR Division, also testified before the Commission and addressed Bell’s proposal more specifically than did Kuchera. Harris felt that Bell’s Incentive Plan suffered from three main deficiencies: (1) the plan inadequately protects captive customers; (2) there are insufficient incentives to increase efficiency, and Bell might be prompted to request increases in the rates for certain designated noncore services with the least elastic demand; and (3) the plan does not ease the cost or complexity of regulation. Harris proposed the following modifications to the Incentive Plan to make it acceptable: (1) a first-year reconciliation to correct forecasting errors; (2) elimination of the baseline ROE mechanism to increase Bell’s risk factor; (3) inclusion of an upper limit on Bell’s earnings to prevent excess; (4) designation of service baskets and subbaskets in place of Bell’s core/non-core designations; (5) adoption of rate caps and bands; and (6) a productivity driver applicable to the noncompetitive basket of services. Harris opined that the plan as modified would satisfactorily meet Kuchera’s nine regulatory objectives.

Several witnesses testified regarding the appropriate ROE to which the Commission should target rates. Scott Rungren, a financial analyst with the Commission, recommended an ROE of between 12.50% and 13.70%. Rungren recommended that rates be set to achieve the 13.10% midpoint if the Commission did not adopt an incentive plan. Several of Bell’s witnesses recommended a higher ROE range and target, due in part to the incorporation in their analyses of an upward adjustment for market-return expectations.

Evidence was also presented regarding the propriety of Bell’s cost-of-service studies. The cost studies were presented by Bell as a mechanism to demonstrate that the price of Bell’s services were set above their cost, indicating the absence of improper cross-subsidization of competitive services by noncompetitive services. Bell vice-president Konrad testified that Bell’s cost studies, which it called long-run marginal cost (LRMC) studies, allocated many common costs but did not allocate the cost of common overhead. Common overhead costs, which constituted more than 20% of Bell’s 1987 operating expenses, include executive salaries, personnel administration, legal services, and taxes common to both competitive and noncompetitive services. Konrad testified that allocation of common overhead was not undertaken in Bell’s cost studies because any such allocation would be “arbitrary.”

M. Barry Payne, an economist in the financial monitoring section of the Commission’s Public Utilities Division, testified on behalf of Commission staff. Payne testified that Bell’s cost studies were biased and incomplete, and he specifically noted the failure of Bell’s cost studies to allocate common overhead costs. Payne and CUB witness Marvin Kahn favored the use of a stand-alone cost study rather than a LRMC study for use in setting prices. A stand-alone cost study is a category cost-of-service study which identifies the cost of a company’s major service categories on an independent basis in an attempt to avoid distortions caused by economies of scope (the economic benefit of multiple services emanating from common resources). Payne conceded that the stand-alone cost methodology was “highly controversial” and that he knew of no State regulatory commission actually applying such a cost method.

Staff witness Harris testified that LRMC methodology, while “imperfect,” is an “appropriate, useable, and informative measure against which to gauge prices for competitive services, so as to guard against cross-subsidies.” The record contains copies of two letters sent by the Commission to Bell requesting the computation of a rate structure utilizing certain variables supplied by the Commission. The hearing examiners made it known earlier in the proceeding that they expected to ask Bell to run these rate computations on its computers sometime between the filing of briefs and the entry of the final order.

After evaluating the evidence presented, the hearing examiners issued a proposed order. The hearing examiners concluded that Bell failed to establish a sufficient basis for the adoption of an alternative regulatory plan and proposed that rates should be set under traditional methodology to achieve a target ROE of 13%. The hearing examiners concluded that Bell’s cost studies were not LRMC studies and that they did not properly account for “economies of scope that arise from Illinois Bell’s provisioning of multiple services out of the same facilities.” The hearing examiners stated that the allocation of costs between competitive and noncompetitive services was “crucial” to insure that there was no cross-subsidization of competitive services. The hearing examiners recommended that the Commission not adopt a new rate structure incorporating USS because Bell had failed to supply sufficiently accurate cost studies to demonstrate that no cross-subsidization would occur.

In its order, the Commission decided, with one commissioner dissenting, that it had the authority to adopt a modified regulatory structure as part of the ratemaking proceedings. The Commission determined that “a modified regulatory framework is an appropriate first step” toward an approach more suited to an increasingly competitive telecommunications market. Rejecting the alternatives offered by the various parties, the Commission adopted its own “modified regulatory plan” (MRP). The Commission began by noting Rungren’s recommendation that the ROE should be set at 13.10%. The Commission then determined that, because the MRP would allow Bell “to earn rates of return (with sharing) in excess of the [MRP]’s target rate of return on equity,” the ROE target should be set lower, at 12.76%. Rates were to be fixed to produce earnings at this level.

The Commission further determined that there was a range of ROE which would produce reasonable earnings and, therefore, reasonable rates. The Commission found this range to be between the target 12.76% ROE and a ceiling of 13.79% ROE. Since 13.79% ROE represented the top of the Commission’s chosen range of reasonable returns, the Commission determined that Bell must refund to ratepayers all of its earnings in excess of 13.79% ROE. For the portion of earnings within the acceptable range, however, the Commission adopted an earnings-sharing scheme whereby Bell was to share the excess earnings with ratepayers via a yearly refund according to the following formula:

ROE LEVEL REFUNDED TO RETAINED OF EARNINGS RATEPAYERS BY BELL 12.76 - 14.00% 40% 60% 14.00 - 15.00% 70% 30% over 15.00% 100% 0%

As noted above, 13.79% ROE was to be the absolute cap or ceiling on Bell’s earnings. Although the formula accounts for the sharing of earnings up to 15% ROE, the fact that the portion of these earnings which Bell retains is discounted by a percentage indicates that Bell’s earnings after the refund process were not to exceed 13.79% ROE. The Commission refers to the after-refund earnings as the effective ROE.

The Commission’s order referred to the MRP as a “two year plan,” although it appears that the Commission could avail itself of traditional procedures to increase or decrease rates during this period and thereby modify or depart from the MRP. The Commission did not accept Bell’s core/noncore designation, but it noted that it expected Bell to honor its commitment not to seek any rate increase for core services over the two-year life of the MRP. The Commission noted that Kucher a’s nine-point criteria “can serve as the basis for monitoring the plan approved in this order.”

With regard to the expansion of USS into the GIA, the Commission found that Bell’s cost-of-service studies “are reasonable and produce valid results for the purpose of this case.” In so finding, the Commission noted that Bell’s methodology had been “used in numerous past rate cases” and had been accepted by the Commission before. Recognizing the need to reassess cost-of-service methodology, however, the Commission called for continued study in this area. The Commission rejected the stand-alone cost study method because it was “untried for use in setting rates,” and the Commission stated that “Staff or the Intervenors must make a more compelling showing to justify a departure from past policies.” The Commission accepted Bell’s proposal to expand USS into the GIA.

Bell and the intervenors now appeal from the Commission’s order. In reviewing an order issued by the Commission, a court should reverse the order, in whole or in part, if it finds that: (1) the Commission’s findings are not supported by substantial evidence in the record; (2) the Commission acted beyond its authority; (3) the order violates a State or Federal statute or constitution; or (4) the proceedings were in violation of the State or Federal constitution or laws to the prejudice of the appellant. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 10— 201.) Substantial evidence has been defined as evidence which a reasoning mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. (Metro Utility v. Illinois Commerce Comm’n (1990), 193 111. App. 3d 178, 184, 549 N.E.2d 1327, 1330-31.) On review, the Commission’s findings and conclusions on a question of fact are considered prima facie true, and its rules, regulations and orders are considered prima facie reasonable. The burden of proof on appeal rests with the party appealing. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 10 — 201(d).) The Commission’s interpretation of a question of law, however, is not binding on a reviewing court. Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 204, 555 N.E.2d 693, 698.

The first argument raised by the intervenors on appeal is that the Commission violated its statutory duty to set reasonable rates by adopting a range of ROE instead of employing the traditional “pick-a-point” methodology. The Commission defends the notion of a reasonable range of earnings by noting the words of the United States Supreme Court:

“Statutory reasonableness is an abstract quality represented by an area rather than a pinpoint. It allows a substantial spread between what is unreasonable because too low and what is unreasonable because too high. To reduce the abstract concept of reasonableness to concrete expression in dollars and cents is the function of the Commission.” (Montana-Dakota Utilities Co. v. Northwestern Public Service Co. (1951), 341 U.S. 246, 251, 95 L. Ed. 912, 919, 71 S. Ct. 692, 695.)

Additionally, the Commission contends that, for purposes of setting a rate schedule, it employed traditional pick-a-point methodology because rates were set to achieve the target ROE of 12.75%.

We agree with the Commission in this regard. The rate schedule adopted did not in any way relate to the range of ROE which the Commission determined to be reasonable. The rate schedule was set to achieve the target ROE just as would have been the case under traditional pick-a-point methodology. The range of reasonable ROE was established only as a foundation for the earnings-sharing provisions of the MRR Our inquiry, then, must focus on the MRP’s earnings-sharing provisions and on the specific question of whether this portion of the plan is permissible under the Public Utilities Act (Act).

The Commission contends that its authority for adoption of the earnings-sharing plan stems from its broad and well-established discretion in selecting the means utilized in meeting its statutory obligation to set utility rates. In support of this proposition, which Bell advances as well, the Commission places great reliance on the Illinois Supreme Court’s decision in City of Chicago v. Illinois Commerce Comm’n (1958), 13 Ill. 2d 607, 150 N.E.2d 776. At issue in City of Chicago was the Commission’s adoption of a rate formula which included an automatic adjustment clause pegged to the price of natural gas. (13 Ill. 2d at 609, 150 N.E.2d at 777.) Though there was no statutory authority for such an adjustment clause, our supreme court held that it was within the Commission’s power, stating as follows:

“[T]he statutory authority to approve rate schedules embraces more than the authority to approve rates fixed in terms of dollars and cents. The present automatic adjustment clause is a set formula by which the price of natural gas to the ultimate consumer is fixed by inserting in the formula the wholesale price of natural gas ***. The Public Utilities Act, taken as a whole, contemplates that a rate schedule may contain provisions which will affect the dollar-and-cents cost of the product sold.” (City of Chicago, 13 Ill. 2d at 611,150 N.E.2d at 778.)

The Commission notes that this decision was issued before the Commission was given specific statutory authority to adopt a natural gas adjustment. (See Ill. Rev. Stat. 1989, ch. 1112/3, par. 9 — 220 (eff. Jan. 1, 1986).) The Commission argues that the MRP, like the rate-adjustment provision at issue in City of Chicago, represents a permissible means which may be employed toward the end of setting rates.

The Commission’s reliance on its ratemaking authority in this instance, however, begs the question of whether the refund provisions of the MRP constitute retroactive ratemaking. The intervenors posit this issue as their second argument in opposition to the MRP.

Retroactive ratemaking is prohibited under the Act; that is, the Act prohibits refunds when rates are too high and surcharges when rates are too low. (Citizens Utilities Co. v. Illinois Commerce Comm’n (1988), 124 Ill. 2d 195, 207, 529 N.E.2d 510, 516.) The rule against retroactive ratemaking was announced in Mandel Brothers, Inc. v. Chicago Tunnel Terminal Co. (1954), 2 Ill. 2d 205, 117 N.E.2d 774, where the court held that the act of setting rates is “legislative in character and prospective in its operation.” (2 Ill. 2d at 210, 117 N.E.2d at 776.) More recently, the court elaborated on the rationale underlying the rule:

“The prohibition of retroactive ratemaking is derived from the overall scheme of the Act and the role of the Commission in the ratemaking process. *** The rule prohibiting retroactive ratemaking is consistent with the prospective nature of legislative activity, such as that performed by the Commission in setting rates. Moreover, because the rule prohibits refunds when rates are too high and surcharges when rates are too low, it serves to introduce stability in the ratemaking process.” Citizens Utilities Co., 124 Ill. 2d at 207, 529 N.E.2d at 515-16.

In Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 555 N.E.2d 693 (hereinafter referred to as BPI), the Illinois Supreme Court struck down a rate plan adopted by the Commission which utilized a refund mechanism to adjust the earnings of Commonwealth Edison. (BPI, 136 Ill. 2d 192, 555 N.E.2d 693.) The Commission’s order, which it construed to be a decision issued on the merits, set out a five-year rate plan containing: a first-year rate increase, which the Commission adjudged reasonable; a second-year increase, the reasonableness of which the Commission would address at a later date; and a rate moratorium which would be in effect during the final three years. At the end of each of the plan’s five years, the Commission was to review the utility’s earnings to determine if they were “excessive.” If so, any excess earnings would be refunded to ratepayers the following year. BPI, 136 Ill. 2d at 205, 555 N.E.2d at 698.

The Illinois Supreme Court determined that the plan was beyond the Commission’s authority. Although the Commission’s order was purportedly an adjudication on the merits, the court held that the order was, in fact, a settlement which was illegal because not all parties had agreed to it. (BPI, 136 Ill. 2d at 218, 555 N.E.2d at 705.) In determining that the order was actually a settlement, the court noted that it “contained two provisions the Commission did not have authority to unilaterally impose — retroactive refunds and a rate moratorium.” (BPI, 136 Ill. 2d at 213, 555 N.E.2d at 702.) The court further stated, however, that “even if the [Commission’s order] is not a settlement, but a decision on the merits, it is still invalid because (1) the Commission did not have statutory authority to enter two of the provisions, and (2) the [Commission’s order] was not independently supported by the evidence in the record.” (BPI, 136 Ill. 2d at 217, 555 N.E.2d at 704.) The court’s opinion makes it clear that the two unauthorized provisions referred to were those providing for a refund mechanism and a rate moratorium.

We believe that the supreme court’s decision in BPI effectively equates refund mechanisms such as the one at issue here with the prohibited practice of retroactive ratemaking. Although the MRP does not contemplate that Bell would ever retain any earnings in excess of the 13.79% ROE ceiling, it is clear that the MRP requires Bell to refund to ratepayers earnings which are in excess of the amount which the Commission has determined that Bell should earn. This is tantamount to a determination that the rates which produced these earnings are too high, but the rule against retroactive ratemaking as set forth in BPI prohibits the use of refunds to retroactively reduce rates which are too high. Thus, the refund mechanism of the MRP constitutes impermissible retroactive ratemaking.

The Commission argues that, unlike the plan at issue in BPI, the MRP’s refund mechanism is part of a prospectively articulated rate-setting design. Thus, the Commission argues, the MRP more closely resembles the “set formula” for rates upheld in City of Chicago. We disagree. Although the “set formula” in City of Chicago was subject to changes due to the adjustment clause pegged to the price of natural gas, the rates set pursuant to the formula were to have only prospective application. There was no utilization of refunds. See City of Chicago, 13 Ill. 2d at 609, 150 N.E.2d at 777.

Bell argues that, because only it must pay the refunds, then only it can raise the issue of whether the Commission’s refund mechanism constitutes impermissible retroactive ratemaking. In essence, Bell contends that only it has standing to raise this issue. Bell correctly notes that only the utility can assert a claim that its managerial prerogative has been invaded by the Commission. (Produce Terminal Corp. v. Illinois Commerce Comm’n (1953), 414 Ill. 582, 599, 112 N.E.2d 141.) The propriety of the refund mechanism, however, goes beyond mere managerial prerogative. Although Bell concedes that the intervenors may participate in the process of determining the proper amount of refunds due under the MRP, Bell fails to realize that the intervenors also have an interest in determining whether the refund process itself is a viable mechanism. As the supreme court stated in BPI, although the refund mechanism may, “on [its] face, benefit the intervenors,” the adoption of this approach involves “exceptions and contingencies which may adversely affect the intervenors.” (BPI, 136 Ill. 2d at 230, 555 N.E.2d at 710.) While this statement was made in the context of a settlement agreement between the Commission and the utility only, it nonetheless illustrates that the intervenors’ right to contest the refund mechanism is not negated merely because they may in some way benefit from it.

Bell and the Commission argue that the MRP does not affect rates per se because it sets a fixed schedule of rates, and only the dollar amount ultimately paid by ratepayers is affected by the year-end refund. We find this distinction to be illusory. The Act’s definition of “rate” includes not just the prices charged for services, but also “any rule, regulation, charge, practice or contract relating thereto.” (Ill. Rev. Stat. 1989, ch. 111%, par. 3 — 116.) This definition is broad enough to include refunds which affect the ultimate price paid by ratepayers.

Finally, Bell and the Commission argue that, even though the MRP’s refunds would have retroactive effect, this does not constitute retroactive ratemaking because the MRP is intended to foster goals beyond the mere setting of rates, such as promoting increased efficiency. This argument, however, proves too much. The Commission cannot invoke its ratemaking powers as the authority supporting its adoption of the MRP and at the same time argue that the MRP’s retroactive refunds do not constitute ratemaking. Aside from its rate-making authority, the Commission identifies no authority supporting its adoption of the MRP’s earnings-sharing provisions. In fact, examination of the Act compels a contrary conclusion.

Section 9 — 244 of the Act reads as follows:

“9 — 244. Incentives to improve utility performance — Study §9 — 244. The Commission may study the necessity for, and desirability of, implementing regulatory mechanisms which reward or penalize utilities through the adjustment of rates based on utility performance compared to established standards for specific managerial and operational functions. Any such study shall consider the consistency of such mechanisms with the existing obligation of utilities to provide least-cost service and traditional ratemaking principles. *** Any such study *** shall be subject to hearing and comment, and any findings shall be reported to the General Assembly, with appropriate legislative recommendations.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 1111/2, par. 9 — 244 (eff. Jan. 1, 1986).

The interveners argue that this legislative directive to study incentive-based regulation impliedly disallows the Commission to implement directly such techniques. We agree.

The Commission is a creature of the legislature deriving its power and authority solely from the statute creating it, and its acts or orders which are beyond the purview of the statute are void. (Illinois Power Co. v. Illinois Commerce Comm’n (1986), 111 Ill. 2d 505, 510, 490 N.E.2d 1255, 1257.) The fact that no statute precludes an agency from taking a particular action does not mean that the authority to do so has been given by the legislature. (See Schalz v. McHenry County Sheriff’s Department Merit Comm’n (1986), 113 Ill. 2d 198, 205, 497 N.E.2d 731, 734.) Here, the legislature has directed the Commission to study incentive-based regulation and to report its findings. As a matter of statutory construction, the expression of one thing in an enactment excludes any other, even if there are no negative words prohibiting it. (City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill. 2d 609, 612, 162 N.E.2d 345.) This maxim leads to the conclusion that, by authorizing only the study of incentive-based regulation, the legislature did not intend that the Commission should undertake experimentation on its own.

Bell and the Commission argue that the MRP does not reflect the same type of incentive-based plan to which section 9 — 244 is directed. They note that section 9 — 244 speaks of plans “which reward or penalize utilities through the adjustment of rates based on utility performance compared to established standards for specific managerial and operational functions.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9— 244.) Bell and the Commission argue that the MRP is not such a plan because: (1) it does not allow for the “adjustment of rates,” but only for refunds; and (2) it does not establish managerial or operational standards against which to judge Bell’s performance.

Once again, these distinctions are illusory. The characteristics of the MRP appear to be virtually, if not identically, the same as those which section 9 — 244 directed to be studied. Though the MRP does not allow for a prospective adjustment of rates, it does allow the refund mechanism to reduce retroactively the dollar amount paid by ratepayers for telephone service. Although it adopts no formal performance criteria, the order establishing the MRP cited staff witness Kuchera’s nine-point criteria for evaluating an alternative regulatory plan as the “basis for monitoring the plan.” Moreover, though they now both generally avoid use of the word “incentive,” neither Bell nor the Commission disputes that at least one central purpose of the plan was to serve as an incentive for greater efficiency.

Furthermore, the legislature has already enacted a comprehensive regulatory framework within which the Commission may address increased competition in the telecommunications industry. Article XIII of the Act was enacted as the Universal Telephone Service Protection Law of 1985 (Ill. Rev. Stat. 1989, ch. 1112/3, par. 13 — 100 et seq.). Article XIII is premised on the legislature’s finding that increased competitiveness in the telecommunications industry necessitates revision of the State’s regulatory policies and practices. (Ill. Rev. Stat. 1989, ch. 1112/3, pars. 13 — 102(b), (c).) Article XIII provides for the classification of telecommunications services as either competitive or noncompetitive (111. Rev. Stat. 1989, ch. 1112/3, par. 13 — 502) and provides for flexibility in the pricing of competitive services (see Ill. Rev. Stat. 1989, ch. 1112/3, par. 13 — 506 (allowing rates to be set as a “range, band, formula or standard within or by which a change in rates or charges for such telecommunications service could be made without prior notice or prior Commission approval”)). The fact that the legislature has provided article XIII as a flexible regulatory tool makes it less likely that the legislature intended that the Commission should undertake its own experimentation in this regard without prior and specific legislative approval.

We conclude, therefore, that the Commission’s ratemaking authority does not extend to adoption of an earnings-sharing scheme incorporating retroactive refunds and that the Act does not otherwise authorize the Commission to adopt such a plan.

The Commission argues that, even if we find that the Commission was without authority to adopt the MRP, we may still affirm that portion of the order setting rates to achieve a target ROE of 12.76% under traditional ratemaking procedures. We note, however, that the Commission’s order stated that the target ROE would have been set at a level higher than 12.76% if the rate of return finding were not made within the framework of the MRP. The 12.76% ROE target was thus inextricable from the MRP which we have rejected as illegal, and so we must reverse the Commission’s rate of return finding as well. As a result, there is no need for us to examine the propriety of the cost and pricing structure, including USS, adopted to produce earnings at 12.76% ROE. The test-year expense issue likewise need not be addressed at this juncture because the Commission’s proceedings on remand may well be undertaken with reference to data from a different and updated test-year period. Thus, our reversal of the MRP and rate of return findings makes it necessary to reverse the order in toto.

We anticipate, however, that three issues raised in these appeals, each more legal than factual, may be addressed in proceedings on remand. To assist the Commission in this regard, we proceed to address briefly these three issues now.

First, we note the Commission’s rate plan clearly contemplated that it would be in effect for two years, but the plan was undertaken with reliance on data from only a single test year. In BPI, the supreme court noted the Commission’s past practice has been to set rates on a year-to-year basis utilizing a one-year test period, and the court expressed disapproval of a five-year rate plan based on data from only one test year. (BPI, 136 Ill. 2d at 225-26, 555 N.E.2d at 708.) The court noted that the Commission could have, but did not, enact “a new rule *** to establish a new test year or test period for cases which would set rates for more than one year.” (BPI, 136 Ill. 2d at 226, 555 N.E.2d at 708.) Here, too, the Commission failed to establish a test-period procedure which all parties could follow in a proceeding implementing a multiple-year rate plan. It remains true that the Commission has “not set a clearly identifiable alternative standard on which future cases would be based.” (BPI, 136 Ill. 2d at 227, 555 N.E.2d at 709.) We trust this shall not be the case in any similar future proceeding.

Second, the intervenors argue that the Commission violated their right to due process by accepting data from Bell after the close of evidence. The Commission responds that this information was not truly evidence but merely mathematical calculations run on Bell’s computers. Counsel for the Commission stated in oral argument that the reception of such numerical data is a common practice in proceedings before it. If this is, in fact, the case, we wish to express our view that the Commission should incorporate this “common practice” into its rules of practice so that courts of review might be better able to assess the validity of such a procedure on more than a case-specific basis.

Third, the intervenors argue that Bell’s cost-of-service studies, on which the Commission relied in adopting a price structure in the instant case, fail to guard against improper cross-subsidization of competitive services by noncompetitive services. The cost-of-service studies are utilized to insure that the price of competitive services is set at or above their cost which, in turn, indicates that the competitive services are not being cross-subsidized by noncompetitive ser-

vices. Article XIII of the Act expressly forbids cross-subsidization:

“§13 — 507. In permitting, approving, investigating or establishing rates, charges, classifications or tariffs for noncompetitive services offered or provided by a telecommunications carrier which also offers or provides competitive services, the Commission shall not allow any subsidy of competitive services by noncompetitive services. In the event that facilities are utilized or expenses are incurred for the provision of both competitive and noncompetitive services, the Commission shall allow or establish rates or charges for the noncompetitive services which reflect only that portion of such facilities or expenses which it finds to be proper and reasonable. ***
For the purposes of this Section, the Commission shall not allocate to any competitive service all or part of the value of investment in facilities utilized, or expenses incurred, in connection with providing noncompetitive service.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 13 — 507.)

The Act also references LRMC studies as a possible mode of analysis for the Commission to utilize in addressing this issue. See Ill. Rev. Stat. 1989, ch. 1112/3, pars. 13-502(c), 13-507.

The interveners contend that Bell’s cost studies do not adequately assess the cost of competitive services because no portion of the cost of common overhead is allocated to competitive services. Bell states that it did not apportion common overhead costs between competitive and noncompetitive services because to do so would be “arbitrary.” By apportioning 0% of common overhead to the cost of competitive services, however, Bell has itself made an arbitrary apportionment. The statute could not more clearly require that some apportionment of common costs be made, and the Commission has improperly acquiesced in Bell’s outright failure to do so.

Bell argues that common overhead is not apportionable and that it is a residual cost which will ultimately be paid out of Bell’s revenues without apportionment to either competitive or noncompetitive services. The issue here, however, is not simply whether the costs are paid; the issue is whether the price of competitive services sufficiently covers their cost. Without a full assessment of costs, including common overhead costs, it is impossible to make this determination. Thus, even though Bell may feel that apportionment of common overhead is arbitrary, it would be arbitrary and illegal for the Commission to fail to make some apportionment of common overhead to competitive services when assessing the proper price of such services.

We do not find persuasive Bell’s argument that its studies are proper because they are LRMC studies, the use of which is specifically contemplated by article XIII. Bell argues that common overhead is a fixed cost which, by definition, is excluded from LRMC studies. While we agree that the Act specifically allows for the use of LRMC studies to guard against cross-subsidization, we do not agree that common overhead cannot or should not be apportioned within such studies. Though the Act does not define LRMC, the Commission cannot be allowed to adopt a definition which conflicts with the Act’s specific directive that common expenses be apportioned between competitive and noncompetitive services.

Deference to the Commission’s findings is especially appropriate in questions involving the assessment of complex technological and scientific data. (Village of Apple River v. Illinois Commerce Comm’n (1960), 18 Ill. 2d 518, 523, 165 N.E.2d 329.) Here, for example, it was within the Commission’s discretion to reject the controversial standalone cost methodology advanced by the intervenors. We trust that, in the future, the Commission will be able to arrive at a cost methodology, whether LRMC, stand-alone or some other, which makes an apportionment of the cost of common expenses, including common overhead. By accepting Bell’s outright failure to attempt even to apportion common overhead in the instant case, however, the Commission has failed to make a finding of what “reasonable and proper” portion of common expenses should be ascribed to noncompetitive services as required by section 13 — 507 of the Act.

We conclude that the Commission was without authority to adopt the MRP, and so we reverse the order implementing the plan. Because the Commission’s rate of return finding was inextricably linked to the MRP structure, the rate of return finding, as well as the Commission’s findings in regard to the expense and pricing issues, must also be reversed. The Commission’s order is, then, reversed in toto.

The order of the Illinois Commerce Commission is reversed, and the cause is remanded to the Commission.

Reversed and remanded.

INGLIS and McLAREN, JJ., concur.