author: ■PRESIDING JUSTICE McNULTY

text:
    DAISY EAGLIN, as Special Adm’x of the Estate of Carrie Dunklin, Deceased, Plaintiff-Appellee, v. COOK COUNTY HOSPITAL et al, Defendants-Appellants.
    First District (5th Division)
    No. 1—90—1581
    Opinion filed March 20, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Frank Oles, and Maureen D. Yamashiro, Assistant State’s Attorneys, of counsel), for appellants.
    Donald A. Shapiro, Ltd., of Chicago (Donald A. Shapiro and David A. Statham, of counsel), for appellee.
   ■PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

This is a wrongful death action brought by plaintiff Daisy Eaglin, as administratrix of the estate of her sister, Carrie Dunklin, against defendants Cook County Hospital and Cook County Board of Commissioners, alleging medical malpractice. The jury returned a verdict for plaintiff and awarded damages in the amount of $1.5 million upon which the court entered judgment. The issues raised by defendants on appeal are: (1) whether the trial court erred in giving the jury Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (IPI Civil 2d No. 5.01); (2) whether plaintiff’s counsel improperly stated in his closing argument that the jurors could draw a negative inference from defendants’ failure to provide doctors’ orders and produce other unidentified nurses; (3) whether the trial court erred in submitting a general, as opposed to an itemized, verdict form; (4) whether the jury was improperly instructed regarding the measure by which to award damages and the factors that could be considered; and (5) whether the award of damages in the amount of $1.5 million is excessive and unsupported by the evidence presented at trial.

In 1981, 27-year-old Carrie Dunklin contracted systematic lupus erythematosus (lupus), an incurable but treatable rheumatical disease, while doing missionary work in Haiti. Upon returning to the United States to receive treatment of her lupus, Carrie was admitted to Cook County Hospital. At the time, Carrie was suffering from anemia, thrombocytopenia malar rash, and alopecia. Carrie remained at the hospital for over two months where she underwent surgery for a lesion on her left thigh and was given the medication prednisone, a highly potent steroid medication, of which psychosis is a recognized side effect. In December 1981, after a flare-up of her lupus, her dose of prednisone was increased. During this admission she became catatonic, refusing to talk or eat, and began having paranoid thoughts. Carrie was discharged from Cook County Hospital in February 1982, after her symptoms were controlled and her prednisone dosage was decreased.

From February to June 1982, while Carrie recuperated at her sister’s home, she remained on a low level of prednisone. On June 19, 1982, Carrie was again admitted to Cook County Hospital after developing an abscess on her leg and her prednisone medication was increased. Upon stabilization she was released to her sister’s care. On June 29, 1982, Carrie overdosed by taking 50 prednisone tablets at once and was rushed to Little Company of Mary Hospital, where her stomach was pumped. Carrie told the hospital social worker that she had not intended to commit suicide when she took the excess medication. Later that day, Carrie was transferred and admitted to Cook County Hospital due to her ongoing treatment at that hospital.

Upon arrival in the Cook County emergency room, Carrie was examined by Dr. Davila, an intern in internal medicine. Carrie was prescribed a treatment plan which included 40 milligrams per day of prednisone. Dr. Davila made a differential diagnosis of (1) abnormal mental status secondary to lupus central nervous system involvement or (2) secondary depression of prednisone overdose. At the time of Carrie’s admission to Cook County Hospital, the hospital had written protocols for dealing with suicidal patients. The protocol required that “the physician write orders for ‘suicidal precautions’ on the order sheet and elaborate on the patient’s condition in progress notes.” Despite the fact that Dr. Davila recalled placing Carrie on suicide precautions which included one-to-one nursing or continual observation of the patient, the hospital chart revealed no orders for suicide precautions. She was placed on ward 35, which provided maximum nursing attention, and the nursing written orders note the use of bed rails and the possibility of restraints if necessary. In an interview with resident Dr. Gogna, Carrie said that she had not tried to commit suicide. Dr. Gogna suspected that Carrie was suffering an adverse reaction to her prednisone medication. Moreover, Dr. Peter Orris, Carrie’s attending physician, examined her on June 30, 1982, and concluded that Carrie suffered from lupus with depression and her depression was either caused by the prednisone or the lupus itself.

On June 30, 1982, Carrie was given a psychiatric evaluation by Nurse Evangeline Basa, a member of a psychiatric consultation team. Although Nurse Basa did not testify at trial, the record reveals that after meeting with Carrie, Basa drafted a report stating her impression that Carrie was psychiatrically stable and not suicidal. Carrie told Basa that she was not willing to receive any psychiatric intervention or counseling. Nurse Basa recommended that Carrie be motivated to have psychiatric out-patient follow-up and that there be monitoring of the patient’s behavior and moods. Dr. Orris testified that after receiving the psychiatric team’s assessment, he concluded that Carrie no longer needed suicide precautions. Therefore, Carrie was transferred to ward 65, which was less open for patient observation than ward 35. Carrie was placed on the sixth floor of the hospital with unrestricted access to an unlocked and unguarded fire escape balcony which was used by the patients to go out on and smoke cigarettes.

Resident Bruce Bernard, assigned to care for Carrie on July 1, testified that Carrie initially informed him that she was depressed because she had lupus and newly open wounds. She further expressed depression over the fact that she had to rely on her sister and could not work. Dr. Bernard observed that from July 1 to July 4, 1982, Carrie showed a clinical improvement and it appeared that her depression was lifting. However, on July 4, Carrie jumped from the sixth-floor fire escape balcony to her death.

On June 29, 1983, plaintiff, Daisy Eaglin, filed a wrongful death medical malpractice suit against Cook County Hospital, the Cook County Board of Commissioners, Dr. Orris, Dr. Gogna, Dr. Davila, Dr. Bernard and Nurse Basa. Plaintiff brought this suit on behalf of Carrie’s mother, Pearlie Dunklin, and Carrie’s 12 brothers and sisters. Plaintiff alleged in her third amended complaint that defendants:

“(a) Failed to properly evaluate Carrie Dunklin for continued suicide risk;
(b) Failed to take appropriate measures to protect Carrie Dunklin against further suicide attempts;
(c) Negligently placed Carrie Dunklin on a floor of the hospital with unrestricted access to an unlocked fire escape balcony;
(d) Failed to properly treat Carrie Dunklin for her suicidal condition and depressive mood disorder; [and]
(e) Failed to follow and enforce its own protocol for treatment and care of patients at increased risk for suicide.”

It was stipulated by the parties prior to trial that plaintiff would voluntarily dismiss all individual defendants on the condition that these individuals would be available as adverse witnesses in plaintiff’s case in chief against the hospital and the Board of Commissioners. The jury awarded plaintiff $1.5 million and defendants appealed.

Defendants first contend that the trial court erred in giving the jury plaintiff’s tendered IPI Civil 2d No. 5.01, which instructed the jury that an adverse inference could be drawn from defendants’ failure to present the testimony of Nurse Evangeline Basa. This instruction permits a jury to draw an adverse inference from a party’s failure to offer evidence or to produce a witness within his power to produce when: (1) the evidence or witness was under the control of the party and could have been produced by the exercise of reasonable diligence; (2) the evidence or witness was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence or produced the witness if he believed the testimony to be in his favor; and (4) no reasonable excuse for the failure has been shown. This instruction is given if the trial court determines that a party would in all likelihood produce the witness or other evidence unless the witness or evidence was unfavorable to that party. (Lewis v. Cotton Belt Route — St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 576 N.E.2d 918.) Whether to give this instruction is a decision within the sound discretion of the trial court and is subject to reversal only when a clear abuse of discretion appears on the record. Roeseke v. Pryor (1987), 152 Ill. App. 3d 771, 504 N.E.2d 927; Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 462 N.E.2d 645.

Defendants maintain that Nurse Basa was not within their control at the time of trial because prior to trial she had resigned from Cook County Hospital. In support of this argument, defendants cite Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 365 N.E.2d 1087, wherein the court, although affirming the judgment in favor of the plaintiff, found that it was error for the trial court to tender IPI Civil 2d No. 5.01 to the jury since there was no evidence that at the time of trial the nurse was still employed by defendant. We, however, are more persuaded by the decision in Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 460 N.E.2d 464, wherein a wrongful death action was brought against a railroad company and the train fireman, Lee Horst, who rode in the engine car at the time of the accident. Horst was the only witness to the accident alive at the time of trial. At the close of the plaintiff’s case, defendant’s motion for a directed verdict in favor of Horst was granted. In holding that the trial court did not abuse its discretion in giving IPI Civil 2d No. 5.01 as to the railroad company’s failure to call Horst as a witness, the court stated:

“The defendant contends on appeal that Horst, who lives in Colorado, was not within his control. However, the record indicates that defense counsel told the trial court and the plaintiff’s attorney while discussing a motion in limine that the defendant would call Horst to testify at trial. Additionally, the defense attorney told the jury in the opening statement that the evidence would show that prior to the collision, the flashing lights, a horn or whistle, and a bell were properly working, and that a southbound driver’s view was completely unobstructed. Ostensibly, the defense had planned to call Horst, the only living eyewitness, to testify to these matters. Moreover, counsel for the defense represented Horst at the opening of the trial and obtained a directed verdict in his favor at the close of plaintiff’s case. It is apparent that Horst was accessible to the defendant. If Horst had become unavailable subsequent to defense counsel’s indications that he would testify, defense counsel had the right to explain that to the jury; however, no attempt to do so was made. [Citation.] Since the defendant did not call Horst, there is a presumption that his testimony would have been adverse to the defendant.
Although the presumption does not apply if the witness was equally available to either party, a witness is not considered equally available to a party, if there is a likelihood that he would be biased against that party. [Citations.] In the instant case, Horst had been sued by the plaintiff and had spent several years defending himself. In addition, he had been employed by the defendant for more than six years. Under these circumstances, there is a likelihood that Horst would have been biased against the plaintiff. We cannot say that Horst was equally available to the plaintiff and the defendant.” (Tonarelli, 121 Ill. App. 3d at 1047-48, 460 N.E.2d at 468.)

While Horst was living in Colorado at the time of trial, it is unclear from the case whether he was still employed by the railroad company at the time of trial.

Nonetheless, based on the particular facts in the instant case, we do not find the fact that Basa is no longer employed by the hospital to be dispositive. Nurse Basa was an employee of Cook County Hospital for at least 16 years and was a defendant in this case for six years. Throughout the six years of litigation, she was represented by the same lawyers representing Cook County Hospital. In fact, Nurse Basa remained a defendant until the start of trial, when plaintiff agreed to dismiss the individual defendants, including Basa, upon defense counsel’s guarantee that each defendant would be made available to be called as adverse witnesses in plaintiff’s case in chief. The fact that Basa was still under the control of defendants, even though she was no longer employed by Cook County Hospital, is evident from the fact that defense counsel at the start of trial was confident that he could produce Nurse Basa at trial. Accordingly, since Nurse Basa was a defendant and a former employee of Cook County Hospital, there is a strong likelihood that Basa would be biased against plaintiff and cannot be considered equally available to plaintiff.

In addition to assuring that Nurse Basa would be produced as an adverse witness, defense counsel made the following representation in his opening statement to the jury regarding his intention to call Nurse Basa as a witness:

“You’re going to hear it from a psychiatric nurse at Cook County Hospital who was — who is not just another nurse, who kind of took general care of patients, but a psychiatric nurse who had a background of substantial training and who had long experience in the area of psychiatric nursing. That psychiatric nurse didn’t independently make any decision about Carrie Dunklin. She was part of a psychiatric team ***. *** [T]hat team made the decision from the evidence, from the observations of Nurse Basa who had been making those observations for — since approximately 1973 as a psychiatric nurse at Cook County Hospital. And whose observations the psychiatric team had found over that period of time to be accurate and to be reasonable and to be reliable in terms of patients at Cook County Hospital who are looked at or spoken to about psychiatric problems.”

Defense counsel explained to the jury the significance of Nurse Basa’s testimony, but after they were suddenly unable to produce Nurse Basa at trial, they made no attempt to explain to the jury the reason for Nurse Basa’s unavailability. While defense counsel explained that Nurse Basa had moved out of State and would not return his phone calls, defense counsel made this representation outside of the jury’s presence. Under the specific circumstances of this case, we find that despite Nurse Basa’s resignation from Cook County Hospital, she was still under defendant’s control at the time of trial and no reasonable excuse was given for her failure to testify. Accordingly, the trial court properly determined that defendants would have produced Nurse Basa unless her testimony was unfavorable to defendants.

We also find no merit to defendants’ contention that IPI Civil 2d No. 5.01 was not appropriate in this case since the testimony of Nurse Basa was merely cumulative in light of the fact that the court admitted all of Nurse Basa’s records into evidence. This argument fails because a major part of plaintiff’s case against defendants was that critical information was missing or not recorded in the medical records, including two alleged meetings that Nurse Basa had with other members of the psychiatric team in which Carrie was discussed. Defendants cite Alton v. Kitt (1982), 103 Ill. App. 3d 387, 431 N.E.2d 417, wherein the plaintiffs brought a medical malpractice action against 26 defendants for injuries arising from several surgical procedures. The appellate court in Kitt upheld the trial court’s ruling prohibiting the plaintiff from arguing that an adverse inference could be drawn from defendant’s failure to present all 26 defendants at trial. The court stated that “[t]o parade all such persons as potential witnesses would be a needless exercise.” (Alton, 103 Ill. App. 3d at 399-400, 431 N.E.2d at 426.) While defendants argue that it would be a needless exercise to parade before the court all past and present Cook County employees who may have encountered Carrie at Cook County Hospital, requiring the testimony of Nurse Basa, the only nurse on the psychiatric team to evaluate Carrie, is a far cry from requiring 26 defendants to appear in court. Because Nurse Basa was the only person from the psychiatric team who allegedly evaluated Carrie and defense counsel boasted that this evaluation was done by the exceptionally well-qualified nurse, her testimony was critical.

Next, defendants contend that the following portion of plaintiffs closing argument deprived the county of a fair trial:

“How do we know it didn’t happen the way Cook County Hospital says it happened? Well, No. 1, there were no physician’s orders in the chart either putting Carrie Dunklin on suicide precautions or taking her off suicide precautions. There were other doctors’ orders in the chart. You heard the testimony by all of the experts that orders are required by the Joint Commission to be in writing and that it requires patients charts to be preserved, and they preserved everything else in the chart except for those so called orders. These orders were made, were [sic] are they?
The court is going to instruct you, I believe, that when evidence is within the exclusive control of one of the parties, and that evidence is not produced in court, then you may draw an inference that that evidence would have been unfavorable to the party that failed to produce it. So the court is going to instruct you as a matter of law that when they failed to produce evidence that is within their exclusive control that you can draw an adverse inference from that.”

Soon thereafter, plaintiff’s counsel stated:

“Anyway, going back to Nurse Basa, where was she and why didn’t Cook County Hospital produce her at this trial? I tell you why, because once again, just like the other nurses, they failed to produce, her testimony would not have been able to support the claim that a conscious decision was made to eliminate suicide precautions. In fact, as I mentioned, and the Court will instruct you about a witness that is under control of one of the parties that is not produced in the Court, and that applies to Nurse Basa and it also applies to the other nurses that Cook County Hospital did not call at trial.”

Because defendants raised no objection to these comments during plaintiff’s closing argument, any error is waived on appeal. (Jamison v. Lambke (1974), 21 Ill. App. 3d 629, 316 N.E 2d 93.) In any event, defendants could not prevail on this argument. During closing argument, counsel is given wide latitude to draw reasonable inferences and conclusions from the evidence. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364.) The scope of closing argument is within the sound discretion of the trial court and the reviewing court will reverse only if the argument is prejudicial. (Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 398 N.E.2d 188.) The standard governing the allowance of adverse comment in argument is the same standard that governs the use of IPI Civil 2d No. 5.01. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 22, 541 N.E.2d 643.) Applying that standard, we reach the conclusion that no error was committed. Dr. Davila testified that he ordered suicide precautions for Carrie but conceded that his orders were missing from the hospital records. Moreover, while Dr. Orris testified that he reevaluated Carrie on June 30, and consciously ordered the suicide precautions lifted, the record is devoid of evidence substantiating Dr. Orris’ testimony. In Laport v. Lake Michigan Management (1991), 252 Ill. App. 3d 221, the court concluded that defendant offered a reasonable excuse for its failure to produce inspection reports. According to company policy, the inspection reports were retained for two years. Thus the reports at issue would have been destroyed in the normal course of business before the suit was filed. The instant case is in sharp contrast. Here, absolutely no explanation was given as to the whereabouts of the suicide precautions written by Dr. Davila.

In addition, suicide precautions include one-to-one 24-hour monitoring by the nursing staff. However, not one nurse was called to testify that she had, in fact, provided one-to-one monitoring required by an order for suicide precautions. In Harrington v. Rush-Presbyterian-St. Luke’s Hospital (1990), 210 Ill. App. 3d 183, 569 N.E.2d 15, the defendant also claimed that it had been prejudiced by plaintiff’s comments in closing argument on the failure of nurses to testify. The focus of the dispute related to the failure to call the nurses who were on duty on the evening of decedent's death. Plaintiff's counsel asserted that he did not call the nurses because he believed defendant’s counsel was going to do so, but defendant’s counsel never called the nurses to testify. Therefore, neither side called the persons whose conduct was at issue in the trial. The court held that the comments directed to the testimony or nontestimony of the nurses were certainly a disputed issue and could not possibly have interfered with defendant receiving a fair trial. (Harrington, 210 Ill. App. 3d at 189, 569 N.E.2d at 19.) Here, too, we conclude that plaintiff’s comments did not deny defendants a fair trial.

The next contention advanced by defendants is that the trial court erred when it approved the general verdict form tendered by plaintiff. Because defendants failed to object to the form of the verdict which was submitted to the jury or to tender an itemized verdict form, they have waived this issue on appeal. (Forrester v. Patrick (1988), 167 Ill. App. 3d 105, 520 N.E.2d 1188; Jeffers v. Weinger (1985), 132 Ill. App. 3d 877, 477 N.E.2d 1270.) Likewise, because defendants failed to either object to the instruction that the jury could award all Carrie’s siblings damages for loss of society or to offer an alternative instruction, defendants have also waived the right to appeal this issue.

Defendants next contend that they were denied a fair trial because the jury was not instructed that it could have rejected the presumption of parents’ substantial pecuniary loss. We disagree. Parents are generally entitled to a rebuttable presumption of substantial pecuniary loss. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373.) The presumption of substantial pecuniary loss of surviving parents of adult children is rebutted by evidence that the parent and child were estranged. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) Here, Pastor Ritchie described the relationship between Carrie and her mother as “close-knit.” He testified that Carrie “would go check on” her mother and “would pay her utility bills or go buy groceries for her or do whatever her mother needed.” In describing the relationship between Carrie and her mother, Daisy Eaglin said that “Carrie was the apple of my mother’s eye” and that Carrie’s relationship with her mother was further strengthened by their sharing devout religious beliefs. Pearlie Dunklin testified that Carrie visited her once a week, helped around the house, bought groceries for her and paid her utility bills. When Carrie left to do missionary work, Carrie and her mother wrote letters to each other once a week. Carrie also provided her mother with some limited financial assistance. Accordingly, this evidence served to buttress the presumption that Carrie’s mother suffered substantial pecuniary loss upon Carrie’s death. While defendants now contend that Carrie and her mother were estranged for the less than two-year period that Carrie resided in Chicago after returning from Haiti, no testimony was ever presented describing the relationship between Pearlie Dunklin and Carrie for such time period. In fact, defendants never offered an instruction on the rebuttable presumption or estrangement.

We also reject defendants’ contention that the jury award of $1.5 million is excessive. The amount of damages to be awarded in a wrongful death action is within the discretion of the jury and should not be overturned unless it is evidently the result of passion or prejudice, falls outside the limits of fair and reasonable compensation, or shocks the judicial conscience. (Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 510 N.E.2d 1208.) In light of the relationship Carrie had with her mother and her siblings, particularly Daisy, and the fact that this verdict is intended to compensate 14 individuals who suffered damages, we do not consider the $1.5 million verdict to be excessive.

Accordingly, for the reasons set forth above, the decision of the trial court is affirmed.

Affirmed.

LORENZ and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    BRADLEY A. BATKA, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF ORLAND PARK POLICE PENSION FUND et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—0630
    Opinion filed March 20, 1992.

      Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago, for appellant.
    Puchalski, Keenan & Reimer, of Chicago (Richard J. Reimer, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This appeal arises from a petition for mandamus filed by the plaintiff pursuant to section 14 — 101 of the Code of Civil Procedure (Ill. Rev. 'Stat. 1989, ch. 110, par. 14 — 101 et seq.). The relief requested by plaintiff’s petition was that the circuit court require defendants to issue a written decision either granting or denying plaintiff’s request for retroactive disability benefits dating back to September 20, 1984. Defendants filed a motion for summary judgment which the circuit court granted based on its determination that there was no legal basis to require defendants to issue a written decision. Plaintiff then filed a timely motion for reconsideration which was also denied. The issue on appeal is whether the circuit court erred in denying plaintiff’s petition for mandamus and ruling that defendants were not required to issue a written decision. Because our decision hinges upon the rather lengthy procedural history of this case, a review is necessary.

On September 20, 1984, plaintiff, a police officer, applied for disability benefits with the Board of Trustees of the Village of Orland Park Police Pension Fund (Board or defendants) seeking “line of duty” or, in the alternative, “not on duty” disability benefits pursuant to sections 3 — 114.1 and 3 — 114.2 of the Illinois Pension Code (Pension Code) (Ill. Rev. Stat. 1983, ch. lOSVa, pars. 3 — 114.1, 3 — 114.2). In October 1986, after several hearings, both requests for benefits were denied. Plaintiff then filed a complaint for administrative review, and on May 15, 1987, the circuit court reversed the Board’s decision and remanded the case for further proceedings. On remand, the Board reaffirmed its prior decision, and on March 29, 1988, the circuit court affirmed the Board’s denial of plaintiff’s application for benefits. Plaintiff then filed a timely notice of appeal, and on July 21, 1989, the appellate court affirmed the decision of the Board and the circuit court denying line-of-duty benefits but held that plaintiff was eligible for not-on-duty disability benefits. The appellate court then ordered the Board to award plaintiff the applicable not-on-duty pension benefits. See Batka v. Board of Trustees of Village of Orland Park Police Pension Fund (1989), 186 Ill. App. 3d 715, 542 N.E.2d 835 (Batka I).

The Board did not issue any written decision as to the amount of benefits or the effective date of payment but began paying benefits effective as of July 21, 1989, the date of the appellate court decision. On January 16, 1990, plaintiff filed a motion with the circuit court for the “Entry of Order Consistent With Decision Of Appellate Court” requesting that the Board be required to pay the benefits at issue retrospectively from September 20, 1984, which was the date of his application before the Board for disability benefits. Circuit Court Judge Thomas O’Brien concluded that the court did not have jurisdiction to rule on plaintiff’s motion because the matter before the appellate court had not been remanded to the circuit court, and because there was no final order of the Board which could be reviewed. In his brief, plaintiff stated that after his motion was stricken, counsel for the Board indicated in conversations and correspondence with plaintiff’s counsel that the Board would issue a written order denying plaintiff’s request for retroactive benefits. The record also contains a letter prepared by plaintiff’s counsel confirming a telephone conversation with the attorney for the Board (not the attorney who represented the Board in this matter) which stated in part:

“This will confirm our telephone conversation of May 21st wherein you advised that the Board instructed you to prepare an order denying Officer Batka’s claim for retroactive pension benefits from the date of application through the date of Appellate Court decision. As you advised, you will prepare this order and it will be effective the date that it is signed by the trustees.”

However, no written decision was forthcoming, and on August 9, 1990, plaintiff filed a petition for mandamus requesting that the Board be required to issue a written decision either granting or denying his request for retroactive disability benefits. The Board filed its answer to plaintiff’s petition and moved for summary judgment. A cross-motion for summary judgment was then filed by plaintiff. The circuit court judge granted defendants’ motion for summary judgment, concluding that there was no basis for ordering the Board to issue a written decision.

Plaintiff contends that the circuit court erred in denying his petition for mandamus because he has a right to be issued a written decision by defendants, and he is unable to exercise his right to administrative review without it. Plaintiff cites People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 519, 147 N.E.2d 89, for the principle that mandamus will lie to compel the performance of a ministerial act where an applicant has a legal right to its performance and can prove that a defendant has a legal obligation to act. Based on this principle, plaintiff argues that as an applicant for disability benefits, he has a legal right to performance by the Board, and the Board has a legal obligation to administer pension funds and to designate its beneficiaries. As part of this legal obligation, the Board is required to “order the payment of pensions and other benefits and to issue certificates signed by its president and secretary to the beneficiaries stating the amount and purpose of the payment.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. ÍOB1^, par. 3 — 133.) The Pension Code also provides:

“The provisions of the Administrative Review Law *** shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board ***. The term ‘administrative decision’ is as defined in Section 3 — 101 of the Code of Civil Procedure.” (Ill. Rev. Stat. 1989, ch. 108x/2, par. 3— 148.)

Section 3 — 101 of the Code of Civil Procedure states in relevant part that an administrative decision is “any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101.) There is no question that the Board’s action, in response to Batka I, of paying plaintiff disability benefits effective as of July 1989, rather than September 1984, had an effect on plaintiff’s rights and privileges under the Pension Code and is therefore a decision. However, in failing to commit this decision to writing, the Board failed to comply with section 3 — 133 of the Code.

In addition, section 3 — 103 of the Code of Civil Procedure requires:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of a summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party thereby at his or her last known residence or place of business.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 103.)

Thus, without a final written decision from defendants, plaintiff is precluded from administrative review of the Board’s failure to pay retroactive benefits.

Although the Board claims that it complied with Batka I when it began paying plaintiff benefits effective as of July 21, 1989, we disagree. While it is true that the Board did provide payments to the plaintiff following Batka I, plaintiff never received any decision regarding his request for retroactive benefits. Further, even if one was to reason that the Board’s action of commencing benefits on July 21, 1989, was in fact a denial of benefits retroactive to September 20, 1984, plaintiff was precluded from administrative review when Judge O’Brien refused, and properly so, to entertain plaintiff’s motion. At this point, plaintiff could either appeal Judge O’Brien’s order or petition for mandamus. However, even if plaintiff had appealed Judge O’Brien’s order, as defendant argues he should have done, and this court reversed, the case would have been remanded to the circuit court to entertain plaintiff’s motion. At this point, depending upon the trial court decision, either another appeal would ensue or the case would be remanded to the Board with instructions to prepare a written decision. If, on the other hand, this court affirmed Judge O’Brien’s order (that the trial court did not have jurisdiction), plaintiff could still seek mandamus. In any event, plaintiff would not be any closer to a decision on the merits. This case is already eight years old, and depending upon the Board’s action, a third appeal is not altogether out of the question. For this reason and because we are of the opinion that plaintiff should benefit from any increased pension during his lifetime, we cannot say that his decision not to appeal Judge O’Brien’s order was improper. Accordingly, we reject defendant’s theory that plaintiff’s request for a written decision is barred by the doctrine of res judicata.

We also reject the argument that plaintiff waived any entitlement to retroactive benefits by his failure to request the same during Batka I. It must be remembered that Batka I dealt with whether plaintiff was entitled to any benefits at all, either line of duty or not on duty. (See Ill. Rev. Stat. 1987, ch. lOS1^, pars. 3 — 114.1, 3 — 114.2.) Having determined that plaintiff was entitled to not-on-duty benefits in Batka I, this court “order[ed] the Board to award Batka the applicable ‘not-on-duty’ pension benefits.” (Batka, 186 Ill. App. 3d at 725.) Thus, both the amount of the benefit as well as when it was to commence were for the Board to determine.

Defendant’s final argument is that plaintiff’s petition for mandamus was improper in that plaintiff’s sole remedy is administrative review. However, the purpose of plaintiff’s petition was not to request review of any decision but to enlist the trial court’s aid in requiring the Board to issue a written decision so that plaintiff could exercise his right to administrative review.

For the reasons set forth above, we conclude that the plaintiff has a legal right to a written decision by the Board indicating the amount and effective date of disability benefits awarded to him, and the Board has a legal obligation to provide plaintiff with its written decision.

Accordingly, the order of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed.

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


author: JUSTICE O’CONNOR

text:
    EDWARD SCULLES, Plaintiff-Appellant, v. AMERICAN ENVIRONMENTAL PRODUCTS, INC., et al, Defendants-Appellees.
    First District (1st Division)
    No. 1—90—2980
    Opinion filed March 23, 1992.

      James Costello, Ltd., of Des Plaines (James P. Costello, of counsel), for appellant.
    Hennessy & Cihak, P.C., of Chicago (Jerome E. Cihak, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Edward Sculles, brought suit against four business entities alleging, inter alia, negligence and products liability, seeking damages for injuries he received from a workplace accident involving a commercial baler. Plaintiff appeals from the circuit court’s grant of summary judgment in favor of one of the defendants, P.T.L. Industries, Inc. (PTL). The court ruled, generally, that PTL had no duty to warn of any hazardous condition with respect to the baler and that plaintiff’s injuries were not attributable to PTL’s servicing of that equipment. For reasons which follow, we affirm that judgment.

Plaintiff injured his hand in an accident which occurred at a J.C. Penney Company warehouse in Schaumburg, Illinois, on October 10, 1984. At that time, J.C. Penney Company (J.C. Penney), owned and operated the baler for purposes of disposing corrugated cardboard boxes. The boxes are placed in a hopper and compacted by a “ram” into cube-sized packages. The compacted material is emitted from a side opening of the baler. It appears that the side opening is closed during the compacting process by two metal doors, a smaller metal door overlapping the nonhinged edge of the larger metal door.

According to the depositions filed in the circuit court, plaintiff’s co-worker, Robert Krotzer, was one of three workers at the plant who was authorized to use the machine, but he had received minimal training in its operation. Two days before the accident, Krotzer informed his supervisor, plant manager Gary Young, that a shut-off switch on the baler was broken. No action was taken by Young to fix the switch nor was any repair sought. On October 10, 1984, Krotzer apparently overfilled the baler and asked plaintiff to help him by holding the large metal door shut while Krotzer turned the machine on. Once the machine was turned on, the smaller door closed on plaintiff’s hand. When Krotzer heard plaintiff’s screams, he became disoriented and pressed several buttons on the baler, which, unfortunately, exacerbated the situation. Young, who also heard plaintiff’s screams, turned off the electrical power in the plant; however, he turned the power back on when he realized that the baler would not operate without it. Another worker finally released plaintiff’s hand from the machine a short while later.

In his suit, plaintiff named, as defendants, the machine’s manufacturer, American Environmental Products Inc. as well as J.C. Penney, Barr Electric Corporation (Barr), and PTL. Plaintiff charged Barr and PTL with the negligent failure to properly service, maintain, and repair the baler’s electrical system and the failure to service and maintain the baler’s start/stop mechanism.

PTL is a general repair service company owned and operated by Jack Essenberg. Essenberg repairs compacters and balers throughout the Chicago area on an “on call” basis. Essenberg has worked on balers and compacters since 1970, but had no prior experience with a baler like the one in question.

Essenberg stated that he was familiar with safety standards set forth by the Occupational Safety and Health Act (OSHA) (29 U.S.C. §651 et seq. (1982)) to the extent that he could service a machine to meet OSHA’s specifications if a company had been cited for a violation. Essenberg offered safety advice in the past to various compacter owners if “a machine naturally needs repair so that it comes in with soliciting service work. Or if I see that a machine is unsafe according to what I understand OSHA specification, then I’ll notify the customer.”

Essenberg’s first service call to the J.C. Penney warehouse was in July 1984, when he was asked to check a wiring problem. His second visit concerned the baler’s conveyor belt. In each case, Essenberg repaired the defects and was not asked to perform any further services nor was he advised of a defective start/stop switch. No one asked Essenberg to look for safety hazards on the baler, and no one asked him for suggestions relative to warning signs or safety features on the machine. Moreover, he offered no such suggestions or advice. Essenberg was asked about safety by J.C. Penney only after the accident had occurred. One day after plaintiff’s accident, Essenberg returned to the warehouse, where he was asked by J.C. Penney to make the baler “safer.” Although Essen-berg found that the door was functioning properly, he suggested a different type of stop switch, which he installed. Essenberg also stated that he would “eyeball” the machines for safety problems and would inform the owners of “abnormal” safety defects.

PTL’s summary judgment motion argued that plaintiff’s complaint did not allege that PTL had a duty to warn of a hazardous condition or of a breach of an alleged duty to warn. PTL contended that plaintiff’s complaint made no reference to any failure to warn as being the predicate of liability against PTL. In ruling for PTL, the trial judge concluded that, although Essenberg conceded that he would “eyeball” the equipment, notifying J.C. Penney of any discovered dangerous condition, Essenberg had no duty to do so since he operated without a contract and only repaired the equipment on a “case by case” basis. Moreover, no contrary evidence existed to show that Essenberg was ever asked to make safety suggestions, and no connection between Essenberg’s work and the accident was ever shown by plaintiff.

Plaintiff initially argues that the trial judge failed to apply the correct law in deciding whether defendant had a duty to warn of the baler’s dangerous condition.

Our supreme court has stated that, in a negligence action, “the duty to warn co-exists with the corresponding liability for the hazard if no warning is given. If the defendant is not liable for the existence of the hazard in the first instance, he is under no duty to warn of it.” (Lansing v. County of McLean (1978), 69 Ill. 2d 562, 574, 372 N.E.2d 822, citing Newcomm v. Jul (1971), 133 Ill. App. 2d 918, 273 N.E.2d 699. See also Branson v. R. & L. Investment, Inc. (1990), 196 Ill. App. 3d 1088, 1093, 554 N.E.2d 624.) Plaintiff argues that this court’s decision in Weber v. Chen Enterprises, Inc. (1989), 184 Ill. App. 3d 847, 540 N.E.2d 957, appeal denied sub nom. Gribbon v. Chen Enterprises (1989), 127 Ill. 2d 643, 545 N.E.2d 110, changed the law in Illinois on this point. Plaintiff’s argument is meritless because the supreme court has not overruled Lansing and because the appellate court in Weber distinguished its decision from Newcomm based upon the facts of the case before it. See Weber, 184 Ill. App. 3d at 849.

Defendant here did not have a duty to warn of any potential hazards regarding the baler. The uncontroverted evidence indicates that Essenberg was not under a contractual obligation to provide J.C. Penney with safety information nor was he ever otherwise asked for safety suggestions. The record reveals that Essenberg serviced the machine two times before the accident for problems unrelated to plaintiff’s accident. Since Essenberg was not responsible for the existence of the hazard, he did not have a duty to warn of it.

Plaintiff also asserts that defendant had a duty to warn of the hazardous condition when he voluntarily “eyeballed” the J.C. Penney baler for safety defects.

It has long been recognized that one who assumes to act, even though voluntarily or gratuitously, may thereby become subject to the duty of acting carefully. (Mattice v. Goodman (1988), 173 Ill. App. 3d 236, 239, 527 N.E.2d 469; Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1005-06, 365 N.E.2d 80.) Liability will attach if the improperly performed voluntary act causes the condition that yields the injury. Mattice, 173 Ill. App. 3d at 236.

The record here establishes that plaintiff charged defendant with negligence in maintaining the electrical system of the baler and the on/off switch. However, no evidence indicates that either of these systems caused the accident in which plaintiff was injured. Essenberg was not asked to give safety suggestions at either of his service visits before the accident occurred. Plaintiff seemingly maintains that by not warning J.C. Penney of the failure to exhibit a warning sign on the machine, Essenberg negligently performed his voluntary act of “eyeballing” the machine for safety problems. This argument is without merit. Defendant’s failure to warn of the lack of a safety sign could not have caused the injury alleged by plaintiff’s complaint, which charged that the injury arose from defendant’s negligent maintenance of the baler’s electric system and on/off switch.

Finally, plaintiff contends that the trial judge erred by granting summary judgment to defendant.

Section 2 — 1005 of the Code of Civil Procedure provides that summary judgment may be entered only if “there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) Accordingly, the purpose of summary judgment is not to try a question of fact, but to determine whether one exists. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552.) A motion for summary judgment is to be granted if the pleadings, depositions, affidavits, and admissions filed reveal that no genuine issue as to any material fact exists. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) Furthermore, the pleadings, affidavits, and depositions must be construed against the movant in favor of the opponent. In re Estate of Whittington (1985), 107 Ill. 2d 169, 177, 483 N.E.2d 210, cert, denied (1986), 475 U.S. 1016, 89 L. Ed. 2d 313, 106 S. Ct. 1199.

Here, all the facts demonstrate that defendant did not have a duty to warn J.C. Penney of the existence of hazard on the baler at issue. Accordingly, no question of fact exists to preclude entry of summary judgment.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.

       J.C. Penney was later fined for maintaining the baler in an unsafe manner by OSHA because no barrier guards or electronic safety devices were present to prevent employees from being injured by the operation of the small metal door in circumstances similar to those at issue here. Following the accident, J.C. Penney also put a warning sign on the baler, cautioning employees to “not put hands on this side of tape ever.”


author: PRESIDING JUSTICE HARTMAN

text:
      In re WALTER B., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. Anita B. et al., Respondents-Appellees).
    First District (2nd Division)
    No. 1—91—3737
    Opinion filed March 24, 1992.

      Patrick T. Murphy, Public Guardian, of Chicago (Lee Ann Lowder and Ellen O’Brien, of counsel), for appellant.
    Rita A. Fry, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

The public guardian appeals the circuit court’s findings against a petition for adjudication of wardship, and seeks reversal and remandment. The issues raised on appeal include whether the court’s findings of unproved sexual abuse, neglect in providing necessary care, neglect in the environment, and physical abuse were against the manifest weight of the evidence.

The State filed this action in the interest of Walter B., Jr. (Walter), a five-year old child, alleging abuse and neglect of Walter by respondents, his parents, and petitioned for Walter’s adjudication as a ward of the court. The parents stipulated to a finding of probable cause and urgent immediate necessity and the circuit court placed Walter in the temporary custody of the Department of Children and Family Services.

The following evidence was adduced at the adjudicatory hearings. Park Forest police officer Linder testified that on May 2, 1991, he was dispatched to Walter’s home. There, Walter’s father informed him that Walter’s mother called the police, adding that she punched Walter in the stomach with her fist. Officer Linder observed Walter crying hysterically. Walter told him “Mommie punched me.” Officer Linder described the conditions of the house as unacceptable, with garbage piled in the kitchen, the stove in a state of disrepair, dirt and filth on the walls, and an odor about the house. Because an allegation was made that Walter was a victim of sexual abuse by his father, Officer Linder and the family proceeded to the police station.

Walter understood questions and gave Officer Linder slow, but proper, responses. After being shown anatomical drawings of a nude male adolescent at the police station, Walter volunteered the information to Officer Linder that he “whistled on his daddy’s pee-wee.” He described whistling as blowing, pointing to his tongue. “Pee-wee” was the word he used for male genitals. Officer Linder later heard Walter inform Park Forest Detective Michael McNamara, who interviewed Walter next, that his father would “pee-pee” in his mouth and he had a real bad taste in his mouth.

Walter’s mother told Officer Linder that on April 30, she saw Walter and his father in the bathroom naked. Walter was stroking his father’s penis. When the father saw her, he reprimanded Walter for such action. She saw them in bed together often. Immediately prior to May 1, she observed them in bed; Walter’s penis was erect, and his father was stroking his thigh. She punished Walter for this, stating that is why she punched him in the stomach. Upon being requested to remain at the station until the child could be released to her custody, Walter’s mother told Officer Linder she wanted no part of the child, it was “his” son, she just wanted to walk away from the situation, and they could do whatever they wanted to Walter.

Walter’s father, when interviewed by Officer Linder, denied the allegations, indicating the reason the mother made up the complaint was to get back at him. Both he and Walter’s mother used narcotics at one time. He informed Officer Linder that he showered with Walter to bathe him, which was his responsibility.

Detective McNamara, then a juvenile protection officer, testified Walter had no trouble understanding him and answered his questions right away. Walter told him that he had whistled on his father’s peewee. His father would “pee-pee” in his mouth, leaving a very bad taste, and the boy mentioned the word “accident” in this connection. When asked whether he ever touched his father’s “pee-pee,” the five-year-old boy demonstrated how he masturbated his father’s penis. Walter then stopped answering questions.

Substantially the same statements made by the mother to Officer Linder were given by her to Detective McNamara. In addition, she told Detective McNamara that on at least three occasions in the preceding few weeks she had seen Walter in the shower with his father and the father had Walter “grabbing” the father’s penis, which was partially erect.

Detective McNamara saw Walter again one week later at LaRabida Hospital. He was willing to play with blocks and colors but, when questioned about body parts, Walter dropped his head, crossed his arms and turned away. He would make no further statements.

On May 3, Detective McNamara interviewed Walter’s father, who informed him that his wife was crazy and made up the story due to an argument the night before. When asked why Walter would say that he put his penis in Walter’s mouth, the father cried and denied it, adding he did not want to lose his job or go to jail. Walter’s father admitted giving him showers, but kept him at arms’ length to avoid problems. Once, he conceded, his penis may have accidentally brushed up against the boy’s face, but he denied putting it in Walter’s mouth.

Priscilla Cash, a caseworker employed by the office of the public guardian, testified that she has interviewed thousands of children in her position. She interviewed Walter on May 6. He understood her questions and answered appropriately and without hesitation. Walter informed her that more than once his mother hit him in the stomach with her fist. The boy told her that his father peed in his mouth. He did not like taking showers with his father because his father “messed” with his pee-pee and rubbed against his legs and back. Walter further indicated with his hands that his father put his penis in Walter’s “butt.”

On May 6, 1991, a petition for adjudication of wardship was filed in the Cook County circuit court, juvenile division, on behalf of Walter, alleging sexual abuse (Ill. Rev. Stat. 1989, ch. 37, par. 802— 3(2)(iii)); neglect in the environment (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(b)); neglect in providing necessary care (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(a)); and physical abuse (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(2)(i)). The court appointed a temporary custodian and a guardian ad litem for the child. An attorney was appointed for the mother and the public defender appeared for the father. Adjudicatory hearings were held on October 24, November 8 and November 22, 1991, at which the previously described evidence was given.

The State and guardian rested.

A Mt. Sinai staff psychologist assigned to its pediatric ecology unit, Dr. John A. Mason, testified as a witness for both the mother and the father. He had been on staff for almost IV2 years. He interviewed Walter for 45 minutes on June 7 and found him moderately mentally delayed, “avoidant [sic]” and that he had difficulty in understanding questions. When asked to name his private parts he became very agitated and covered his face. Walter had trouble articulating and communicating his thoughts; he had received some form of mistreatment. He feared attacks from caretaking adults, which Dr. Mason interpreted as Walter having been mistreated by his caretakers. Many such fears were focused around mothering figures.

On cross-examination, Dr. Mason acknowledged that he was not aware of Walter’s statement to Officer Linder about sexual abuse by his father. Walter’s agitation and looking away when asked about sexual abuse suggested the possibility that he was sexually abused. When asked about “bad touches,” Walter did not make reference to his father, only to his mother punching him. Dr. Mason found possible sexual abuse by the mother and probable physical abuse by the mother. He never asked Walter about the alleged acts of oral copulation between him and his father.

Medical records from Mt. Sinai Hospital, where Walter had been evaluated, were admitted into evidence. They show an entry, “suspicious for sexual abuse by unknown perpetrator [sic], but not the father” and another note reading “consistent with a history of physical abuse by the mother.” A plan before the child returned home was recommended, as well as strict supervision of the mother’s visitation.

Also contained in the medical records is an entry stating Walter denied that anyone put anything in his mouth, sexual activity with his father and a statement that his mother had on at least one occasion punched him in the stomach. The record further indicates the mother “made allegations that father [sic] touched Walter’s genitals. She has also recanted her statements periodically.”

The court dismissed the physical abuse count and the neglect of necessary care count on defense motions.

Walter’s father testified thereafter on his own behalf. He acknowledged taking showers with his son, but he did this in order to teach him personal hygiene. He denied touching Walter in a sexual manner, or telling Detective McNamara his penis may have brushed against Walter’s face. He denied seeing or stating either to police or hospital personnel that he saw his wife punch Walter in the stomach. He denied lying naked in bed with his son.

After argument, the court found the remaining charges not proved and dismissed the petition and vacated custody. This appeal followed.

I

The guardian contends that the court erroneously found the charge of sexual abuse not proved. The guardian asserts the testimony given relating to Walter’s out-of-court statements was corroborated by his mother’s statements and, therefore, the evidence was legally sufficient to sustain a conviction under section 2 — 18(4)(c) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802— 18(4)(c)) (section 2 — 18(4Xc)).

The proceedings before the circuit court were not criminal, but civil, in nature and were not to be considered adversarial. (In re J.J. (1991), 142 Ill. 2d 1, 8, 566 N.E.2d 1345.) Of primary importance here, as in the circuit court, are the best interests and welfare of the child. In re J.J., 142 Ill. 2d at 9.

In the present case, after weighing all the evidence, the circuit court observed that the mother’s corroborating statements were recanted; Walter indicated no such abuse occurred; Walter had low mental abilities; and the father’s testimony indicated no abuse occurred. The court found the State did not carry its burden, based upon the evidence and on “what I think is not corroborative evidence.”

Section 2 — 18(4)(c) provides:

“(c) Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 18(4)(c).)

The statute demonstrates the legislature’s determination that a victim’s assertions of abuse or neglect are inherently reliable as exceptions to the hearsay rule in an effort to meet “the pervasive and unique problem of child sexual abuse.” (In re Marcus E. (1989), 183 Ill. App. 3d 693, 703, 539 N.E.2d 344.) As suggested by the United States Supreme Court in another context, a child’s statements of abuse or neglect should be deemed sufficiently “trustworthy that adversarial testing can be expected to add little to [their] reliability.” White v. Illinois (1992), 502 U.S._, 116 L. Ed. 2d 848, 112 S. Ct. 736.

The Act requires, however, that the child’s out-of-court statements be corroborated by evidence which, by its nature, makes it more probable than not that the child was abused. (In re C.C. (1991), 224 Ill. App. 3d 207, 213-14 (C.C. & R.C.).) The evidence deemed sufficient to serve in corroboration necessarily varies depending upon the facts involved. In re Brunken (1985), 139 Ill. App. 3d 232, 487 N.E.2d 397.

At the Park Forest police station, where she went voluntarily, Walter’s mother told police that his father was always ’’messing” with Walter. On no less than three occasions in the preceding weeks she saw Walter grabbing his father’s partially erect penis while they showered together. She saw Walter stroking his father’s penis after they had just gotten out of a shower they had taken together. She saw the father and son spend a lot of time together naked in bed. On one such occasion, just prior to the date she struck him in the belly, she saw the child’s penis erected while lying naked with the father, the latter stroking the boy’s thigh. For whatever reasons, Walter’s mother did nothing about restraining, reporting or rectifying the circumstances which clearly endangered and adversely affected her child’s mental and physical health. Parents are not free to stand by as disinterested witnesses when such deleterious events materialize. It was the mother’s obligation, both morally and legally, to intervene on Walter’s behalf. In re Holmes (1975), 28 Ill. App. 3d 104, 106, 328 N.E.2d 35; In re B.K. (1984), 121 Ill. App. 3d 662, 665, 460 N.E.2d 43.

At the time of the events reported by Walter’s mother, there were in effect sections 4 and 5.1 of the Wrongs to Children Act (Ill. Rev. Stat. 1989, ch. 23, pars. 2354, 2355.1) which, respectively, made it unlawful “for any person having the care or custody of any child, wilfully to cause or permit the life of such child to be endangered, or the health of such child to be injured,” or for a parent or stepparent to “knowingly allow[ ] or permit[ ] an act of criminal sexual abuse or criminal sexual assault *** upon his or her child and fail[] to take reasonable steps to prevent its commission or future occurrences of such acts.” (Emphasis added.) The voluntary statements made by Walter’s mother to police demonstrated that she knew of and permitted the sexually abusive acts visited upon Walter, but did nothing about them. The greatest interest she mustered for the protection of Walter was to punch him in the stomach after one of the episodes, punishing the victim, as it appears. Clearly, she both knew of and permitted the endangerment to Walter. Under these circumstances, the statements given by Walter’s mother were tantamount to admissions that she permitted the health of her child to be endangered and permitted acts of criminal sexual abuse upon her child in contravention of the foregoing protective statutes. Those admissions constituted substantive evidence to be considered by the court. (See, e.g., People v. Bell (1975), 27 Ill. App. 3d 171, 177, 326 N.E.2d 507; Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App. 3d 606, 396 N.E.2d 320; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.1, at 525-26 (4th ed. 1984).) When coupled with other evidence in the case, the mother’s admissions supported much of Walter’s version of events as given to the authorities. The mere entry in a hospital record, without more, that the mother “recanted her statements periodically,” is entitled to little if any weight. See, e.g., People v. Dotson (1987), 163 Ill. App. 3d 419, 422-24, 516 N.E.2d 718.

Walter’s own statements to the authorities exhibited every indicia of reliability and established that it was more likely than not that Walter was abused. When first seen by the police, Walter was standing in his kitchen crying hysterically. He told police “Mommie punched me.” Walter later told police that he had “whistled on his daddy’s pee-wee.” He described whistling as “blowing” and pointed to his tongue. He reiterated that he had whistled on his father’s “peewee” and that his dad had an accident in his mouth. The five-year old physically demonstrated how he masturbated his father’s penis. Each police officer testified that Walter could understand and answer the questions they posed in the interviews.

Ms. Cash, the caseworker who had interviewed thousands of children, testified that, without prompting, Walter told her his mother hit him in the stomach with her fist and whipped him with a belt. He told her that his father “peed in his mouth.” Walter stated that he did not like taking showers with his father because his dad “messed with his peepee,” “rubbed on his legs and on his back,” and “put his pee-pee in” — and then pointed to his anus. When Walter talked about the abuse, he appeared sad, his head was down and he seemed depressed. He understood her questions and gave appropriate answers to them.

The medical records which were admitted into evidence also corroborated the conclusion that Walter was sexually and physically abused. The records reflect that when the medical professionals questioned Walter about sexual and physical abuse, his level of psychomotor agitation increased and he covered his face.

The circuit court noted that Walter gave several “different” versions of events. The record, however, reveals no contradictions with regard to the child’s statements to the officers and caseworker. The court relied heavily upon the June 6, 1991, Mt. Sinai Hospital medical records in which five-year-old Walter denied the abuse. The record reflects Walter’s inability to discuss the abuse. According to recognized authorities, Walter’s behavior at Mt. Sinai Hospital was consistent with that of a sexually abused child who had been interviewed previously by several other persons. (See J. Myers, Child Witness Law & Practice §4.15, at 153-54 (1987); Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse and Neglect 177 (1983).) Also, Dr. Mason testified that he was not aware that Walter had already given three people very detailed descriptions of the abuse. He did not ask Walter about showering with his father, acts of oral copulation or similar behavior. Dr. Mason agreed that the boy’s agitation and reluctance to discuss sexual abuse with hospital staff was not unusual for a child who had been sexually abused.

Circumstantial evidence also constitutes sufficient corroboration for a finding under the Juvenile Court Act. In In re K.L.M. (1986), 146 Ill. App. 3d 489, 496 N.E.2d 1262 (K.L.M.), which involved abusive touching, not oral copulation, the court relied upon evidence showing that: (a) the child was anxious, (b) the child had limited opportunity to have learned about the sexual matters which she described, (c) there had been no opportunity to arrange for the child to give false information, and (d) the child showed slight irritation in the genital area. This court recently found the reasoning in K.L.M. to be persuasive in C.C. & R.C., in which one child’s descriptions of the abuse and the observations of teachers, doctors and foster parents established that it was more likely than not that the father sexually abused his children.

Many factors relied upon by the appellate court in K.L.M. are present here. In this case, each time Walter was interviewed, he would become anxious when discussing the sexual abuse. He would lower his head, look away and cross his arms. At LaRabida Hospital, he refused to discuss any topic relating to body parts. When Dr. Mason of Mt. Sinai questioned Walter, he became agitated when the topic of sexual abuse arose. Acts of oral copulation, such as described by Walter, are not susceptible to physical evidence.

Walter provided a vivid description of oral copulation, including references to an unpleasant liquid in his mouth. Walter stated that he had whistled on his father’s “pee-wee,” and that his father had an accident in his mouth. Walter also demonstrated detailed knowledge of masturbation. It is very unlikely, at his age, that Walter could have fabricated these descriptions or graphically demonstrated the manner in which he masturbated his father’s penis, if he had not been taught to do it. There is no evidence that Walter was coached or coaxed into making statements describing the sexual abuse. Rather, the record demonstrates that the boy’s statements were entirely spontaneous. It is inconceivable that this five-year-old child could duplicate the agitated behavior of a sexually abused child in interviews.

Accordingly, the circuit court’s finding of improved sexual abuse is against the manifest weight of the evidence and must be reversed and the cause remanded for further proceedings.

II

The guardian asserts that the circuit court’s finding as to unproved neglect of care necessary to Walter’s well-being (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(a)) also was against the manifest weight of the evidence. The court expressly stated that under the circumstances, the mother’s comments, indicating she did not want anything more to do with the child, did not constitute neglect of necessary care.

Neglect is generally viewed as the failure to exercise the care that circumstances justly demand and encompasses both willful and unintentional disregard of parental duty. (In re B.T. (1990), 204 Ill. App. 3d 277, 280, 561 N.E.2d 1269.) It is not, however, fixed in definition and takes its meaning from the specific circumstances of each case. People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618,104 N.E.2d 769.

In the present case, the mother left the police station without Walter, She announced that she wanted no part of the child. She simply walked away from him and told the police to do what they wanted with Walter. Implicit in these acts and statements is her expressed intention not to care for Walter or to attend to his needs.

The circuit court’s finding as to this issue was contrary to the manifest weight of the evidence and must be reversed and remanded for further proceedings.

Ill

The guardian maintains that the circuit court erred when it found that neglect in the environment injurious to Walter’s welfare was not proved. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(b).) The issue raised is whether this statute was violated by the father having had sexual contact with Walter, his mother punching him for such conduct, and his mother leaving him at the police station and refusing to take him home.

Leaving a child in a sexually and physically abusive environment constitutes neglect in the environment. In re Carlenn H. (1989), 186 Ill. App. 3d 535, 540, 542 N.E.2d 959; In re Weber (1989), 181 Ill. App. 3d 702, 537 N.E.2d 428.

As previously observed, parents have the duty to protect their children from harm. (In re Holmes (1975), 28 Ill. App. 3d 104, 106, 328 N.E.2d 35; In re B.K. (1984), 121 Ill. App. 3d 662, 665, 460 N.E.2d 43.) Their refusal to provide their children with safe and nurturing shelter, as in the case sub judice, clearly falls within the concept of statutory neglect. The circuit court’s finding that neglect in the environment was not proved was against the manifest weight of the evidence and must be reversed and remanded for further proceedings.

IV

The final error identified by the guardian is the circuit court’s dismissal of the physical abuse count (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(2)(i)). The physical abuse is claimed to have been demonstrated by Walter’s statements to police that his mother punched him in the stomach; Walter’s statement to Dr. Mason that his mother punched him; Dr. Mason’s opinion of probable physical abuse by the mother; and Walter’s statement of physical abuse given to Ms. Cash. It is urged that the hearsay statements as related by Officer Linder, Dr. Mason and Ms. Cash are corroborated by the mother’s admission that she hit him the day the police arrived at Walter’s home, and by Officer Linder’s observation of Walter crying upon initial contact. It is urged that the foregoing constitutes sufficient evidence under section 2 — 18(4)(c) to find abuse and, therefore, the court’s finding was against the manifest weight of the evidence. We agree.

The circuit court, after examining the statements attributed to Walter, concluded they were not corroborated as required by section 2 — 18(4Xc), reasoning the evidence was insufficient to support a finding of physical abuse. The court, which expressly asserted it did not condone physical punishment, apparently required corroboration that the mother hit Walter often, distinguishing this from a single incident of hitting which the court did find was corroborated by the mother’s admission. It must be noted that the hospital records speak in terms of “a history” of abuse, as well as the fact that Walter told Ms. Cash his mother hit him more than once. Coupled with Officer Linder’s firsthand observations at Walter’s home, the father’s accusation that the mother punched Walter, and her admission of this fact, it is difficult to see how this behavior could have been discounted by the court. The primary consideration here is the best interests of Walter and his welfare. (In re Brooks (1978), 63 Ill. App. 3d 328, 339, 379 N.E.2d 872.) That being so, a court need not and should not wait for repetitious behavior deleterious to a child’s well-being before taking ameliorative and prophylactic action. (See In re A.D.R. (1989), 186 Ill. App. 3d 386, 393-94, 542 N.E.2d 487.) The circuit court’s finding of unproved physical abuse, under all the circumstances of this case, was against the manifest weight of the evidence and must be reversed and remanded for further proceedings.

Our extensive review of all the record evidence requires that the circuit court findings of unproved charges were against the manifest weight of the evidence and are reversed. The cause is remanded with instructions to restore custodial care of Walter to the Department of Children and Family Services until such time as the appropriate authorities are satisfied that his home environment has been corrected satisfactorily or take such other action as may be necessary.

Reversed and remanded with directions.

SCARIANO and McCORMICK, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL W. KEMBLOWSKI, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2911
    Opinion filed March 26, 1992.

      Rita A. Fry, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Clare M. Wesolik, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant Daniel Kemblowski was convicted of aggravated criminal sexual assault and sentenced to a prison term of 20 years. He contends on appeal that he was not proved guilty beyond a reasonable doubt. He also contends that he was prejudiced by the introduction of evidence that should have been excluded pursuant to the Illinois rape shield statute (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7(a)), that he was improperly impeached with evidence of a subsequently reversed conviction and that he is entitled to a new sentencing hearing.

The 14-year-old complainant testified that she and a group of her friends left school at 2 p.m. on June 3, 1986, and went to a forest preserve located at 107th Street and LaGrange Road in Hickory Hills. They began drinking beer; the complainant drank less than one can. She then went home, changed her clothes and returned to the forest preserve at 5:45 p.m.

While the complainant was sitting at a picnic table talking to her friends, the defendant walked over to them and offered them whiskey. He was dressed in blue jeans, black leather boots, a Harley-Davidson T-shirt and a black leather vest. He had a beard and a mustache and tattoos on his arm and left ear lobe. Although she initially refused, the defendant persuaded the complainant to take a sip of whiskey. When the group ran out of beer, the defendant volunteered to go to a liquor store for more. He said he needed someone to ride with him on his motorcycle to carry the beer. The defendant asked one of the complainant’s friends, who declined, then asked the complainant. She agreed and the two drove to a nearby liquor store where the defendant purchased beer and cigarettes.

On the way back, the defendant turned off into a different section of the forest preserve at 103rd Street and LaGrange Road. When the complainant protested that she wanted to return to her friends, the defendant said he was thirsty and wanted to have a beer. The defendant drove into an open trail, parked the motorcycle and began to drink a can of beer. When the complainant said that she had to get back to her friends, the defendant responded, “All right” and poured the beer onto the ground. The complainant testified that at that point, the defendant grabbed her, threw her to the ground and asked if she was a virgin. She responded affirmatively. The defendant did not object to this testimony. According to the complainant, the defendant took out a knife, held it to her neck and forced her to perform acts of oral and vaginal intercourse. As the defendant took off the complainant’s shirt, it ripped under both arms. After the sexual acts were completed, the defendant wiped his penis on the complainant’s shirt and told her to get dressed. As she did so, she grabbed a rock, struck the defendant on the head and ran out of the woods onto the highway. There she flagged down a motorist and told him that she had been raped.

Dennis Zaruszak, the motorist, testified that he was driving northbound on LaGrange Road when he saw a young girl run out of the woods waving her arms. He stopped and she entered the car. She was breathing heavily, appeared to be very upset and looked like she had just gotten dressed. She asked him to get her out of there and told him that she had just been raped. He drove her to the Hickory Hills police station.

Officer Emmett O’Neill spoke with the complainant at the police station. He testified that she was crying and breathing very rapidly. Her eyes were red, her clothing was torn and dirty and her hair was messed. After the complainant’s mother arrived, the complainant was taken to Christ Hospital.

Dr. Barbara McCreary testified that she examined the complainant and found multiple fresh scratches on her back and arms, multiple bruises on her chest and abdomen and skin discoloration on her neck and both cheeks due to trauma. Dr. McCreary also testified that the complainant’s hymen was disrupted. The defendant did not object to this testimony.

On June 6, 1986, the police arrested the defendant and recovered a knife from his person.

The 30-year-old defendant testified that on the day of the incident he went to the forest preserve and met a group of people who were drinking. After some time, he and a woman named April went to another part of the forest preserve and engaged in sexual intercourse. When the defendant returned to the group, he saw the complainant sitting at a picnic table with her friends. She smiled at him, so he took a bottle of whiskey and went to talk to her. They drank the whiskey and smoked a marijuana cigarette. The defendant offered to take the complainant for a ride on his motorcycle. She told him to wait while she went home and changed clothes.

When the complainant returned, she and the defendant rode on his motorcycle to a liquor store where the defendant bought beer and cigarettes. They drove to another area of the woods, where they engaged in sexual intercourse. According to the defendant, the complainant consented to have sex with him but became argumentative afterward. They continued to argue during the ride back until the defendant told the complainant to get off of the motorcycle and walk.

After the defendant testified, the State informed the jury that in 1983 the defendant was convicted of a felony in Illinois and received an 18-month period of conditional discharge; in 1984 he was convicted of a felony in Florida and received a prison term of one year and one day; and in 1987 he was convicted of another felony in Illinois and received a 10-year sentence. The jury was instructed that it could consider the prior convictions in determining the defendant’s credibility.

In closing argument, the prosecutor referred to the complainant’s testimony that the defendant “asked if she was a virgin and she told him, ‘Yes, I am.’ ” The defendant did not object to this argument.

During the sentencing hearing, the trial court considered the defendant’s 1987 conviction for aggravated criminal sexual assault in sentencing the defendant to a 20-year term. The 1987 conviction was subsequently reversed and remanded by this court in People v. Kemblowski (1990), 201 Ill. App. 3d 824, 559 N.E.2d 247.

The defendant first contends that he was not proved guilty beyond a reasonable doubt. Essentially, he contends that the complainant’s testimony that the sexual activity occurred without her consent was incredible.

In People v. Schott (1991), 145 Ill. 2d 188, 203, 582 N.E.2d 690, the Illinois Supreme Court held that review of all criminal convictions, including sex offenses, is governed by the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267. According to Collins, criminal convictions will not be reversed for insufficient evidence unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. The test 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. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. People v. Byron (1987), 116 Ill. 2d 81, 90, 506 N.E.2d 1247.

The issue in this cause was whether or not the complainant consented to the sexual activity with the defendant. The defendant argues that the evidence shows consent because the complainant had been drinking with the defendant and agreed to go for a ride on his motorcycle. The State, however, produced an outcry witness who testified that the complainant came running out of the woods, jumped into his car and told him that she had been raped. He testified that she was breathing heavily and appeared to be very upset. He took the complainant to the police station, where she spoke with a police officer who later testified that she was crying and breathing rapidly and that her clothes were torn and dirty. The complainant was taken to a hospital and examined by a doctor who testified that she had several fresh scratches on her back and arms, bruises on her chest and abdomen and skin discoloration on her neck and both cheeks due to trauma. The outcry testimony and the physical evidence clearly corroborate the complainant’s testimony that force was used. In our view, ample evidence exists to support the defendant’s conviction for criminal sexual assault.

The defendant next contends that his right to a fair trial was violated when the State introduced evidence which should have been excluded pursuant to the Illinois rape shield statute. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7(a).) Specifically, the defendant objects to the complainant’s testimony that she responded affirmatively when the defendant asked if she was a virgin, to Dr. McCreary’s testimony that the complainant’s hymen was disrupted and to the prosecutor’s reference to the complainant’s virginity during closing argument.

The record reveals that the defendant failed to object to the testimony and comment which he now claims constituted grounds for reversal. Generally, a failure to object at trial will result in a waiver of the issue for purposes of review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) An exception exists where the court invokes the plain error doctrine, which is designed to correct any serious injustices which have been done to the defendant. {People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) The plain error doctrine may be applied where the evidence is so close that there is a possibility that an error not objected to may have resulted in the conviction of an innocent person. (People v. Carlson, 79 Ill. 2d 564, 404 N.E.2d 233.) The doctrine also encompasses those errors of such magnitude that their commission denied the accused a fair and impartial trial. People v. Carlson, 79 Ill. 2d 564, 404 N.E.2d 233.

We do not believe that the evidence in the case at bar was so closely balanced that the references to the complainant’s virginity could have caused an innocent man to be convicted. Nor do we believe that the evidence and comment in question served to deny the defendant a fair trial. We therefore decline to invoke the plain error rule, and we consider the issue waived. In his reply brief the defendant argues, as an alternative ground to the plain error doctrine, that defense counsel’s failure to object to the evidence constituted ineffective assistance of counsel. Reply briefs are limited to responses to arguments already made, and the raising of new issues is impermissible. (134 Ill. 2d R. 341(g).) We therefore will not consider this additional issue.

The defendant next contends that he was denied a fair trial because the State was allowed to introduce, for impeachment purposes, a prior conviction which was subsequently reversed. The defendant cites Loper v. Beto (1972), 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014, and People v. Carter (1979), 72 Ill. App. 3d 871, 391 N.E.2d 427, both of which stand for the proposition that convictions obtained in the absence of an effective waiver of counsel cannot be used for impeachment purposes.

Generally, a prior conviction is admissible for impeachment purposes despite the pendency of its appeal. (People v. Bey (1969), 42 Ill. 2d 139, 146, 246 N.E.2d 287, 291.) In Loper, the Supreme Court determined that the absence of counsel affected the integrity of the fact-finding process and held that the retroactive effect of Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, rendered the conviction void. The Court stated that a void conviction could not be used to impeach a defendant’s credibility. Illinois courts have declined to extend the holding in Loper to cases where the defendant was impeached with a conviction subsequently reversed for insufficient evidence (People v. Gardner (1982), 105 Ill. App. 3d 103, 117, 433 N.E.2d 1318) or where the conviction was subsequently reversed based on a finding that evidence had been illegally seized (People v. Miller (1975), 27 Ill. App. 3d 788, 792, 327 N.E.2d 253). Thus, Illinois has taken the position that where the prior conviction was not void at the time of its introduction into evidence it does not constitute reversible error for the State to utilize the conviction for purposes of impeachment even though it is later reversed on appeal. People v. Miller, 27 Ill. App. 3d 788, 327 N.E.2d 253.

In the case at bar, the defendant’s prior conviction was reversed based on the introduction of evidence which should have been excluded pursuant to the rape shield statute. (People v. Kemblowski (1990), 201 Ill. App. 3d 824, 559 N.E.2d 247.) The admission of such evidence may under certain circumstances be deemed harmless error (see People v. Uzelac (1989), 179 Ill. App. 3d 395, 534 N.E.2d 1250), and does not render a conviction void. Moreover, as in People v. Miller (1975), 27 Ill. App. 3d 788, 792, 327 N.E.2d 253, the defendant in the case at bar was impeached with other prior convictions which were not subsequently reversed. Under the circumstances, we do not believe that the defendant is entitled to a new trial.

Finally, the defendant contends that he is entitled to a new sentencing hearing because the trial court considered his subsequently reversed conviction in determining the sentence. The State concedes this issue. We therefore vacate the defendant’s sentence and remand the cause for a new sentencing hearing.

Accordingly, the defendant’s conviction is affirmed, the sentence is vacated and the cause is remanded for a new sentencing hearing.

Affirmed in part; vacated and remanded in part.

LINN and McMORROW, JJ., concur.