text:
    STALEY CONTINENTAL, INC., Plaintiff-Appellee, v. VENTERRA SALES AND MANAGEMENT COMPANY et al., Defendants-Appellants (Household Commercial Financial Services, Inc., et al., Defendants-Appellees).
    First District (3rd Division)
    No. 1—89—1878
    Opinion filed March 31, 1992.

      Jay A. Canel and Peter M. King, both of Chicago, for appellants.
    Robert J. Driss, Michele Odorizzi, and Jodi G. Eisenstadt, all of Chicago, for appellee Household Commercial Financial Services, Inc.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Staley Continental, Inc. (Staley), brought this inter-pleader action for a determination as to whether it should deduct brokers’ commissions owed to defendants Venterra Sales and Management Company and Jayboc Realty, Inc. (Brokers), from the monthly rental payment due to defendant Household Commercial Finance Services, Inc. (Household). Paine/Wetzel Associates, Inc. (Paine/Wetzel), was also a defendant sub judice, but is not a party to this appeal. The parties filed cross-motions for summary judgment. The trial court denied Paine/Wetzel and the Brokers’ motion for summary judgment and granted summary judgment in favor of Household. On appeal, the Brokers contend that (1) the rental payments at issue were not subject to Household’s mortgage and security interest; (2) Household consented to a subordination of its senior security interest in the rental payments at issue; (3) a question of fact exists as to the issue of consent making summary judgment improper as a matter of law; and (4) equity demands that the Brokers receive the commissions they earned. We affirm.

In December 1984, Wieboldt Stores, Inc. (Wieboldt), entered into a commercial lease agreement to lease a portion of the Wieboldt Distribution Center located at 250-300 S. Wieboldt Drive, Des Plaines, Hlinois (Distribution Center), to Bit O’Gold Foods, Inc. (Bit O’Gold). Three commercial real estate brokers were involved in the negotiations and execution of the lease. Paine/Wetzel represented Bit O’Gold; Venterra represented Wieboldt; and Jayboc acted as the coordinating broker on the deal. Wieboldt paid a commission on this original lease, which is not at issue in this matter.

On December 19, 1985, Household loaned Wieboldt $32.5 million. The loan was secured by a mortgage on Distribution Center, a security agreement, a financing statement, and an assignment of lease and rents, which included Wieboldt’s rights and obligations under the December 1984 lease with Bit O’Gold. On December 20, 1985, Household recorded the above-mentioned documents with the Cook County recorder of deeds.

The mortgage and assignment of lease and rents gave Household a security interest in “Rents,” which were defined in the security agreement as:

“All rents, issues, profits, royalties, avails, income and other benefits derived or owned by the Mortgagor directly or indirectly from the Real Estate, the Lease-hold Estate or the Improvements.”

On July 23, 1986, Wieboldt and Bit O’Gold entered into the first amendment to their lease (First Amendment). First Amendment provided for the lease of additional space in Distribution Center to Bit O’Gold and the payment of additional rents to Wieboldt. Wieboldt, however, did not have sufficient cash on hand to pay the Brokers’ commissions for the services performed in arranging First Amendment. By agreement of Wieboldt, Bit O’Gold and the Brokers, Bit O’Gold assigned a portion of its rent due to Wieboldt to the Brokers over the next 36 months to cover the payment of the Brokers’ commissions. The parties to First Amendment failed to obtain the express written consent of Household as required by section 1.15 of the mortgage and assignment of rents section of the December 1985 Household-Wieboldt loan agreement.

Later in July 1986, CFS Continental, Inc. (CFS), purchased Bit O’Gold. Pursuant to the purchase, Bit O’Gold assigned its interest in the lease with Wieboldt to CFS. On or about January 1, 1987, CFS merged with and into Staley. As a result of the merger, Staley succeeded to all the rights and obligations of CFS.

On September 23, 1986, Wieboldt filed for involuntary bankruptcy in United States Bankruptcy Court for the Northern District of Illinois, Eastern Division.

In 1987, significant roof repairs were required at the Distribution Center. Wieboldt did not have sufficient cash on hand to effectuate the repairs. On May 12, 1987, Wieboldt and Staley entered into the second amendment to the lease (Second Amendment), which provided that Staley would make and pay for the necessary repairs to the roof, but would receive a rent reduction over the next 47 rental payment periods equal to the cost of the repairs. On June 4, 1987, the bankruptcy court approved the Second Amendment.

On October 28, 1987, the bankruptcy court approved the sale of Distribution Center from Wieboldt to Business Realty, Inc. (BRI), a wholly owned subsidiary of Household, subject to Household’s mortgage and security interest and Staley’s lease. Between November 1987 and February 1988, Staley paid BRI the monthly rent, less the Brokers’ commissions and deductions for roof repairs.

On March 18, 1988, Household demanded, and BRI consented to, direct rental payments from Staley to Household pursuant to the mortgage and assignment of rents. The payments amounted to the full amount of the lease rental payments less the agreed upon deductions for roof repairs. Household refused to allow a deduction for the Brokers’ commissions.

On May 6, 1988, Staley filed this interpleader action for a determination as to whether it should deduct the Brokers’ commissions from the rental payments to Household. At the close of discovery, the Brokers and Household filed cross-motions for summary judgment. On June 9, 1988, the trial court entered an order denying Paine/Wetzel and the Brokers’ motion for summary judgment and granting summary judgment in favor of Household on the basis that Household’s prior perfected security interest gave it a right to the rents at issue until Wieboldt’s debt was paid in full. This appeal followed.

The Brokers contend that the rents at issue were not subject to Household’s mortgage and security interest. We disagree.

It has been well established in this State since 1845 that creditors can take steps under the law to secure the payment from debtors of indebtedness from both subsequent secured creditors and unsecured creditors. (See Ill. Ann. Stat., ch. 30, par. 30, Historical Note, at 495 (Smith-Hurd 1969).) Deeds, mortgages, powers of attorney, and other instruments relating to or affecting the title to real estate shall be recorded in the county in which such real estate is located, and shall take effect and be considered notice at the moment of filing as to all creditors and subsequent purchasers of a prior interest in the real estate. (Ill. Rev. Stat. 1989, ch. 30, pars. 27, 29, 30.) Assignment of rents documents such as the one found in the present case are deemed interests which are authorized to be recorded as an “instrument relating to or affecting the title of real estate” in order to obtain priority over subsequent secured and unsecured creditors. See Ill. Rev. Stat. 1989, ch. 30, par. 27; Kahn v. Deerpark Investment Co. (1969), 115 Ill. App. 2d 121, 253 N.E.2d 121.

It is plain that the definition of rents set forth in the security agreement unambiguously encompasses the rental payments in issue. In addition, when Household filed the mortgage and assignment of lease and rents with the Cook County recorder of deeds on December 20, 1985, it had an interest which could be protected. Accordingly, we conclude that Household followed all necessary steps set forth under the law to ensure that its security interest in Distribution Center and the accompanying rental payments in issue would have priority over all unsecured and any subsequent creditors arising after December 20, 1985.

The Brokers’ second argument is that Household consented to the subordination of its security interest in Distribution Center and the accompanying rental payments in issue by failing to object to the bankruptcy court’s approval of Second Amendment. We disagree.

Section 1.15 of the Household-Wieboldt loan agreement, which had been properly recorded on December 20, 1985, contained the following provision:

“1.15. No Assignments; Future Leases. The mortgagor will not cause or permit any Rents, issues, profits, Leases, Contracts for Sale, or other contracts relating to the Premises, or any interest in any thereof, to be assigned, transferred, conveyed, pledged or disposed of, to any party other than the Mortgagee without first obtaining the express written consent of the Mortgagee thereto.”

It is undisputed that Household did not give express written consent to any subordination of its interests. The Brokers contend, however, that Household’s tacit acceptance of First Amendment during the bankruptcy court’s approval of Second Amendment constitutes consent to subordination of its security interest in Distribution Center and the accompanying rents to the Brokers. This contention is without merit.

Second Amendment involves merely a substitution of payment for the roofing repairs from Wieboldt to Staley because of Wieboldt’s cash shortage. Staley received a decrease in its rental payments to Wieboldt in an amount equal to the payments made on the expenditures for the roofing repairs. While the cash received by Wieboldt is decreased by the amount of the reduced rent, there is an equal increase in the value of Distribution Center by the amount of the roof repairs. Thus, there is no threat of impairment of Household’s collateral or change in its position as a secured creditor as a result of Second Amendment which would require Household to object to the approval of Second Amendment by the bankruptcy court. Accordingly, Household’s failure to object cannot be considered consequential to the issue of consent.

Our review of the record does not support a finding that Household consented to the subordination of its security interest in Distribution Center to the Brokers. Furthermore, even if we were to rule that the failure of Household to object to First Amendment was considered consent to anything, that consent would be only to the existence of an interest junior to its own and not to subordination of its senior interest to the Brokers. We, therefore, conclude that Household neither expressly nor implicitly consented to a subordination of its security interest in Distribution Center to the Brokers.

The Brokers next argue that a question of material fact exists as to when Household became aware of First Amendment making summary judgment improper as a matter of law. We disagree. The issue of when Household obtained knowledge of First Amendment is immaterial to the issue of consent or to any issue in this case. The mere existence of factual questions that are unrelated to the essential elements of the cause of action will not preclude a court from granting summary judgment to the moving party. (Village of Beckmeyer v. Wheelan (1991), 212 Ill. App. 3d 287, 294, 569 N.E.2d 1125, 1130.) Accordingly, because the issue of consent is of no consequence to the determination of any matter in dispute in this case, we conclude that the trial court did not err when it granted summary judgment in favor of Household.

The Brokers’ final contention is that equity requires a result favoring the Brokers. We are unsure, however, which equitable doctrine the Brokers would like us to invoke since they failed to assert any specific doctrine or principle. There are no cases in IUinois either presented by the Brokers or which we could find that support the proposition that lien priorities should be disregarded if a junior creditor has contributed some added value to the property in question.

While we recognize that the Brokers spent over 300 hours arranging First Amendment and that Household derived a substantial benefit in both the value of its collateral and the amount of money it received in rental payments because of the Brokers’ efforts, Household loaned Wieboldt millions of dollars relying on the enforceability of its liens. It followed the letter of the law in obtaining and perfecting a security interest in the collateral it received. The Brokers were or should have been aware of Household’s prior recorded security interest in Distribution Center and the accompanying rental payments, and were fully aware of Wieboldt’s poor financial condition when the parties entered into the subsequent leasing arrangement. Thus, the risks to the Brokers which were present in their undertaking were or should have been fully understood in light of all the existing circumstances.

In conclusion, we will respect the well-established law of secured collateral and secured transactions. Any other holding would allow debtors to unilaterally destroy the secured creditor’s senior interest in rent or the like simply by assigning it to a third party rather than collecting it directly themselves.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.

       Justice White heard oral arguments in this case prior to his retirement. Justice Tully was designated the third member of the panel and has read the briefs and listened to the tapes.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    RALPH MAGGETTE, Plaintiff-Appellant, v. PEOPLES GAS LIGHT AND COKE COMPANY, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—1977
    Opinion filed April 3, 1992.

      Robert J. Austin and Sam Cuba, both of Jeffrey D. Schultz, of Chicago, for appellant.
    Barbara Baran and Kevin J.P. O’Hara, both of Ross & Hardies, of Chicago, for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Ralph Maggette was injured on September 20, 1982, when the street pavement on which he was driving suddenly collapsed. He filed suit against Peoples Gas Light and Coke Company (Peoples Gas), alleging their negligence in performing prior work at the site of the occurrence. The trial court awarded summary judgment to Peoples Gas on July 13, 1989, and on June 21, 1990, denied plaintiff’s motion for reconsideration. Plaintiff now appeals both the grant of summary judgment and the subsequent denial of his claim for reconsideration.

Assuming, arguendo, that the initial grant of summary judgment for defendant was not in error, we turn to plaintiff’s contention that the denial of his request for reconsideration was inappropriate. In granting defendant’s motion for summary judgment, the trial judge stated:

“Counsel, if you can come up with any evidence that the hole they dug over here caused this — the ground under this one to come out, I will be happy to reconsider it. But you have thirty (30) days to do it. Okay.”

Thereafter, the plaintiff filed a timely motion to reconsider, attaching the affidavit of his expert witness. At this time, defendant urged the court to consider the opinion of our supreme court in Delgatto v. Brandon Associates, Inc. (1989), 131 Ill. 2d 183, 545 N.E.2d 689, which held that an expert affidavit first introduced in a motion for reconsideration “should not be allowed in the absence of a reasonable explanation why it was not available at the time of the original hearing.” (Delgatto, 131 Ill. 2d at 195, 545 N.E.2d at 695.) Notwithstanding the fact that he had previously told plaintiff that he would consider additional evidence if filed within 30 days, the trial judge relied upon Delgatto and struck the expert affidavit. Without the expert affidavit the plaintiff’s motion for reconsideration had no supporting evidence, so it was denied.

Without departing from the authority established by Delgatto, we find that the trial judge’s comments at the hearing on the motion for summary judgment were equivalent to an order granting leave to amend, and unambiguously invited the subsequent refiling of plaintiff’s motion for reconsideration with supporting affidavit. (See Romo v. Allin Express Service, Inc. (1991), 219 Ill. App. 3d 418, 579 N.E.2d 924 (in which we found that the trial judge’s denial of a section 2 — 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401) “without prejudice” was substantially similar to an order granting leave to amend, and as such provided the authority for plaintiff to file a second such petition).) In the instant action, plaintiff’s counsel relied upon the trial judge’s “invitation” to conduct additional discovery and present the resulting expert affidavit. To deny his resulting efforts is both legally unsound and undeniably unjust. We therefore reverse the trial court’s orders striking the expert affidavit and denying plaintiff’s motion for reconsideration, and remand this cause with directions to consider plaintiff’s claims anew.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRIS D. SOLER, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1854
    Opinion filed April 3, 1992.

      Paul Bradley, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Michael J. Pugh, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial, defendant, Chris D. Soler, was convicted on two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)) and received concurrent terms of four years’ probation.

On appeal, defendant contends that (1) his convictions should be reversed because the State produced insufficient evidence to prove him guilty beyond a reasonable doubt, (2) the trial court erred in refusing to consider certain evidence presented by him, and (3) the trial court erred in denying his motion in limine to exclude the testimony of the complainant’s sister.

The record reveals that defendant was charged in two separate indictments with three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)). Indictment 89 — CR—19860 asserted that between February 1, 1986, and July 31, 1986, defendant, a person over 17 years of age, fondled the breasts of the complainant, K.M., a person under 13 years of age. Indictment 89 — CR—19861 asserted that between July 1, 1986, and July 31, 1988, defendant, a person over 17 years of age, committed two acts of improper sexual conduct upon the complainant, a person under 13 years of age. Count I alleged that defendant rubbed the vagina of the complainant with his hands, and count II alleged that defendant rubbed the breasts of the complainant with his hands.

Following a bench trial, defendant was convicted of the offenses charged by indictment 89 — CR—19860 and by count II of indictment 89 — CR—19861, both of which alleged that defendant had touched the breasts of the complainant. The trial court found defendant not guilty of the charge presented in count I of indictment 89 — CR—19861, which alleged that defendant had touched the vagina of the complainant. Defendant received concurrent terms of four years’ probation.

The evidence adduced at trial established that during their marriage, Kevin M. and Alice M. had three children. The complainant, K.M., bom July 10, 1975, was the eldest. The couple also had a son, S.M., and another daughter, M.M. At the time of trial, complainant was 14 years old, S.M. was nine years old, and M.M. was eight years old. Kevin M. and Alice M. divorced in 1984. After their divorce, Kevin M. and Alice M. had joint custody of their children, who divided their time between the homes of their father and mother. In September of 1985, Kevin M. remarried. His second wife, Christina, had two children born during a previous marriage. In June of 1986, Alice M. married the defendant and took the surname of Soler.

The complainant testified that until September 1988, she resided at various locations along with her mother, the defendant, her brother, S.M., and her sister, M.M. In June 1986, complainant lived with her mother and her siblings in a home on Kirkwood Avenue in Chicago, Illinois. After the marriage of defendant to Alice Soler, defendant moved into that home on Kirkwood Avenue. Approximately one month later, defendant, Alice Soler, complainant, and her siblings moved to a house on Tinker Way in Glenview, Illinois. A few months later, they moved to another house on Mohawk Lane in Glenview, Illinois. In September of 1988, they moved to a home in Hinsdale, Illinois. Approximately one week later, complainant moved into her father’s home in Northfield.

Complainant testified that after his marriage to Alice Soler, defendant refused to answer the children unless they called him “Popi” or “Dad.” Consequently, at defendant’s insistence, complainant and her siblings referred to defendant as “Popi.” Complainant explained that she and her siblings referred to Christina, their father’s second wife, as “Marmy,” a name which had been made up by M.M. as a way of distinguishing Christina from their mother. Complainant indicated that the children voluntarily called Christina “Marmy,” but were forced to call defendant “Popi.”

Complainant testified that when defendant began dating her mother, complainant liked him and felt that he was nice and fun. She acknowledged on cross-examination that she had been affectionate with defendant during this time. Complainant stated, however, that her feelings toward defendant changed after he sexually abused her. Complainant stated further that defendant teased her and her siblings and played practical jokes on them and that, although their mother observed this behavior, she did nothing to stop it.

Complainant described the family’s habit of gently rubbing another’s arms, legs, torso, back, face, and shoulders in a casual way. The family referred to this conduct as “nicing,” and complainant stated that it began before defendant ever came into their lives.

Complainant testified that the first incident of sexual abuse by the defendant occurred approximately one month after defendant married Alice Soler and while they lived in the house on Kirkwood Avenue in Chicago. Complainant stated that one evening when she and defendant were alone in the family room watching television, defendant came up to her and said he was going to “nice” her. He began by rubbing complainant’s arm and then started rubbing her stomach. He then moved up underneath her shirt and rubbed her chest and breasts. Defendant asked complainant whether she liked it while he rubbed her bare skin with his hands. Complainant testified that she was 10 years old when this incident occurred and that she was not yet developed as a woman.

Complainant stated that after they moved to the home on Tinker Way in Glenview, defendant sometimes came into her bedroom at night and touched her bare chest and breasts underneath her pajamas. These incidents occurred while S.M. and M.M. were asleep in the same room. Complainant indicated that defendant would be in her bedroom doing this for approximately one-half hour. Complainant testified further that on another occasion, defendant began rubbing her vaginal area which she described as “not exactly like where I go to the bathroom but a little bit above, between my legs.” When defendant did this, he put his hand underneath complainant’s underpants and touched her bare skin.

Complainant stated that she told her mother about this incident a couple of days after it occurred and approximately one month after the first incident which took place in the Kirkwood Avenue home. Complainant testified that she told her mother that defendant had been touching her on her breasts and under her pants and that she did not like it. She attempted to show her mother how defendant had touched her, but she became very embarrassed, started crying, and stopped. Complainant testified that her mother responded by saying “[a]re you sure? You better not be lying to me because things like this can break up a marriage. I just don’t want him to leave. [I]f he’s doing this to you, I will have to separate.” Complainant told her mother that she was telling the truth, and her mother said that she would talk to defendant.

Complainant testified that her mother subsequently told her that defendant was astonished by her claim that he had touched her in a sexual manner and said that he was only “nicing” her, that he didn’t mean to make her feel uncomfortable, and that he would never do it again. Complainant stated that defendant did not touch her for about one month, but he then began doing it again. Complainant testified that she did not tell her mother about these subsequent incidents because “she didn’t make it stop the first time.” Complainant stated further that during a family trip to Wisconsin, defendant put his mouth on her breasts.

Complainant also testified that she did not tell her father about defendant’s conduct and that she did not tell Rosemary Schultz, the family therapist, because Ms. Schultz had previously indicated that she would be required to report any incidents of abuse and because complainant “did not want everyone to know.”

Complainant testified that on August 3, 1989, she went to lunch at Water Tower Place with her sister, M.M., her stepmother, and her stepsister. Complainant stated that during this outing, M.M. told complainant and their stepmother that defendant had touched her in a sexual way. Complainant stated that she and M.M. began to cry and that she hugged M.M. “because [she] felt so bad for her.” Complainant then told her stepmother that defendant had been touching her for three or four years. Complainant testified that her stepmother called her father and relayed to him what she had said. After her father came home from work that evening, complainant told him that defendant had been touching her, and she was present when he called Rosemary Schultz, their family therapist, to make an appointment for complainant the following day.

On cross-examination, complainant denied that she ever requested that defendant “nice” her or come into her bedroom after she told her mother about the incidents of abuse. Complainant testified that she did not cry out to her mother when defendant abused her because defendant had a very bad temper and she was afraid to tell anyone.

Complainant stated that she liked her stepmother very much and that it felt more like a family at her father's house than at her mother’s house after the divorce and before defendant moved in. Complainant also stated on cross-examination that her mother did not take care of S.M. or M.M. when they got hurt and that complainant felt she should take her mother’s role and help the younger children to feel better. Complainant indicated that she took the role of a mother to her younger brother and sister and that she felt at that time that she was a better mother to them than Alice Soler was. Complainant testified that the main reason for her desire to live with her father was because of the sexual abuse by the defendant. She stated further that other reasons included conflicts she was having with her mother. Complainant stated that after she moved in with her father in September 1988, she wanted S.M. and M.M. to come and live with her there, but she did not mention this to them.

Complainant acknowledged that she sided with her father in the custody dispute between him and her mother. Complainant testified that while she spoke with a guardian appointed to represent her in the custody dispute, all she could think about was the way her mother had failed to protect her from the defendant’s conduct. Complainant acknowledged, however, that she did not tell the court-appointed guardian about the sexual abuse by the defendant, and she stated that she was angry with her mother at that time.

Complainant indicated that after defendant married Alice Soler, he began setting down rules and became the disciplinarian of the house. Complainant stated that she did not like the defendant taking the role of a father because she already had a father, but testified that “[she] didn’t feel that much hate toward him becoming [her] father at that time.”

On redirect examination, complainant testified that she had attempted to tell a friend about the sexual abuse by the defendant, but she was embarrassed and afraid to tell other people.

Complainant testified that after M.M. told their stepmother that she had been sexually abused by defendant, complainant was prompted to reveal that defendant had sexually abused her for several years. Complainant explained that she decided to tell others of the abuse she had suffered because “since they knew about [M.M.], [complainant] could tell. Whatever was going to happen, could happen.”

Complainant testified that on July 20, 1989, she wrote a seven-page letter to her mother in which she described several problems with and complaints about her relationship to her mother. When questioned as to why she did not mention defendant’s sexual abuse in this letter, complainant stated “[bjecause it was already practically four years since he had done it. And at that point I decided I wasn’t going to tell anyone. And I didn’t want to write about it or tell anyone. I didn’t even want to think about it. So, when I was writing about it, I don’t even think I was thinking about putting it in.”

Dr. Rosemary Schultz testified that she was a clinical psychologist and that her practice focused on children and family services. Schultz stated further that she had previously worked with approximately 70 to 75 children who were the victims of sexual abuse.

Schultz testified that prior to trial, she had treated the complainant for approximately seven years and had treated M.M. for approximately four years. Schultz began treating complainant to determine whether there were any adverse effects resulting from the divorce of her parents. When Schultz first began treating complainant, she exhibited signs of anxiety which were equivalent to a level two according to the Diagnosis and Statistics Manual, Third Edition (DSM3), a manual published by the American Psychiatric Association and used by mental health professionals to describe a variety of symptoms and to diagnose mental disorders.

Schultz testified further that approximately two years prior to trial, she noticed a change in the complainant’s personality and behavior, the symptoms of which were equivalent to a level six as set forth in the DSM3. Schultz stated that complainant’s symptoms at this time were markedly different from those exhibited at the time of her parents’ divorce and that, according to the DSM3, a level six would not be associated with a custody battle. Schultz explained that complainant was not as spontaneous; her eye contact was poor; she was withdrawn and isolated; and she had difficulty concentrating, in addition to exhibiting other symptoms. Schultz diagnosed complainant as having an adjustment disorder with mixed emotional features and a delayed onset of post-traumatic stress syndrome. Schultz stated that a delayed commencement of the symptoms of post-traumatic stress syndrome was not unusual.

Schultz testified on cross-examination that she received a telephone call from complainant’s father during the evening of August 3, 1989, and that he said he was concerned about the possibility that M.M. might have been sexually abused. Schultz stated further that complainant’s father also said that he had a suspicion that complainant might have been abused; “[w]e don’t know about [complainant].”

Schultz testified that on August 4, 1989, complainant identified the event that triggered the post-traumatic stress syndrome by telling Schultz that she had been touched and hurt by her stepfather. Complainant told Schultz that defendant had touched her “low but not inside.” Schultz concluded that defendant had touched complainant’s lower abdominal region, but did not touch her vaginal region. When questioned as to whether complainant said defendant had touched her breasts, Schultz said that she could not recall. Schultz indicated that it seemed as though she would have included it in her report if complainant had made such a statement. Schultz acknowledged that her report did not reflect that complainant said defendant had touched her breasts.

On cross-examination, Schultz stated that of the 40 patients she treated in private practice, seven were related to complainant’s father. Schultz was aware complainant’s father wanted full custody of the children as early as July or August 1989, and she prepared notes because she knew she might have to testify at a custody proceeding. Schultz stated, however, that she did not keep notes at the request of complainant’s father or stepmother, but because both complainant and M.M. had made complaints of sexual molestation. Schultz stated further that complainant did not exhibit an extreme or severe level of the symptoms of sexual abuse or post-traumatic stress syndrome prior to August 4, 1989.

Schultz stated that complainant was very protective of S.M. and M.M. and described her relationship to them as “an animal fighting for her young.” Schultz acknowledged that if complainant’s allegations were true, she, knowing that defendant was a child molester, moved into her father’s home in July 1988 and left M.M. and S.M. to stay in defendant’s house several days each week. Schultz stated, however, that complainant was too frightened to tell anyone about this situation. Schultz stated further that complainant liked defendant when he first began dating her mother. After their marriage, however, she voiced several complaints about defendant but never mentioned sexual abuse. Schultz indicated that when complainant decided to live with her father full time, she told Schultz that she (complainant) would be a better mother for S.M. and M.M. than Alice Soler was.

Schultz testified that she had treated complainant’s sister, M.M., for four years, beginning after her parents’ divorce. Schultz began noticing changes in M.M. during the summer prior to trial. Schultz stated that M.M. appeared insecure, she cried more, would wake at night and look for her mother and father, and she would stand in her room and reassure herself that there was not a man in her room. On August 4, 1989, M.M. told Schultz that defendant had sexually abused her on two occasions by touching her bare breasts, stomach, and the area below her stomach. When Schultz asked M.M. to demonstrate defendant’s conduct using a Raggedy Ann doll, M.M. touched the stomach of the doll. When Schultz pointed to the area between the legs of a Raggedy Ann doll, M.M. indicated that defendant had not touched her there.

Schultz diagnosed M.M. as having an adjusting disorder and post-traumatic stress syndrome with symptoms which were of the same level of severity as those of complainant. Schultz determined that sexual abuse by defendant triggered M.M.’s symptoms of post-traumatic stress syndrome. Schultz testified further that she received a telephone call from complainant’s father while she was in a treatment session with M.M. on August 9, 1989. During that telephone conversation, complainant’s father told Schultz that he had obtained custody of the children and that they would be coming to live with him. When Schultz relayed this information to M.M., she threw up her hands and said “yeah.” After Schultz told M.M. she might not be able to see her mother, M.M. said “yeah” again and cheered. Schultz testified that M.M. thereafter made an accusatory statement indicating that her mother did not satisfy her needs, primarily nurturing, protection, and attention.

Schultz testified that throughout all of their sessions since August 4, 1989, neither complainant nor M.M. varied her description of the defendant’s conduct.

Complainant’s eight-year-old sister, M.M., testified that she was sexually abused by defendant on July 31, 1989. She stated that while she and defendant were alone in the family room watching television, she requested that defendant “nice” her. At first, defendant rubbed M.M.’s arm, but he then moved his hand through an armhole and under her shirts and touched her bare breasts. M.M. indicated that she was wearing biking pants, a T shirt, and a loose fitting shirt with “hoops under the armpits.” She testified that she did not say or do anything, but because she felt uncomfortable, she told defendant he could “nice” her on her stomach. M.M. testified that after defendant began to “nice” her on the stomach, he moved his hand onto her “pelvis” as he “pulled [her] pants up *** off [her] stomach.” M.M. stated that her “pelvis” was “right above where I go to the bathroom.” M.M. testified further that defendant placed his hand for 10 or 15 minutes on her right groin area, moving his hand from side to side. M.M. stated that while defendant had his hand on her right groin area she held a pillow over her head and thought to herself “I’ll tell Marmy and Dad when I get home.”

M.M. testified further that defendant quickly pulled his hand out of her pants when Alice Soler and S.M. returned home. M.M. stated that she then ran to her mother but did not tell her what had happened because “[she] was scared she wouldn’t do anything.” M.M. stated that this was the first time that defendant ever touched her in a way that made her feel uncomfortable, and she told her stepmother about the incident the following day. M.M. indicated that she did not see complainant that day but told complainant about the incident the next day.

On cross-examination, M.M. testified that she sometimes pulled her shirt up and requested to be tickled or “niced.” She stated, however, that growing older made her sensitive about her chest. M.M. acknowledged that defendant did not touch her genital area but touched “right above it.” M.M. stated that she became aware of the issue of sexual abuse because sometime in the previous two years her father showed her and her siblings a videotape about “bad touches” and about adults who want to touch young children. M.M. testified that she did not know why she thought her mother would not do anything if she told her about defendant’s conduct, and M.M. stated that her mother did not ignore her most of the time. On redirect examination, M.M. testified that she would not lie about defendant’s conduct in order to live with the complainant.

Alice Soler testified on behalf of defendant. She stated that in 1986, complainant’s father instituted court proceedings over the issues of custody and visitation. The couple participated in court-ordered mediation, and the case was continued over a long period of time. Alice Soler testified that there were at least 10 meetings with the mediator and that the relations between defendant and complainant’s father became strained. Complainant’s father instituted further court proceedings in 1987, and the conflict over custody and visitation remained unresolved. In September of 1988, shortly after Alice Soler and the defendant moved to Hinsdale from Glenview, complainant chose to live with her father. Mrs. Soler testified that when she first married defendant, he got along very well with complainant but later, when defendant took over the role of parent, complainant disputed his authority.

Alice Soler testified that the practice of “nicing” had originated in her family when she and her sister were children and consisted of gentle massage of the children on their arms, legs, backs and stomachs. Mrs. Soler stated that this practice continued into her first marriage and into her marriage with defendant. She stated that it was not unusual to “nice” the children on their bare skin and indicated that M.M. would pull her shirt over her head when she wanted to be “niced” on the back or stomach.

Mrs. Soler testified that sometime in the first seven months of her marriage to defendant, complainant told her that defendant had touched her and made her feel uncomfortable. Mrs. Soler stated that complainant never said that defendant had touched her breasts or genital area or that he had touched her underneath her clothing. Mrs. Soler stated that complainant indicated to her that defendant had “niced” her below the navel. Mrs. Soler acknowledged that it would be inappropriate and not a part of “nicing” for defendant to put his hands down the pants of her daughter or to intentionally touch her in the breast area. Mrs. Soler testified that when complainant told her of defendant’s conduct, Mrs. Soler’s first comment was “[o]h my God, I could not believe it.” According to Mrs. Soler, complainant’s response to that comment was “I knew you wouldn’t believe me.”

Mrs. Soler testified further that after her conversation with complainant, she was concerned that complainant felt something inappropriate had happened. Mrs. Soler later spoke to defendant and told him that complainant said his “nicing” made her feel uncomfortable. She stated that she probably asked defendant whether he had touched complainant in a sexual manner. Defendant responded that he could not believe it; he was just “nicing” complainant like he had always done and that he did not mean to make her feel uncomfortable. Mrs. Soler testified that defendant was “absolutely horrified” when she confronted him with complainant’s allegation. Defendant said that he would not “nice” complainant anymore, and Mrs. Soler then conveyed defendant’s response to complainant. When Mrs. Soler asked complainant whether she was satisfied and felt okay, complainant said “yes.” Mrs. Soler testified that defendant stopped “nicing” complainant for a while, but that several months later complainant again requested that defendant “nice” her.

Mrs. Soler also testified about the events involving M.M. on July 31, 1989. She stated that the family celebrated S.M.’s birthday that evening and that when she and S.M. left the house to buy items for the party, M.M. went outside to play. Mrs. Soler stated further that when she and S.M. returned from the store, there was nothing unusual about M.M.’s behavior and that she ran to the kitchen and wanted to know what kind of cake they had bought for S.M.’s birthday. Mrs. Soler indicated that M.M. then went right back into the family room and showed defendant a book that her mother bought for her while at the store.

Mrs. Soler testified that she loved the defendant and wanted to believe that he had not sexually abused her daughters. She testified that prior to trial, she had only two conversations with M.M. regarding the sexual abuse by defendant and that she discontinued these conversations at the request of a representative from the Department of Children and Family Services. According to Mrs. Soler, when she asked M.M. about defendant’s touching her breasts, M.M. said “[h]e was just tickling me. And I think he accidentally touched me there.” Mrs. Soler explained to M.M. the significance and importance of what she had said about defendant.

Mrs. Soler testified that after August 4, 1989, she never had an opportunity to speak with complainant about her accusations against defendant. Mrs. Soler indicated that the only reference complainant made to her occurred when they were leaving the courtroom during a civil proceeding. At that time, complainant screamed at her, “[h]ow could you believe him; you don’t believe me; I hate you because you never did anything for me.”

Dr. Beth Huebner, a clinical psychiatrist and qualified expert in sexual abuse, testified that she met with M.M. a total of 12 separate times. Huebner prepared a report of her findings on November 30, 1989, and as of that date, she had seen M.M. six times. Huebner met with M.M. six more times after November 30, 1989. Huebner stated, however, that nothing in her diagnosis of M.M. changed after November 30, 1989, and consequently, there was no reason to alter her report to include information obtained during the last six meetings. Huebner indicated that she stopped seeing M.M. after she received letters from complainant’s father which referred to legal consequences if she continued to meet with M.M.

During a meeting with M.M. on October 24, 1989, Huebner questioned M.M. about the incident of abuse that M.M. alleged occurred on July 31, 1989. When Huebner asked M.M. to demonstrate defendant’s conduct using an anatomically correct doll, M.M. indicated that defendant had touched her on her stomach but did not touch her in the genital area. Huebner stated that M.M. said she had never told her stepmother that defendant had touched her between the legs. Huebner testified that M.M. never altered or varied her statement regarding genital touching. Huebner stated further that M.M. indicated that she felt the defendant intended to establish genital contact, but he did not do so “because he knew it was bad.”

Huebner testified that M.M. was unusually physical toward her and “really trespassed beyond appropriate boundaries with a stranger.” Huebner stated M.M. told her that at times she wanted to go and live with her father, and Huebner indicated that M.M. was very cognizant that an allegation of sexual abuse could lead to a change of custody to her father.

Huebner testified that she did not believe M.M. had been sexually abused because she did not have the profile of an abused child; had no regressive behaviors; and no apparent reluctance to be left at home with defendant. Huebner indicated further that M.M. had set up the situation and became upset when her contrived allegations got out of hand. Huebner stated that she believed that M.M. was very manipulative.

On cross-examination, Huebner testified that when using the anatomically correct doll, M.M. indicated that she was touched in the area below the belly button but not at the vaginal opening. Huebner stated that M.M. never drew back from that description of defendant’s conduct.

Huebner testified that she believed that defendant had put his hands down M.M.’s pants, but Huebner believed that did not necessarily mean that M.M. had been molested. Huebner also stated that the mere fact that M.M. did not immediately inform her mother of defendant’s conduct did not mean that the sexual abuse did not occur and that a child’s reaction to sexual abuse will vary according to the child’s personality.

Defendant, testifying on his own behalf, stated that he never touched complainant or M.M. in a sexual manner or with the intent to arouse them sexually or himself sexually. He stated that after complainant spoke to her mother about defendant’s conduct, he stopped “nicing” her for a while, but several months later, complainant again requested that he “nice” her. Defendant testified he felt that if he refused to “nice” complainant when she asked him to, he would be punishing her for what she had said to her mother.

Defendant testified further that on July 31, 1989, M.M. lay beside him on the couch and requested that he “nice” her. Defendant stated that he rubbed M.M.’s arms, legs, shoulders, and stomach, but he never put his hand inside her pants.

The parties stipulated that if called as a witness, Dr. Jeffrey S. Spector, M.D., an expert in the field of child psychiatry, would testify that from October 5, 1989, through January 5, 1990, he conducted a series of interviews with complainant, M.M., S.M., complainant’s mother, her father, and her stepmother. Spector conducted these interviews both individually and in family group sessions. Spector also consulted with Dr. Huebner by telephone, received a letter from Alice Soler’s therapist, and reviewed the materials provided by Dr. Schultz with respect to complainant, M.M., and S.M.

The parties stipulated further that Spector would testify that both complainant’s and M.M.’s forms of disclosure and nondisclosure were consistent with each of their personalities. The terminology used by both girls was age appropriate, and these two girls were not sexually preoccupied. Both girls told a consistent story, and they appeared to be credible. All three children were concerned about the failure of their mother to protect them.

The parties stipulated that Spector concluded that all three children should remain with their father because the importance of safety and stability was paramount. Complainant and M.M. had made a shift to their father’s family as a source of comfort and protection from their anxieties. This was necessary for their emotional well-being and psychological, social, and physical development. Denial of their anxieties would be a disservice to them.

Detective Daniel Callahan testified that he was a criminal investigator for the Du Page County State’s Attorney’s office in the child molestation unit. Callahan stated that on August 3, 1989, he received a telephone call from Detective Joe Gerrick of the Hinsdale police department, who informed him of an allegation of aggravated criminal sexual assault upon M.M. Approximately one-half horn- later, Callahan telephoned complainant’s father and obtained additional information about the incident involving M.M. and defendant.

Callahan testified further that on August 10, 1989, he interviewed defendant and informed him that M.M. asserted that on two separate occasions he had touched her in an inappropriate manner. Callahan placed defendant under arrest and advised him of his Miranda rights. Callahan stated that after defendant waived his Miranda rights, he said, “Why didn’t she say something after the first time?” Callahan testified that defendant also said M.M. “[was] truthful; she [didn’t] lie; she [didn’t] make things up.”

Upon consideration of the evidence presented and the arguments of counsel, the trial judge found defendant guilty of the crimes charged by indictment 89 — CR—19860 and by count II of indictment 89 — CR—19861, both of which alleged that defendant had touched the breasts of the complainant. Although the trial judge found the testimony of the complainant credible, she held that the evidence was insufficient to establish that defendant had touched the vagina of the complainant, and defendant was acquitted of the charge contained in count I of indictment 89 — CR—19861.

In entering her ruling, the trial judge found the testimony of both complainant and M.M. credible. The judge stated further that the testimony of M.M., which described conduct identical to that described by complainant, not only corroborated the testimony of complainant, but showed a common pattern engaged in by defendant.

The trial court sentenced defendant to concurrent terms of four years’ probation. He has appealed both convictions.

Defendant initially contends that the State presented insufficient evidence to prove him guilty beyond a reasonable doubt. In support of this contention, defendant cites several cases which have held that a conviction for sexual assault or abuse, where the defendant denies the charges, will be upheld only where there is either some corroboration of the testimony of the complaining witness or where the testimony of the complaining witness is otherwise clear and convincing. See People v. Kolden (1962), 25 Ill. 2d 327, 185 N.E.2d 170; People v. Seaver (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019.

We note, however, that the Illinois Supreme Court recently rejected this special standard of review that had been employed only in sex-offense cases. In People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690, the supreme court held that the reasonable doubt test, as set forth in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, should govern an appellant’s claim of evidentiary insufficiency in all criminal cases, including those involving sex offenses. (Schott, 145 Ill. 2d at 202-03.) Consequently, the reasonable doubt test articulated in Collins must be applied in reviewing defendant’s claim that the State produced insufficient evidence to support his convictions.

Under the reasonable doubt test, criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (Collins, 106 Ill. 2d at 261.) A court of review must determine “ ‘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, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

In the instant case, the trial court found the evidence established that defendant had on at least two occasions touched the breasts of the complainant, and defendant was convicted of two counts of aggravated criminal sexual abuse. Defendant has asserted that the testimony of the complainant was insufficient to support these convictions.

As noted above, the testimony of the complainant need not be corroborated and need not be clear and convincing. Rather, the complainant’s testimony, when viewed in the light most favorable to the prosecution, must support a finding by a rational trier of fact that the essential elements of the crime were proved beyond a reasonable doubt. Schott, 145 Ill. 2d at 203; Collins, 106 Ill. 2d at 261.

The complainant in the case at bar testified clearly and in great detail as to the specific acts of sexual abuse committed by defendant. She stated that the first incident occurred one evening when she and defendant were alone in the family room of the home on Kirkwood Avenue in Chicago. Complainant testified that defendant told her he intended to “nice” her and, after rubbing her arm and stomach, he moved his hand underneath her pajama top and touched her bare chest and breasts. While defendant was touching complainant in this manner, he asked her whether it felt good and whether she liked it.

Complainant also testified that on other occasions, after defendant had begun to “nice” her, he then touched her bare chest and breasts and the skin beneath her underpants in the area between her legs. These incidents occurred in the home on Tinker Way in Glenview and took place at night when defendant spent as much as one-half hour in the bedroom complainant shared with her siblings.

Complainant stated further that after she told her mother about these incidents, he stopped touching her for approximately one month but then resumed this conduct. Complainant testified that she had attempted to tell a friend about these incidents, but she became embarrassed. Complainant stated further that she did not tell anyone else about the defendant’s conduct because she was frightened. The complainant’s testimony was given without hesitation or equivocation, and the trial judge found it to be credible.

The testimony of Dr. Schultz substantiated that of the complainant in that Schultz diagnosed complainant as having an adjustment disorder with mixed emotional features and post-traumatic stress syndrome. Schultz concluded that the event that triggered the post-traumatic syndrome was the sexual abuse by defendant. Schultz stated that complainant’s symptoms were equivalent to a level six as classified by DSM3, as opposed to the level two symptoms which Schultz had observed in complainant during the divorce of her parents. Complainant explained that she did not tell Schultz of the defendant’s acts of sexual abuse until August 1989, because Schultz had previously indicated that she would be required to report any incidents of abuse. Schultz testified that it was not unusual that complainant did not tell her about the sexual abuse and that complainant “did not feel her mother would be open to any criticism of the defendant.”

Complainant’s testimony was also substantiated by the testimony of M.M., complainant’s eight-year-old sister, who stated that on July 31, 1989, at her request, defendant began to “nice” her arm but then proceeded to put his hand under her shirt and touched her bare breasts. After M.M. told complainant about this incident during a luncheon outing with their stepmother, complainant was prompted to tell her father and her stepmother that defendant had sexually abused her for several years. Complainant explained that she decided to tell others of the abuse she had suffered because “since they knew about [M.M.], [complainant] could tell, whatever was going to happen, could happen.”

Dr. Spector concluded that complainant’s form of disclosure of the abuse was consistent with her personality and that she appeared to be credible.

The trial judge held that the evidence established that defendant touched the breasts of the complainant on at least two occasions. Accordingly, the judge found defendant guilty of two counts of aggravated criminal sexual abuse.

Contrary to defendant’s argument, the complainant’s testimony cannot be rejected merely because she did not tell anyone but her mother about these incidents until August 1989. The complaint by a victim of a sex offense need not be made within a definite time limit (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25), and a delay in reporting incidents of sexual abuse may be reasonable where the victim’s silence can be attributed to fear of the offender or to shame, guilt, and embarrassment felt by the victim (People v. Escobedo (1986), 151 Ill. App. 3d 69, 83, 502 N.E.2d 1263, 1272). Under such circumstances, a delay of several months in reporting incidents of sexual abuse will not detract from the reasonableness of a complainant’s testimony. (Escobedo, 151 Ill. App. 3d at 82-83, 502 N.E.2d at 1272.) When the age of the complainant is considered along with the nature of the crime committed by defendant, it is not unreasonable to infer that the complainant would be hesitant or afraid to reveal the details of the conduct she suffered. People v. Hood (1974), 59 Ill. 2d 315, 319 N.E.2d 802.

Defendant also asserts that complainant was impeached by omission in her letter to her mother dated July 20, 1989, because the letter made no mention of sexual abuse by the defendant. Yet, the record indicates that the letter was written after complainant had moved in with her father and was, presumably, safe from further abuse by defendant. In addition, complainant wrote the letter to her mother well after her mother had already indicated that she did not believe complainant’s statement that defendant had abused her. Moreover, complainant explained that she did not include complaints about defendant’s conduct in the letter because it had occurred four years earlier and because she did not want to write or to think about it.

In a bench trial, it is the province of the trial court to judge the credibility of witnesses, to determine the weight to be accorded their testimony, and to draw inferences from the testimony. (People v. Jarvis (1987), 158 Ill. App. 3d 415, 511 N.E.2d 813; People v. Purnell (1984), 126 Ill. App. 3d 608, 467 N.E.2d 1160.) In the case at bar, the trial judge found the testimony of complainant credible and specifically stated that the evidence against defendant was unrefuted and unrebutted. The court also took particular note of the complainant’s testimony that she told no one other than her mother about the defendant’s conduct because she was afraid.

Even before the supreme court issued its decision in Schott, Illinois courts consistently held that a complainant’s testimony need not be unimpeached, uncontradicted, crystal clear, or perfect in order to sustain a conviction for sexual abuse. (See People v. Douglas (1989), 183 Ill. App. 3d 241, 251, 538 N.E.2d 1335, 1341; People v. Findlay (1988), 177 Ill. App. 3d 903, 911, 532 N.E.2d 1035, 1041; People v. Henne (1988), 165 Ill. App. 3d 315, 323, 518 N.E.2d 1276, 1281.) Where minor inconsistencies or discrepancies exist in a complainant’s testimony but do not detract from the reasonableness of her story as a whole, the complainant’s testimony may be found to be adequate to support a conviction for sexual abuse. Douglas, 183 Ill. App. 3d at 252, 538 N.E.2d at 1341; Findlay, 177 Ill. App. 3d at 911, 532 N.E.2d at 1041.

We hold that the evidence in the record supports the trial court’s finding that defendant was guilty beyond a reasonable doubt of two counts of aggravated criminal sexual abuse.

We next address defendant’s assertion that the trial court erred in refusing to consider certain evidence presented by him. Specifically, defendant argues that the court erred in refusing to consider certain portions of the testimony of Dr. Schultz which defendant believed supported his claim that the complainant had lied about the nature of his conduct.

The record reveals that complainant testified that after she told her stepmother on August 3, 1989, that defendant had sexually abused her, her stepmother telephoned complainant’s father at work and informed him of what complainant had said. According to complainant, her father then called “some people.” Complainant stated further that when her father returned home from work that day, she repeated to him what she had earlier told her stepmother about the incidents of sexual abuse by defendant. Complainant subsequently testified that she was present when her father telephoned Dr. Schultz and made an appointment for complainant to speak with Schultz the following day. Complainant indicated that this call was made after she had told her father “the stuff.”

Dr. Schultz testified on cross-examination that she received a telephone call from complainant’s father during the evening of August 3, 1989, and that he said he was concerned about the possibility that M.M. might have been sexually abused. Schultz stated further that complainant’s father also said that he had a suspicion that complainant might have been abused and said “[w]e don’t know about [complainant].”

In his motion for a judgment of acquittal at the close of the State’s case, defense counsel argued that if complainant had testified truthfully, her father would have known that she had been abused and would not have said to Schultz that he had a suspicion that complainant might have been abused or “[w]e don’t know about [complainant].” Defense counsel urged that this testimony by Schultz contradicted and impeached the testimony of complainant.

The trial judge held that although the prosecutor failed to object to this testimony, it was hearsay and, accordingly, was inadmissible. The trial judge held further that even if she were to consider this testimony by Schultz, she would find that it had not sufficiently repudiated the evidence presented by the State to warrant a directed finding in favor of the defendant.

On appeal, defendant contends that the court erred in holding that this testimony by Schultz was inadmissible hearsay. In support of this contention, defendant initially asserts that Schultz’ testimony was admissible because no objection was raised by the prosecutor at the time the testimony was elicited. This argument is without merit.

In a bench trial, the court is presumed to have considered only competent evidence. (People v. Reed (1991), 209 Ill. App. 3d 575, 568 N.E.2d 334.) The trial judge has wide discretion in controlling the proceedings and may, on her own motion, exclude irrelevant matter and confine the trial to the issues. (People v. Martin (1974), 24 Ill. App. 3d 710, 321 N.E.2d 368.) A trial court, sitting without a jury, is not required to consider incompetent and immaterial evidence, despite the fact that it was admitted into the case. (In re Petition of Radtke (1912), 171 Ill. App. 462.) Consequently, the trial judge in the instant case acted within her authority and discretion by ruling that Schultz’ testimony was hearsay and inadmissible, and the trial court was not required to consider it merely because the prosecutor failed to raise an objection when the testimony was elicited.

We also reject defendant’s argument that Schultz’ testimony was admissible because it was not offered to prove the truth of the statement made by complainant’s father, and consequently, it could not be characterized as hearsay evidence.

Hearsay evidence consists of testimony or written evidence presented in court of a statement made out of court which is offered to prove the truth of the matters contained in the out-of-court statement. People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738; Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 469 N.E.2d 708.

In the instant case, Schultz testified that when complainant’s father telephoned her in the evening of August 3, 1989, he said that he suspected that complainant might have been abused and said “[w]e don’t know about [complainant].”

On appeal, defendant asserts that Schultz’ testimony was offered to establish the state of mind of the complainant’s father at the time he telephoned Dr. Schultz. The evidence was, therefore, offered to prove that on the evening of August 3, 1989, complainant’s father did not know whether complainant had been sexually abused. Consequently, we find this testimony was presented as an assertion of the truth of the matter contained in the out-of-court statement by complainant’s father and was inadmissible hearsay. Accordingly, the trial court properly ruled that this testimony was to be excluded.

Finally, we consider defendant’s claim that the trial court erred in denying defendant’s motion in limine to exclude the testimony of the complainant’s sister. Defendant contends that the trial court improperly admitted the testimony of M.M. to show a common scheme or design. We find this argument unpersuasive.

The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that determination may not be overturned on appeal absent a clear abuse of discretion. (People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515; People v. Franklin (1990), 135 Ill. 2d 78, 96, 552 N.E.2d 743.) A clear abuse of discretion exists only where the trial court’s decision is unreasonable or arbitrary. Illgen, 145 Ill. 2d at 364; People v. M.D. (1984), 101 Ill. 2d 73, 90, 461 N.E.2d 367.

Evidence of other offenses is not admissible for the purpose of showing the defendant’s disposition or propensity to commit crime. (Illgen, 145 Ill. 2d at 364; People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821.) Yet, evidence of other crimes is admissible when it is relevant to prove a fact in issue, defendant’s motive, intent, identity, absence of mistake, or modus operandi. (Illgen, 145 Ill. 2d at 364-65; McKibbins, 96 Ill. 2d at 182.) Indeed, evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. (Illgen, 145 Ill. 2d at 365; McKibbins, 96 Ill. 2d at 182; People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.) When evidence of other crimes is offered, the trial judge must weigh its probative value against its prejudicial effect and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. (Illgen, 145 Ill. 2d at 365; People v. Stewart (1984), 105 Ill. 2d 22, 62, 473 N.E.2d 840.) Evidence is considered “relevant” if it has any tendency to make the existence of any fact that is material to the determination of the case more or less probable than it would be without the evidence. Illgen, 145 Ill. 2d at 365-66; Stewart, 105 Ill. 2d at 54.

Common design or scheme refers to a larger criminal scheme of which the crime charged is only a portion. (People v. Tipton (1990), 207 Ill. App. 3d 688, 566 N.E.2d 352; People v. Partin (1987), 156 Ill. App. 3d 365, 509 N.E.2d 662.) It has been held that the testimony of other victims of sexual abuse may properly be admitted where that evidence of other crimes establishes a common design or scheme by the defendant. See People v. Moffat (1990), 202 Ill. App. 3d 43, 57, 560 N.E.2d 352; Partin, 156 Ill. App. 3d at 371, 509 N.E.2d at 665.

Evidence of another offense may be used only when the other offense has some threshold similarity to the crime charged, and it is this similarity which increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s criminal propensities. (Illgen, 145 Ill. 2d at 372; People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59.) Where evidence of prior bad acts is offered to prove modus operandi or that the crime charged was part of a common design or plan, there must be a high degree of similarity between the facts of the crime charged and the other offense in which the defendant was involved, and the two offenses must share such distinctive common features as to earmark both acts as the conduct of the same person. Illgen, 145 Ill. 2d at 372-73; McKibbins, 96 Ill. 2d at 185-86.

In the instant case, M.M. described conduct by defendant which was virtually identical to the incidents of abuse described by complainant. This testimony established that defendant had a common scheme or design to use “nicing” as a pretext to sexually abuse his stepdaughters. The testimony of M.M. was relevant and probative of the issue of defendant’s guilt, and its probative value outweighed its prejudicial effect. Consequently, the trial court properly admitted the testimony of M.M., and defendant is not entitled to receive a new trial on this basis.

For the foregoing reasons, the judgments of the trial court are affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CYNTHIA HARRIS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1068
    Opinion filed April 6, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Jillian Cerone-Marisie, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

A jury convicted defendant Cynthia Harris of murdering Leroy Williams. The court sentenced defendant to 20 years’ imprisonment. Defendant filed this appeal, contending that the State’s comments during closing argument were prejudicial, not harmless, and that the trial court erred in denying defendant’s motion for a mistrial. Defendant also contends that she was not proved guilty of murder beyond a reasonable doubt because the State did not disprove her theory of self-defense, and therefore, her conviction must be reversed.

On July 12, 1987, at approximately 8 p.m., Williams and his friend Tyrone Franklin began drinking beer. At about 9:30 p.m. that evening, Williams, Franklin and a man called “Ed” went to defendant’s address. Franklin and defendant were lovers. Franklin testified that defendant was sitting on the front steps of the home. Franklin asked defendant whether she had ever touched Williams’ penis. Defendant responded that it was none of his business. Franklin struck defendant in the face. Dionne Beathea witnessed this and approached Franklin. Beathea told Franklin that he should not do that and pushed him. Franklin then struck Beathea. After seeing these confrontations, Williams ran over to Franklin, restrained him and put Franklin into his van. Franklin testified that he heard defendant tell her daughter, Elverine Jenkins, to “get her my shit.”

Elverine testified that she knew what her mother meant by the phrase “my shit” because of past references. Elverine went into the home, returned with a 12-inch knife and handed it to her mother. Beathea had also retreated to her home and returned with a seven-inch knife. Ed, who was sitting in the van, yelled out “[t]hem bitches are coming out with knives.” At this point Ed and Franklin were in the van with the windows rolled up.

Beathea testified that Williams was standing by the van on the driver’s side and yelled, “Get away from my van.” Beathea responded, “Okay, I’m going to get away from you’re [sic] van.”

What transpired at this point is in dispute. Witnesses for the State testified that defendant ran around the back of the van and up behind Williams. Williams had grabbed what the State’s witnesses described as a leg off of a child’s chair or play table. Williams was getting into the van, when defendant stabbed him in the back of his left shoulder. Then, Williams swung his rod at defendant, missed her but struck Beathea in the back left side of her head. Beathea fell to the ground, holding her head. Defendant dropped her knife and knelt down beside her. Franklin and Ed pulled Williams into the van and drove him to the hospital. Beathea was taken to the same hospital, but received no treatment for her head injury. While at the hospital, Beathea heard that Williams was dead and that the rumor was that she had killed him. Beathea testified that she called defendant and told her what she had heard at the hospital. Beathea testified that defendant responded, “I only stabbed him once.”

Elverine testified on behalf of her mother. Elverine stated that first Williams hit Beathea in the head with what she described as a pipe, and then swung at defendant but missed her. According to Elverine, defendant then stabbed Williams. Assistant State’s Attorney Elizabeth Rivera testified, however, that the morning after the stabbing, Elverine told her that when she saw the people arguing by the van, she got scared and went inside the home. When she came back outside, Elverine claimed to have seen defendant holding Beathea, who had a knife dangling from her hand, and another knife with blood on it was lying by defendant on the ground. Rivera testified that she wrote a summary of what Elverine had told her. After reading the summary, Elverine made changes, initialed the changes and signed the completed three-page report. Rivera testified that Elverine stated that she had told her everything she saw and knew. Elverine testified at trial that she could not remember at trial if she told Rivera that she saw Williams hit Beathea and that she saw Williams swing at defendant.

Next, Detective Dennis Dwyer testified that after talking to a man named Michael Wright at the hospital, he went to 4129 South Ellis to defendant’s second-floor apartment at approximately 1:30 a.m. Kevin Eskridge answered the door. Dwyer identified himself and stated that he was looking for defendant. Dwyer was led into the living room, where three other people identified themselves as James Bailey, Tondy Kelly and Tracy Kelly. Eskridge told Dwyer that defendant had gone to visit an aunt. Dwyer went to the address Eskridge had given him, but defendant was not there. At about 7 a.m., Dwyer returned to 4129 South Ellis. Defendant’s uncle answered the door and took Dwyer into a bedroom where defendant was asleep on the floor. Dwyer recognized her as being the woman that had earlier identified herself as Tracy Kelly.

Police officer David Hill spoke with Franklin at the hospital. Franklin informed Hill that defendant witnessed and possibly was responsible for the stabbing. Hill drove to defendant’s home, but did not find her there. At approximately 7 a.m. on July 13, Hill picked up Franklin, and they went to defendant’s home. As defendant was coming out of her home with Dwyer, Franklin identified her as the person who had stabbed Williams.

Dr. Shaku Teas, an assistant medical examiner, performed an autopsy on Williams. Teas testified that a stab wound to the back caused Williams’ death. The toxicology report indicated that alcohol was found in the victim’s blood.

After hearing the evidence and receiving instructions, the jury retired to deliberate. The jury returned a verdict of guilty of murder. The court sentenced defendant to 20 years’ imprisonment.

Defendant contends that the trial court erred in denying her motion for a mistrial based on the State’s comment made during rebuttal closing argument that defendant had asked her daughter “to perjure herself.” During closing argument, the State pointed out how Elverine’s testimony was impeached. The State argued that Elverine “had two years to think about what she has said and what that could cost her mom.” In response, defense counsel argued, “What the State is attempting to do is impeach Elverine Jenkins by omission, not by what she did say but what she didn’t say.” The State rebutted:

“[Y]ou heard from Elverine Jenkins, the defendant’s daughter from this witness stand here and you heard how Elverine was dragged into this case. She was dragged into the case by one and only one person and that is the defendant over here. She was dragged into this case back in June of ’87 when she called to her and asked her to get her knife ***.
* * *
If you are going to blame anyone, do not blame the child. Blame Cynthia Harris for bringing her in like that. Blame the defendant for dragging her in here, putting her on that witness stand and asking her to perjure herself. Do not blame the child.” (Emphasis added.)

Immediately thereafter, defense counsel objected. The trial court sustained the objection and instructed the jury to disregard the statement.

Although the trial court sustained the objection and the jury was instructed to disregard the accusation, these attempts to cure the prejudice of this statement were insufficient to remove the taint of this allegation. It is necessary to note that the accusation of suborning perjury was made during rebuttal closing argument; thus, defendant had no opportunity to respond to that charge. The statement also implicitly charged defendant of corrupting her child. During rebuttal closing argument, the State actually requested that the jury “[b]lame Cynthia Harris for bringing [Elverine] in [to court].” This argument and the context in which it was made was inflammatory because it implies that defendant forced her daughter not only to testify, but to testify in a certain manner. We cannot agree with the State that the remark that defendant suborned penury, a crime separate from that which the State had already charged defendant, was invited by defense counsel’s argument that the State was attempting to impeach Elverine not by what she said, but by what she did not say. The “perjury” argument, clearly, was made in order to inflame the jury and prejudice it against defendant. People v. Estes (1984), 127 Ill. App. 3d 642, 649, 469 N.E.2d 275, 282.

Defendant also contends that the State’s comments that defendant “admits to that murder,” that “murder means nothing to someone in this courtroom,” and appealed to “[t]hose of you who still have decency murder means something” were prejudicial, thus denying her right to a fair trial. Generally, in order to preserve an issue for appellate review, a defendant must make a contemporaneous objection at trial and include the objection in written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1130.) Here, defendant failed to object to the remarks during trial and also failed to include the objections in her post-trial motion. The plain error rule, however, may be invoked when the evidence at trial is closely balanced or where the error adversely affected the defendant’s right to a fair trial. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233, 238.) We find that both prongs of the plain error doctrine are present in the case at bar — the evidence is closely balanced and the State’s comments adversely affected defendant’s right to a fair trial. It, therefore, is proper to review the above complained-of comments.

The complained-of comments occurred in the State’s rebuttal argument as follows:

“[Y]ou are shown this file here and told murder means nothing to someone in this courtroom here. Those of you who still have decency murder means something and the defendant is charged with murder here. She admits to that murder. However, she is asserting she was justified and it will be up to you members of the jury to decide exactly if she was justified or not because that is what your duty is ***.”

According to the State’s argument, guilt of murder is confessed by asserting the affirmative defense of self-defense. This argument is clearly a misstatement of the law. In order to sustain the charge of murder, the State must prove that defendant was not justified in using the force which she used. (Illinois Pattern Jury Instructions, Criminal, No. 7.02 (2d ed. 1981).) Thus, if defendant had actually admitted to “murder,” she would have admitted she was not justified in using the force which she did use, thereby precluding her from asserting self-defense. Although this distinction between the legal definition of “murder” and the colloquial use of the word “murder” may seem inconsequential to those trained in the legal profession, members of the jury may not be sophisticated enough to separate the legal meaning from the colloquial meaning. A clear misstatement of the law during the State’s closing argument can substantially influence the jury’s determination. (Estes, 127 Ill. App. 3d at 649, 469 N.E.2d at 282.) Moreover, it is improper for the State to say anything during closing argument, the only effect of which is to arouse the prejudice and passion of the jury against the defendant without shedding any light on the paramount question presented to the jury. (Estes, 127 Ill. App. 3d at 650, 469 N.E.2d at 282, citing People v. Crossno (1981), 93 Ill. App. 3d 808, 821, 417 N.E.2d 827, 838; People v. Lurry (1979), 77 Ill. App. 3d 108, 114, 395 N.E.2d 1234, 1238.) The complained-of argument both misstates the law, thereby influencing the jury’s determination, and was made to arouse the passion of the jury and prejudice it against the defendant.

The standard for determining whether the remarks of a prosecutor during closing argument constitute reversible error is whether those comments were such that, without their having been made, the jury might have reached a different result. (People v. Barnes (1983), 117 Ill. App. 3d 965, 978, 453 N.E.2d 1371, 1382.) During closing argument, the State is afforded wide latitude to comment on evidence and draw reasonable inferences therefrom. (People v. Linscott (1991), 142 Ill. 2d 22, 38, 566 N.E.2d 1355, 1362; People v. Harris (1990), 196 Ill. App. 3d 663, 675, 554 N.E.2d 367, 375.) The Illinois Supreme Court has held that when the State exceeds the bounds of that latitude, generally, the trial court’s action in sustaining objections and instructing the jury to disregard improper statements is sufficient to cure any prejudice which may have been caused by the remarks. (People v. Campbell (1990), 199 Ill. App. 3d 775, 783, 557 N.E.2d 556, 561-62, citing People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200, 1206.) The trial court’s determination of the propriety of closing argument should not be disturbed on review, unless there is a clear abuse of discretion on the part of the trial court. People v. Smothers (1973) , 55 Ill. 2d 172, 176, 302 N.E.2d 324, 326-27; Harris, 196 Ill. App. 3d at 675, 554 N.E.2d at 375.

After reviewing the record, we find that the cumulative impact of the above improper comments may well have prejudiced the jury and constituted a material factor leading to defendant’s conviction. (People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629, 638; People v. Ray (1984), 126 Ill. App. 3d 656, 663, 467 N.E.2d 1078, 1084.) Defendant, therefore, was deprived of a fair trial and is entitled to a new trial. See Whitlow, 89 Ill. 2d at 341, 433 N.E.2d at 638.

A criminal conviction should not be reversed on the sufficiency of the evidence unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) When a defendant challenges his conviction on the grounds that the evidence against him was insufficient, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the State, 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, citing Jackson v. Virginia (1978), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) The trier of fact determines whether the State has met the burden of proving defendant’s guilt beyond a reasonable doubt. (People v. McDonald (1975), 62 Ill. 2d 448, 456, 343 N.E.2d 489, 493.) Further, a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

When a defendant raises the affirmative defense of self-defense, the trier of fact must consider whether a reasonable mind could fairly conclude that the State proved beyond a reasonable doubt that defendant did not act in self-defense. (People v. Riggins (1990), 205 Ill. App. 3d 904, 910, 564 N.E.2d 122, 125, citing People v. Williams (1974) , 57 Ill. 2d 239, 311 N.E.2d 681.) In order for defendant to successfully utilize the affirmative defense of self-defense, she must present some evidence that (1) force had been threatened against her, (2) she was not the aggressor, (3) the danger was imminent, (4) the force threatened was unlawful, (5) she actually believed a danger existed, (6) the use of force was necessary to avert the danger, (7) the kind and amount of force she used were necessary, and (8) the above beliefs were reasonable. (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 2, 7 — 1.) After the defendant has presented some evidence of the above, the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to the issue of self-defense, along with proving the elements of the crime charged. Ill. Rev. Stat. 1987, ch. 38, par. 3-2.

There was evidence at trial that the decedent was asking defendant and Beathea to move away from the van, that he went to get Franklin away from the women after he witnessed Franklin hit them and that defendant requested and later brandished a large knife. The jury could have believed the State’s witnesses’ accounts of what transpired and found that there was no danger or force threatening defendant after Franklin was in the van with the windows rolled up. The jury could have reasonably found from the evidence that defendant was the aggressor against decedent. The jury was not required to accept the defendant’s witness’ version of what transpired. (People v. Perry (1980), 91 Ill. App. 3d 988, 415 N.E.2d 523.) After viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt, even considering the affirmative defense of self-defense. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277, citing Jackson v. Virginia (1978), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) Since the evidence is only conflicting, we refuse to substitute our judgment for that of the jury and reverse defendant’s conviction on the basis of insufficiency of the evidence. People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.

For the foregoing reasons, the conviction of the circuit court of Cook County is reversed and this cause remanded for a new trial.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.