text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD KARGOL, Defendant-Appellant.
    Fourth District
    No. 4—90—0783
    Opinion filed September 12, 1991.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On June 19, 1990, defendant Richard Kargol was found guilty by a jury sitting in the circuit court of Vermilion County of six counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14.) Ultimately, the court found some charges merged and sentenced defendant on three convictions. On these counts it was alleged that defendant placed his penis, finger, and thumb in the anus of M.H.; defendant was a family member and the grandfather of M.H.; and this conduct caused bodily harm to M.H. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(2).) The court imposed three concurrent 10-year prison sentences. Defendant now appeals.

The State’s first witness was Lori Hyde, the mother of M.H. She stated that M.H.’s father was Larry Kargol, and that defendant was M.H.’s grandfather. At the time of trial M.H. was three years old. Before the incident in this case, M.H. enjoyed visiting with defendant and did so on a regular basis. On March 2, 1990, M.H. went to stay with defendant. That evening, M.H. wanted to go home, so defendant brought him back. However, when defendant started to leave again, M.H. wanted to go with him, so he was permitted to do so.

Defendant brought M.H. back on March 5, 1990. When M.H. arrived, Hyde observed he was acting strangely and had an expression on his face as if he had done something wrong. When asked what was wrong, he stated his “butt” hurt. He told her he fell on a jukebox and she laughed it off. However, he returned to her shortly, stating his butt hurt. Initially he said he did not wish to tell her what happened.

Hyde took M.H. into the bathroom for privacy and asked him again what happened. He then told her that defendant and Larry put medicine on his butt and put their fingers in his butt. He also stated defendant put his “pecker” in his butt. She explained this is how M.H. referred to a penis. He told her he cried and that they told him to shut up. She then took him to the hospital. Since that time, M.H. wakes up in the middle of the night crying and yelling “stop” or “don’t.” He is also frightened around men and does not want to see his grandfather again. At this point M.H. was called to testify but he was unable or unwilling to do so.

Gene Woodard, the juvenile investigator for the Danville police department, stated he spoke with M.H. on March 6, 1990, at the Dan-ville Young Women’s Christian Association (YWCA). Woodard was already familiar with the allegations by M.H. and the terminology M.H. used. M.H. told him defendant and Larry hurt him over the weekend. M.H. explained they had put medicine on his butt and then put their fingers and thumbs in there. He then whispered that defendant also put his pecker in there. M.H. looked around and seemed ashamed before stating this. M.H. also stated he did not want to see defendant again or go back to his house.

Later that day, Woodard interviewed defendant. Woodard showed defendant pictures of M.H.’s anus taken at the hospital. Defendant started crying and stated he knew nothing of the injuries. He then stated he believed Larry caused these injuries to M.H., because he believed Larry was homosexual and had a lot of problems.

Jeanne Burke is an investigator of the Department of Children and Family Services (DCFS). She testified that on March 5, 1990, she was called to the hospital concerning a possible sexual abuse case.

M. H. told her that defendant hurt him. He stated that defendant put medicine on his fingers and put his fingers and thumbs in M.H.’s butt. Robert Huff of the Danville police department was also at the hospital, and M.H. told him the same thing.

Peggy Johnson, crisis services coordinator for the YWCA, testified that she was present when Woodard interviewed M.H. on March 6, 1990. M.H. told them that defendant put medicine on his butt and also inserted his finger and thumb. At that point, M.H. appeared to become very embarrassed. Johnson asked if he would like her to cover her ears. In response to his affirmative reply, she acted as though she was covering them. M.H. looked around the room and then whispered that defendant put his pecker in M.H.’s butt. M.H. then pointed to his own penis to show what pecker meant.

The State’s final witness was Dr. Melvin Earhardt, the emergency room physician on duty when M.H. arrived. He examined M.H.’s anus. There was a large, red irritated area of the sphincter. He identified pictures of this area. He questioned Hyde about the possible use of rectal suppositories or creams. He explained this is the only diagnosis, other than trauma by introduction of a foreign object, which could explain the injury. When Hyde replied that none were used, Earhardt made a medical diagnosis of suspected child abuse.

Defendant testified that his two sons, Ricky and Larry, lived with him. On the weekend in question, he brought M.H. to his home. He worked part of that weekend cleaning local businesses and, when he went to work, M.H. was either with Ricky or Larry. He stated M.H. never complained about his anus hurting him, and defendant denied performing any alleged acts. The jury found defendant guilty.

On appeal, defendant contends the court improperly allowed witnesses to testify to the statements of M.H.; that, even with this evidence, he was not proved guilty beyond a reasonable doubt; and that the imposed 10-year prison sentences were excessive.

We turn first to the sufficiency of the evidence since, if the State has not met the required burden, the other questions are immaterial.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, if after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

In the present case, the victim was unable to testify despite everyone’s efforts, which is entirely understandable due to his tender age. Accordingly, the State’s case was made almost entirely by hearsay testimony in which various people recounted what the victim had told them. This is permissible pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115-10).

The victim’s mother testified to M.H.’s initial report of the violation, relating the details and the assailants. Also testifying to M.H.’s reports to them were Woodard, Burke, and Johnson. Dr. Earhardt’s testimony, considered in the light most favorable to the State, establishes that M.H. suffered some sort of trauma to his anus, which buttresses M.H.’s statements to the others. We find this evidence sufficient.

Defendant points out that the jury was instructed, pursuant to section 115 — 10(c) of the Code, that in determining what weight to give to these statements the jury should consider the age and maturity of M.H., the nature of the statements, and the circumstances under which they were made. (Ill. Rev. Stat. 1989, ch. 38, par. 115— 10(c).) He maintains that considering these factors, especially in view of the fact that M.H. was unable to testify coherently, the jury should have disregarded these statements. However, the questions of the credibility of the witnesses and the resolution of evidentiary conflicts are for the trier of fact. (Collins, 106 Ill. 2d at 261-62, 478 N.E.2d at 277.) Here, it determined the statements were credible and believed them. We note this conclusion is supported by the physical evidence showing the trauma to M.H.’s anus and by the testimony showing that M.H. became very embarrassed when speaking of the incident involving defendant’s penis. We conclude that the evidence, considered in the proper light, is sufficient.

Defendant next contends the court erred in admitting the hearsay testimony pursuant to section 115 — 10 of the Code. Sections 115 — 10(a) and (b) provide that in a prosecution such as the present one:

“(a) *** [T]he following evidence shall be admitted as an exception to the hearsay rule:
* * *
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1989, ch. 38, pars. 115 — 10(a), (b).)

Defendant’s main objection is that the court failed to hold the required pretrial hearing and make the required finding concerning the reliability of the statement.

We recently had the opportunity in People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010, to review section 115 — 10 in light of the recent United States Supreme Court opinion in Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, and assertions that this section violated the confrontation clause. There, we observed that historically to determine when the admission of hearsay evidence did not violate the confrontation clause, it was necessary for the State to show (1) the witness was unavailable, and (2) the witness’ statement bears an adequate “indicia of reliability.” (Coleman, 205 Ill. App. 3d at 581, 563 N.E.2d at 1018-19.) While there is some question as to the continued vitality of the first requirement (see Coleman, 205 Ill. App. 3d at 582, 563 N.E.2d at 1019), that question is not now before us.

It is the second aspect of the analysis which is germane to the present controversy. This is the requirement that the hearsay testimony in question contain a sufficient “indicia of reliability.” In Coleman, we observed that since the section 115 — 10 hearsay exception is not a firmly rooted hearsay exception, “the statement must show a particular guarantee of trustworthiness to be admissible.” (Coleman, 205 Ill. App. 3d at 583, 563 N.E.2d at 1020.) We explained:

“Section 115 — 10(b)(1) provides that, prior to the evidence being found admissible, a hearing should be conducted, and the court must find that ‘the time, content, and circumstances of the statement provide sufficient safeguards of reliability.’ (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)(1).) By providing for such a hearing, our statute has been held to comply with the confrontation clause’s required showing of particular guarantees of trustworthiness. (Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1342.) However, as noted, Wright has more particularly indicated what is needed to meet this requirement. Accordingly, it is necessary to construe the general language of section 115 — 10(b)(1) to be in line with the more particular language of Wright. Thus, the required finding that the statement provides ‘sufficient safeguards of reliability’ must be understood to be of a comparable nature with a finding that the circumstances of the statement render the declarant ‘particularly worthy of belief’ and, in reaching this decision, the court must consider only those circumstances which surround the making of the statement.” (Emphasis added.) Coleman, 205 Ill. App. 3d at 583-84, 563 N.E.2d at 1020-21.

In the case at bar no such pretrial hearing was held, and neither was such a determination by the trial court made. This is error. Accordingly, it is necessary for us to remand this matter so that the hearing can be held. If the court finds the statements involved meet the required standard, then the conviction shall be affirmed and defendant can seek review on that limited determination. Conversely, if the court finds the statements do not meet this standard, then the case shall be reversed and remanded since the admission of the evidence clearly prejudices defendant.

The State argues defendant has waived this issue by failing to request a hearing and by failing to object to the absence of the hearing and required determination. We observe sections 115 — 10(b)(1) and (d) indicate that a hearing must be held and the proponent of a statement must give the adverse party notice of the intent to use the statement. (Ill. Rev. Stat. 1989, ch. 38, pars. 115 — 10(b)(1), (d).) We believe this reasonably places responsibility to request a hearing upon the party advocating use of the statement. In this case, that was the State. Accordingly, the fact that defendant did not request such a hearing does not waive the necessity of it being held. In regard to the second assertion, it is possible for a party to waive this error, as most others, by failing to object. However, in the present case, while not making this specific objection, defendant did raise a confrontation clause objection. We also conclude that since Wright and Coleman were not decided at the time of trial, it would be inappropriate to hold that defendant has waived any issue predicated on these cases. Accordingly, we find that the ends of justice would not be served, in this case, by application of the waiver doctrine.

Defendant next contends the sentence imposed was excessive. Defendant was convicted of three Class X felonies which call for a mandatory prison sentence of 6 to 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) The sentencing hearing establishes that defendant has no prior felony or misdemeanor convictions. At the hearing, various people testified to defendant’s good character. A daughter and son-in-law testified to defendant’s parenting skills, his relation to their daughters, and their faith in his ability to care for the girls. The court reviewed the statutory mitigating and aggravating factors. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005-5-3.1, 1005-5-3.2.) In imposing a sentence above the minimum, the court relied on the facts that this involved a very small child, a matter of trust, and the violence of the crime.

Sentencing decisions are left to the discretion of the trial court and will not be disturbed absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) A court’s sentencing decision is to be given great deference and weight. (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Accordingly, it will not be disturbed by a reviewing court simply because it might balance the factors differently. People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547.

It is defendant’s position that the three aggravating factors relied upon by the court are improper factors to be considered because they are implicit to the offenses for which he was convicted. (See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Therefore, he believes the 10-year sentences should be vacated and the minimum six-year sentence imposed.

It is clear that generally it is improper to consider factors implicit to the offense as aggravating factors. However, the supreme court in People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, clarified what is and is not proper to consider. There, in a voluntary manslaughter case, the court observed it is proper to consider the degree of harm involved, even though harm is implicit in the offense. (Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) This is simply an acknowledgement that in cases where the conduct is more egregious than the normal violation, it is appropriate for the court to consider this conduct in imposing sentence, even if it is implicit in the offense.

In the case at bar, the court first found that the crime involved a small child. To complete the offense of aggravated criminal sexual assault as charged, the victim must be under 18 years of age. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(a)(2) (bodily harm element), 12— 13(a)(3) (under 18 element).) The fact that the victim was only three years of age makes the conduct sufficiently out of line with that envisioned by the statute to be properly considered as aggravating. Similarly, another element of the offense is that defendant is a family member of the victim, and the court considered the matter of trust between defendant and M.H. as an aggravating factor. However, as the court noted, this case involves a high degree of love and affection on M.H.’s part, which again separates it from other cases involving family members.

The third factor mentioned was the violence of the violation. The offense charged required a finding of bodily harm to the victim. While we do not wish to underestimate the trauma involved, we do not believe the evidence establishes that the violence involved in the present case is out of the ordinary for similar offenses. Accordingly, this factor is improper. However, it is settled that no remandment is necessary when the weight placed upon an aggravating factor is so insignificant that it did not lead to a greater sentence. (See People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340.) This is the situation here.

We note that the trial court “merged” the guilty verdicts in counts I, III, and V into the guilty verdicts in counts II, IV, and VI, respectively. The significance of that action lies in the fact that aggravated criminal sexual assault can be charged in substantially different ways. Counts I, III, and V alleged that defendant committed the offense of aggravated criminal sexual assault in violation of section 12— 14(b)(1) of the Code because, being a person over 17 years of age, he committed an act of sexual penetration upon M.H., a person under 13 years of age. The difference between counts I, III, and V is the alleged means of penetration: (I) penis, (III) thumb, and (V) finger.

On the other hand, in counts II, IV, and VI, defendant was charged with aggravated criminal sexual assault in violation of section 12 — 14(a)(2) of the Code, based upon his committing an act of sexual penetration upon the victim by the use of force or threat of force and his causing bodily harm to M.H. Again, the difference between counts II, IV, and VI is the means by which the penetration is alleged to have occurred.

Thus, it is clear that “bodily harm” was not an element of counts I, III, and V, even though it was an element of counts II, IV, and VI; accordingly, had the trial court “merged” defendant’s convictions of aggravated criminal sexual assault on counts II, IV, and VI into his convictions for aggravated criminal sexual assault under counts I, III, and V — instead of doing it the other way around — there would have been no impropriety in the trial court’s considering as an aggravating factor that defendant’s conduct caused bodily harm to the victim. We provide this explanation because when trial courts are of a mind to “merge” convictions — that is, to vacate some convictions of a particular offense based upon the same physical act as other convictions of that same offense — they might wish to consider the elements underlying the different ways in which that offense can be committed so as to avoid the argument made in the case before us, which is that the trial court, at sentencing, improperly considered as a factor in aggravation conduct — bodily harm — which is inherent as an element of the offense of which defendant was convicted.

Defendant was convicted of three Class X felonies. Thus, he could have received a sentence of up to 30 years’ imprisonment. Further, defendant could have been sentenced to an extended-term sentence of 30 to 60 years because he committed an aggravated criminal sexual assault upon a victim under 18 years of age (Ill. Rev. Stat. 1989, eh. 38, par. 1005 — 5—3.2(c); Coleman, 205 Ill. App. 3d at 585-86, 563 N.E.2d at 1022), and he could have (and since it is mandatory should have) received consecutive sentences. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a); People v. Lafferty (1990), 207 Ill. App. 3d 136, 138, 565 N.E.2d 279; People v. Lipscomb (1991), 215 Ill. App. 3d 413.) Considering the possible penalties and the conduct involved in the instant offenses, we find no abuse of discretion with the imposition of sentence above the minimum.

For the above-mentioned reason, defendant’s conviction and sentences are affirmed subject to the hearing on the admissibility of the statement. This matter is remanded solely for a hearing in compliance with section 115 — 10 of the Code and the provisions of this opinion.

Affirmed in part; remanded in part.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON MASON, Defendant-Appellant.
    Fourth District
    No. 4—90—0311
    Opinion filed September 12, 1991.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Alan D. Tucker, State’s Attorney, of Havana (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of Mason County, defendant Jason Mason was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(bXl)) and sentenced to a term of 15 years’ imprisonment. Defendant now appeals from his conviction and sentence.

T.N., the seven-year-old victim, lived with two siblings and her father. The defendant, who at the time of the alleged offenses was 17 years of age, baby-sat for his young sisters, as well as for T.N. and her siblings. The alleged offense took place during the baby-sitting. Other than T.N., no witnesses saw the alleged violations. Witnesses repeated what T.N. had reported to them. An obstetrician-gynecologist testified as to what T.N. told her and that she had discovered irregularities in T.N.’s hymenal ring and introitus which reflected old injuries. She testified that T.N.’s hymenal ring was not opened to a degree that a penis could have entered and agreed a jumbo crayon could fit.

A retired police psychologist was called by the State as an expert witness and testified that inappropriate knowledge by a child of sexual activity, inappropriate play or activity with other children, and inappropriate sexual behavior with adults are behavioral characteristics of sexually abused children. A Department of Children and Family Services (DCFS) investigator, who repeated what T.N. told her during cross-examination, testified that T.N. indicated the defendant “did it to” his two young sisters “too.” This testimony had previously been barred by the trial court.

I

First, we address defendant’s allegation that the trial court erred in refusing evidence that T.N. had viewed sexually explicit videotapes. This testimony and testimony regarding T.N. putting things in her vagina was prohibited by the trial court, on the theory it was barred by the Illinois rape-shield statute, section 115 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7), which provides, in part:

“In prosecutions for aggravated criminal sexual assault *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7(a).

We now hold that the rape-shield statute does not apply to the facts before us for two reasons. First, the rape-shield statute applies to “prior sexual activity” or “reputation.” The viewing of pornographic videotapes by a curious seven year old does not constitute evidence of either. Second, the policies behind the rape-shield statute were the prevention of harassment and humiliation of victims and the encouragement of victims to report sexual offenses. (People v. Sanders (1989), 191 Ill. App. 3d 483, 486, 548 N.E.2d 103, 105.) Those policies cannot justify denying a defendant the right to refute evidence which tends to establish sexual abuse took place. The right to confront and call witnesses on one’s own behalf are essential to due process. (Chambers v. Mississippi (1973), 410 U.S. 284, 294, 35 L. Ed. 2d 297, 308, 93 S. Ct. 1038, 1045.) The State’s psychologist, by stating sexual knowledge is evidence of abuse, made relevant T.N.’s other sources of knowledge of sexual conduct. The defendant was, in part, seeking to show T.N. was not sexually abused. Needless to say, this was critical to the defense. The observation of sexually explicit videotapes, in this case referred to as XXX-rated, could well justify a fact finder’s determination that a child’s acting out could have been caused from her observations. When knowledge of sexual activities becomes an issue, as in the present case, the rape-shield statute does not apply, and due process precludes its application.

We are aware there were various XXX-rated videotapes available, and the evidence was not clear as to which had been observed. Considering that themes of obscenity can be somewhat consistent, we find it necessary, in the present case, to say a sample, as tendered by the defense, should have been admitted. Because of the importance of the knowledge issue, we hold that refusal to admit this information was reversible error.

Cross-examination of the examining doctor who testified at trial established that the injury to the vaginal area could have been caused by repeated insertion in her vagina, by T.N., of jumbo crayons and other items. Evidence of such conduct then became relevant as to cause of the injuries as testified to by the doctor. The injury evidence was introduced to prove the abuse took place. Evidence that the injury may have been otherwise caused was also critical to the due-process rights of the defendant, and is not barred by the rape-shield statute. The rape-shield statute should be construed and applied so as to uphold the constitutional rights of the defendant, while creating the least possible interference with the legislative purpose reflected in the statutes. Summitt v. Nevada (1985), 101 Nev. 159, 162, 697 P.2d 1374, 1376.

II

Based upon the State’s motion in limine which was filed prior to trial, the court prohibited any reference to misconduct by the defendant toward his two young sisters. The State’s motion was precipitated by defendant’s desire to call the girls so they could testify that the defendant had not abused them. During cross-examination of the State’s DCFS witness, that witness unnecessarily expanded an answer by saying, “She [T.N.] indicated he did it to [his stepsisters], too.” Immediately after this answer, defense counsel requested a conference at the bench, which was not recorded by the court reporter. No bystander’s report of this conference was made part of the appellate record. This failure indicates the necessity for counsel and the court to be certain a complete record is maintained throughout a trial.

Generally, in a child sexual-abuse case, acts of abuse with children other than the present complainant are not admissible as proof of the crime charged unless they show intent, motive, identity, absence of mistake, knowledge, common design, scheme or plan, or modus operands (People v. Esterline (1987), 159 Ill. App. 3d 164, 168, 512 N.E.2d 358, 361, appeal denied (1987), 117 Ill. 2d 548.) Erroneous admission of evidence of other crimes carries a high risk of prejudice and, ordinarily, calls for reversal. (People v. Lindgren (1980), 79 Ill. 2d 129, 140, 402 N.E.2d 238, 244.) The State, while contending the error was waived, admits the evidence was not admissible. We find the suggestion that defendant had perpetrated the same crimes against his six- and seven-year-old stepsisters is highly prejudicial, and it is error which requires reversal. We do not agree that defendant waived objection to this testimony. The circumstantial evidence regarding the conference at the bench, immediately after the objectionable statement, established that defense counsel objected to the testimony.

Ill

In an odd twist, after insisting that pornographic videotapes should be admitted to show T.N.’s knowledge of sexual behavior, defendant argues it was error to introduce evidence that he showed T.N. pornographic movies. However, as we have already indicated, evidence of uncharged wrongdoing may be admitted to show defendant’s intent, knowledge, or motive. Such evidence is admissible in cases where the proffered evidence is so clearly connected with the main issue in the case at bar as to tend to prove the accused guilty of the offense charged. (People v. Daugherty (1983), 112 Ill. App. 3d 541, 545, 445 N.E.2d 473, 475.) Evidence indicating the defendant showed T.N. pornography suggests his intent at self-arousal and could be logically interpreted as a scheme to seduce the child. The court’s ruling allowing this evidence was correct.

IV

Defendant also contends that the trial court erred by prohibiting him from presenting witnesses at T.N.’s competency hearing who would testify that she lied frequently and had a poor reputation for telling the truth.

The Illinois witness competency statute states that every witness, regardless of age, is presumed competent to testify. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14(a).) A witness may be disqualified if the moving party can demonstrate that the witness is either incapable of expressing himself or is “[ijncapable of understanding the duty of a witness to tell the truth.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14(bX2).) The question of a minor witness’ competency is for the trial court, and its competency ruling will not be disturbed absent an abuse of discretion or a misapprehension of some legal principle. (People v. Born (1987), 156 Ill. App. 3d 584, 587, 509 N.E.2d 125, 126, appeal denied (1987), 116 Ill. 2d 563.) Neither of the foregoing bases for reversal is present in this case.

Section 115 — 14 suggests that intellectual rather than moral fitness is the true measure of witness competency. The witness competency statute indicates that a witness may be disqualified if she is incapable of understanding the duty to tell the truth (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14(bX2)), but does not provide that a witness who is unlikely to tell the truth may be disqualified. The latter is a credibility determination best left to the trier of fact.

This court has recently stated, “It is not the trial court’s role to evaluate witnesses and to permit the testimony of only those witnesses the court finds credible. Credibility determinations are peculiarly within the province of the jury and may never be the basis to reject otherwise admissible testimony.” (People v. Trail (1990), 197 Ill. App. 3d 742, 748, 555 N.E.2d 68, 73.) Accordingly, we reject defendant’s argument that in order to meet his burden under section 115 — 14 to demonstrate that T.N. is not qualified to be a witness, he should be permitted to call witnesses who would testify either that T.N. had lied to them or that T.N. had a bad reputation for telling the truth. Such evidence has no relevance when a court decides whether a witness is qualified under section 115 — 14 to testify. The trial court did not err by refusing to consider T.N.’s credibility in determining her competence to testify.

V

T.N. apparently made accusations of defendant’s sexual abuse two years prior to the current charges. Defendant’s request to introduce evidence that “two years ago the alleged victim had accused the Defendant and DCFS had found that accusation to be unfounded” was denied by the trial court. Defendant says this denial was reversible error. A complainant’s prior or subsequent unfounded allegations of sexual abuse against the accused may be admissible, if they bear upon the complainant’s credibility. (People v. Howard (1983), 113 Ill. App. 3d 380, 447 N.E.2d 473; People v. Nicholl (1991), 210 Ill. App. 3d 1001, 569 N.E.2d 604.) However, a trial court may exclude evidence when its relevance is so speculative that it is of little probative value. (People v. Gorney (1985), 107 Ill. 2d 53, 60, 481 N.E.2d 673, 675.) A reviewing court will not substitute its judgment for that of the trial court on issues of admissibility absent a clear showing of abuse. (People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.) The evidence of the prior accusation comes from a voluminous file, including DCFS records, interviews, and reports. While defendant wants to use a DCFS determination or suggestion not to prosecute or continue proceedings, the file also indicates defendant did admit improper touching of T.N. The decision by DCFS to recommend not pursuing an action was not a judicial decision, and is not a final determination that the accusations by T.N. were false. In Clinebell v. Commonwealth (1988), 235 Va. 319, 368 S.E.2d 263, the Virginia Supreme Court noted that “a majority of jurisdictions that have considered the issue hold that evidence of prior false accusations is admissible to impeach the complaining witness’ credibility or as substantive evidence tending to prove that the instant offense did not occur.” (Clinebell, 235 Va. at 324, 368 S.E.2d at 265 (and authorities cited therein).) However, the court explained that such evidence is admissible “only if a court makes a threshold determination that a reasonable probability of falsity exists.” (Clinebell, 235 Va. at 325, 368 S.E.2d at 266.) Although Illinois courts have not articulated a similar threshold requirement, it seems that general relevance considerations would require the movant to demonstrate that the proffered testimony would prove it more likely than not that the prior accusations were false. Without such a showing, the probative value of the evidence would be slight. As we have indicated, the defendant’s proffered evidence, i.e., the DCFS files, does not establish that it was more likely that the prior accusation was false. The trial court’s ruling was correct. See Gorney, 107 Ill. 2d at 60, 481 N.E.2d at 675 (and cases cited therein).

VI

Defendant contends that the convictions must be reversed because the jury instructions for aggravated criminal sexual assault did not specify a mental state. Our court ruled adverse to defendant’s contention in People v. Burton (1990), 201 Ill. App. 3d 116, 123-29, 558 N.E.2d 1369, 1374-78 (Steigmann, J., concurring in part and dissenting in part). In People v. Smith (1991), 209 Ill. App. 3d 1043, 1061, 568 N.E.2d 482, 493, this court reaffirmed its decision in Burton, and we decline to review the issue further.

Finally, as this case is being remanded for retrial, we elect to refrain from comment on the propriety of the trial court’s sentence.

Reversed and remanded.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TERRY D. ELSPERMAN, Defendant-Appellee.
    Fourth District
    No. 4—91—0179
    Opinion filed September 12, 1991.
    Richard J. Ringhausen, State’s Attorney, of Jerseyville (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In September 1990, defendant, Terry D. Elsperman, was charged with aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)), obstructing justice (Ill. Rev. Stat. 1989, ch. 38, par. 31— 4(a)), battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(1)), and resisting a peace officer (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1). The obstructing justice charge alleged that defendant, “with the intent to prevent the apprehension of Terry Elsperman, knowingly ran from, hid from and had to be chased on foot by Martin E. Andrews, a peace officer, thereby concealing the physical evidence of his person.” In February 1991, defendant filed a motion to dismiss the obstructing justice charge. After a hearing on that motion, the court granted it in a written order entered in March 1991. The State appeals and we affirm.

The statute in question, section 31 — 4 of the Criminal Code of 1961 (Code), reads as follows:

“A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information; or
(b) Induces a witness having knowledge material to the subject at issue to leave the State or conceal himself; or
(c) Possessing knowledge material to the subject at issue, he leaves the State or conceals himself.
(d) Sentence.
Obstructing justice is a Class 4 felony.” Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4.

In its order of dismissal, the court wrote that the State’s theory of the case was that defendant “concealed his person,” thereby concealing physical evidence relevant to his prosecution for aggravated battery. The State argued to the trial court that by concealing his person, defendant was allowing the passage of time to dissipate and eventually destroy the physical characteristics of alcohol on his breath, the color of his skin and eyes, his manner of walking, and the slurring of his speech. The State argued to the trial court that defendant’s actions of running away and hiding from the arresting officer deprived the State of evidence pertaining to the degree of defendant’s intoxication and, further, that defendant intended to obstruct his prosecution when he performed those acts.

Defendant argued, and the trial court agreed, that the person of the defendant is not “physical evidence” envisioned by the statute and that the proper charge for a person who hides from a law enforcement officer, prior to arrest, may be resisting or obstructing a peace officer (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1), a Class A misdemeanor — with which defendant was also charged — but is not obstructing justice (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4), a Class 4 felony.

The plain language of section 31 — 4(a) of the Code renders awkward at best any effort to include the person of the defendant within the term “physical evidence” that the defendant allegedly destroyed, altered, concealed, or disguised — those acts being the gravamen of the crime. However, any doubt about the legislature’s intent not to include the person of the defendant within the meaning of section 31 — 4(a) of the Code is eliminated when one examines section 31 — 4(c) of the Code, wherein the statute directly refers to the defendant on trial for obstructing justice and provides that a person commits that offense when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, and while “[possessing knowledge material to the subject at issue, he leaves the State or conceals himself.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4(c).) If the legislature had intended section 31 — 4(a) of the Code to have the meaning which the State now argues, it would read as follows: “A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly *** destroys, alters, conceals or disguises physical evidence, conceals himself plants false evidence, [or] furnishes false information.”

In People v. Ivy (1987), 166 Ill. App. 3d 266, 269, 519 N.E.2d 988, 990, the case closest on point, the court wrote the following: “The essence of the crime [of obstructing justice] is destruction or concealment of evidence relating to a criminal investigation or prosecution.” Our construction of section 31 — 4(a) of the Code is consistent with the holding in Ivy.

We also agree with defendant’s argument that the legislature intended section 31 — 1 of the Code (resisting or obstructing a peace officer) to apply to those instances in which a police officer attempts to make an arrest but the suspect runs away. (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1.) Furthermore, if a police officer has succeeded in making an arrest and the suspect then escapes from police custody, that criminal conduct is covered by section 31 — 6 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 6), defining the offense of escape.

For the reasons stated, the judgment of the circuit court dismissing count II of the information, which charged defendant with obstructing justice, is affirmed.

Affirmed.

LUND, P.J., and McCULLOUGH, J., concur.


author: JUSTICE SPITZ

text:
    THE VILLAGE OF CAMP POINT, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee (Edward B. Tucker, Defendant).
    Fourth District
    No. 4—90—0650
    Opinion filed September 12, 1991.
    Rehearing denied October 17, 1991.

      Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., of Jacksonville (Larry D. Kuster, of counsel), for appellant.
    John L. McMullin and T. Michael Ward, both of Brown & James, P.C., of St. Louis, Missouri, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by plaintiff, Village of Camp Point (Village), Illinois, from a declaratory judgment entered following a bench trial conducted in the circuit court of Adams County. The action named former Village attorney Edward B. Tucker and his professional liability carrier, Continental Casualty Company, as defendants, and sought to have the trial court declare one or more occurrences were covered by a series of professional liability policies issued to Tucker by Continental Casualty for the years 1978 through 1982. The trial court, after a bench trial, found there was coverage for one occurrence under a policy issued for 1978. On appeal, plaintiff argues coverage should have been found under the remaining policies and for multiple occurrences.

The starting point for a review of the facts of this case is a description of the relevant portions of the policies involved. Continental Casualty issued a renewal certifícate to Tucker & Kanoski, 129 S. Congress Street, Rushville, Illinois, for the policy period July 2, 1978, to July 2, 1979. The policy number was designated as 1267094 and three attorneys were named as insureds, Michael J. Hollaban, Ronald J. Kanoski, and Edward B. Tucker. The liability limits for professional business liability were $100,000 per occurrence and $300,000 aggregate, with a $1,000 deductible. Under this policy the State and Federal securities law violation exclusion was waived under primary coverage. There was no excess coverage. The deductible applied per occurrence. Under coverage A (professional liability), the company agreed:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages arising from the performance of professional services for others in the insured’s capacity as a lawyer because of an error, negligent omission or negligent act of the insured or of any other person or organization for whose error, negligent omission or negligent act the insured is legally responsible.”

Coverage A of the policy applied to “errors, negligent omissions and negligent acts taking place during the policy period.” With regard to professional services, an “occurrence” is defined in the policy as “an error, negligent omission or negligent act or a series of related errors, negligent omissions or negligent acts, regardless of the number of claims or claimants.” “The limit of the Company’s liability to pay damages and to pay claims expenses arising therefrom as the result of each occurrence shall not exceed the amount stated in the declaration of the policy as ‘each occurrence.’ ” Of course, the company’s limit of liability to pay damages and claims expenses for all occurrences does not exceed the amount in the declaration designated as “aggregate,” but if the policy is issued for a person in excess of one year, the aggregate limit of liability applies separately to each annual period.

For the policy period January 1, 1979, to January 1, 1980, Continental Casualty issued comprehensive lawyers’ liability policy No. 4381979 to Edward B. Tucker & Associates, 116 S. Capitol, Mt. Sterling, Illinois, covering attorneys Hollaban and Tucker. The limits of liability were $100,000 per occurrence and $300,000 aggregate, with a $1,000 deductible. The relevant language of the policy is essentially the same as the previous policy.

Policy No. 4381979 was renewed for the policy period January 1, 1980, to January 1, 1981. Added to the coverage was a $1 million per occurrence professional business umbrella supplement. The record does not contain the entire policy and, therefore, it must be assumed the pertinent policy language did not change.

However, the policy language did change when policy No. 4381979 was renewed for the policy period January 1, 1981, to January 1, 1982. The policy declaration sheet indicated limits of professional liability as $100,000 for each “claim” and an aggregate of $300,000 (coverage A). In addition, there was added business liability coverage of $100,000 for each “occurrence” (coverage B). No umbrella coverage was indicated thereon. In the policy, coverage B is described as office premises and nonowned automobile liability coverage and obligated the company to pay damages for bodily injury and property damage arising out of the ownership, maintenance or use of the lawyer’s office or a nonowned automobile. Coverage B does not apply to this case, but the word “occurrence” is retained for coverage B while it is changed to “claim” for coverage A. In any event, the relevant language of coverage A obligated the company to pay damages “arising from the performance of professional services for others during the policy period in the insured’s capacity as a lawyer, real estate title insurance agent or notary public because of an act or omission of the insured or of any other person or firm for whose act or omission the insured is legally responsible.” The policy’s definition of “occurrence” is restricted in its application to coverage B. “Claim” is defined as “a demand for money or services or the filing of a suit or institution of arbitration proceedings naming the insured and alleging an insured act, omission or activity.” The deductible applied to each “claim.” The policy further provided:

“Regardless of the number of insureds, claims or claimants:
1. The inclusion herein of more than one insured or the making of claims or the bringing of suits by more than one person or organization shall not operate to increase the Company’s limit of liability. One or more claims arising out of a single act or omission or a series of related acts or omissions shall be treated as a single claim.”

On January 9, 1978, plaintiff entered into an agreement with Tucker and his law firm. Under the agreement, Tucker was to provide legal representation regarding a special project involving the construction of a golf course and swimming facility. The legal services anticipated to be provided under the agreement were described as, but not limited to, the following:

“1. Furnishing advice and assistance to the governing body being the Village in connection with:
a. Preliminary Project planning; b. The preparation of ordinances, levies and tax and bond work; c. The preparation and enactment of such resolutions as may be necessary in connection with the authorization of financing, construction and operation of the said project; d. The preparation of such Affidavits, publication notices, or other instruments necessary for the conduct of the Project; e. The preparation and completion of such bonds or other obligations as may be necessary to finance the project from time to time; f. The completion, execution of documents for obtaining loans required; g. The preparation of construction contracts; h. Preparation and adoption of rules and regulations, rates and schedules.
2. The preparation when necessary and review of deeds[,] easements, rendering title opinions with reference thereto; and all other matters required to be accomplished for and on behalf of the Village [in] relation to the project.
3. Obtaining necessary permits and Certificates from County, and other municipal bodies, State regulatory agents, and all public or private sources.
4. Cooperate with the engineers employed by the Village in connection with all engineering contracts for the project.
5. When applicable, secure the assistance of and cooperate with recognized bond counsel in the preparation of documents necessary for the financing of the project as required by the Village.”

The agreement also established Tucker’s compensation as follows:

“1. In the event the project is conducted under the guidance of a recognized securities firm the fee for the attorneys services shall be 1% of project costs.
2. In the event the project is not conducted under the guidance of a recognized securities firm the fee for the attorneys services shall be 1.5% of project costs.
3. In the event the project is not completed the attorney shall be paid an hourly rate commensurate to the rate now charged the Village for time spent.
Compensation paid the attorney shall be exclusive of any charges by Bond Counsel as required for the project.”

On September 11, 1978, plaintiff, through its Village Board, adopted ordinance No. 3 — 1978—1979 (ordinance No. 3) as drafted by Tucker, which authorized the issuance of $550,000 in recreation revenue bonds for the purpose of paying the cost of the project. (Village of Camp Point, Ill., Ordinance 3 — 1978—1979 (Sept. 11, 1978).) The ordinance contained language pledging revenue-sharing and sales-tax funds as security for the payment of the bonds if the operating revenue from the project was insufficient to service the debt.

On September 12, 1978, Tucker sent a copy of the ordinance No. 3 to attorney Charles P. Carlson, a recognized municipal bonds counsel. They met on September 28, 1978, to discuss ordinance No. 3, and at that meeting, Carlson informed Tucker he could not serve as bond counsel or render a bond opinion on the ordinance. Carlson’s main concerns were (1) the pledge of revenue-sharing and sales-tax funds could make the ordinance invalid, and (2) no feasibility study had been prepared.

After the discussion over Carlson’s concerns, the meeting was concluded. Carlson never told Tucker he would serve as bond counsel for the project. Carlson and Tucker never discussed passing a separate resolution pledging the payment of revenue-sharing and sales-tax funds to pay the debt service on the bonds.

On September 30, 1978, plaintiff adopted ordinance No. 4 — 1978— 1979 (ordinance No. 4). (Village of Camp Point, Ill., Ordinance 4— 1978 — 1979 (Sept. 30, 1978).) Ordinance No. 3 was repealed by ordinance No. 4. Ordinance No. 4 contained the same basic provisions as ordinance No. 3, except there was no reference to the pledging of revenue-sharing and sales-tax funds. On September 30, 1978, however, plaintiff’s Village Board also passed a separate resolution pledging revenue-sharing and sales-tax funds to ensure payment of the bond obligations. Tucker knew the adoption of the September 30, 1978, resolution was risky and that plaintiff Village might not be able to support this procedure, and the Village Board was so advised. Pursuant to ordinance No. 4, $290,000 worth of the $550,000 in 6% bonds authorized to be issued were sold.

The Village’s expert witness, bond counsel Martha Haines, testified that upon the sale of each bond plaintiff incurred the obligation to repay. Haines testified ordinance No. 4 was one of three separate and distinct bond transactions. While Haines believes ordinance No. 4 was properly drafted and is a valid ordinance, she is of the opinion that Tucker failed to meet his professional standard of care in advising plaintiff to adopt the resolution of September 30, 1978, which involved pledging revenue-sharing and sales-tax revenues to secure the payment of the recreation revenue bonds. There is no statutory authority for such a pledge. With Tucker’s knowledge about the risky nature of such a pledge, according to Haines, it violated his duty of care to draft the resolution even if instructed to do so. Furthermore, throughout these various transactions, a bond counsel’s opinion was not obtained from recognized bond counsel, and no offering circulars were prepared to inform purchasers about the bonds. No proper feasibility study was performed to determine whether the project would succeed.

Haines testified the customary procedure for issuing revenue bonds is to determine the scope of the project and estimate its cost. The next step is to study the feasibility of the project to reveal whether the revenue stream would support the debt and the cost of operation. Bond counsel would ordinarily prepare a bond ordinance. A purchaser for the whole bond issue would ordinarily be located through a publication requesting bids from underwriters and the public at large. Simultaneously with the adoption of the bond ordinance, the sale of bonds to a particular purchaser would be authorized. There is a bond closing and the bonds are sold. The proceeds are deposited into a project fund and the expenditure of funds is restricted by ordinance to the purpose for which the bonds were issued. This is part of the contract with the bondholders.

The procedures for a valid revenue bond transaction are specified by statute. (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 94—1.) Haines testified a municipal corporation is authorized to take only those actions expressly provided for by statute. Without an express authorization, a municipality cannot act. For bond counsel, according to Haines, if it is a gray area of the law, an unqualified bond opinion cannot be given.

The distinction between a general obligation bond and a revenue bond is the source of the obligation to repay, Haines testified. General obligation bonds are generally payable from the general corporate resources of the issuing entity. They are usually backed by a pledge of real-estate tax. Revenue bonds, on the other hand, are repaid solely from the revenues of the project being financed. There is a statutory basis for this distinction.

Tucker did not consider himself to have expertise in the area of municipal bonds. On October 25, 1978, Tucker sent a letter to Farmers State Bank of Camp Point and other prospective bond purchasers, which letters were not intended to be relied on for final determination of participation. In the letter, Tucker stated he was enclosing a copy of the bond and a copy of the resolution authorizing the payment of the bonds from revenue-sharing and sales-tax proceeds. He stated plaintiff would provide an offering circular explaining fully the terms and obligations of the bonds and an opinion of bond counsel from Carlson’s law firm. Tucker further stated the bonds were considered to be municipal bonds for tax purposes and the resulting income was exempt from taxation. The offering circular and an opinion from bond counsel were never provided. Tucker did not feel he had a right or a duty to tell the Village Board not to adopt the September 30, 1978, resolution pledging sales-tax and revenue-sharing money. He explained the risks and the Village Board made the decision.

Village clerk Charlene Gordon testified that when ordinance No. 4 was adopted there was an understanding that one bond issue was all that would be necessary to complete the project. Gordon also testified the Village Board followed Tucker’s legal advice from 1978 through 1981, and she was not aware of any time that the Village Board refused to comply with Tucker’s legal advice. Gerald Bartell, then president of the Farmers State Bank of Camp Point, testified the pledge of revenue-sharing and sales-tax revenues was important to make the bonds salable.

On February 6, 1979, plaintiff established a recreation park bond and interest retirement account, with an initial deposit of $10,000, and $1,500 to be deposited monthly from sales-tax revenue until the Village Board decreed such deposits were no longer necessary for retirement of the bonds. Village of Camp Point, Ill., Resolution (Feb. 6, 1979).

Bartell testified the Farmers State Bank of Camp Point placed a lot of reliance on the February 6, 1979, resolution because the money was going to be set aside for the retirement of the bonds. A copy of this resolution was part of the receipt Farmers State Bank received when it purchased its bonds. Haines opined the February 6, 1979, resolution was invalid. There was no statutory authority for it. The drafting and advice regarding that pledge did not meet the standard of care for an attorney in Illinois.

On December 10, 1979, the Village Board adopted ordinance No. 6 — 1979—1980 (ordinance No. 6). (Village of Camp Point, Ill., Ordinance 6 — 1979—1980 (Dec. 10, 1979).) Ordinance No. 6 sought to amend ordinance No. 4 by recalling $260,000 of 6% bonds, and providing instead for the issuance of $260,000 of 8% bonds to mature in 10 years for the purpose of paying the cost of the project. On December 10, 1979, plaintiff Village also adopted a resolution stating that, in order to expedite the sale of the bonds, revenue-sharing and sales-tax funds sufficient to ensure the payment of the bond obligations were being pledged. Village of Camp Point, Ill., Resolution (Dec. 10, 1979).

Tucker prepared ordinance No. 6 because a portion of the 6% bonds were unsold. He did not recall obtaining any advice from Carlson regarding the issuance of the bonds, or regarding the preparation of the ordinance. No consents were obtained from the bondholders who had purchased bonds at 6% under ordinance No. 4 to allow for the reissuance of the remaining unsold bonds. Tucker did not advise the Village Board that by adopting ordinance No. 6 it would violate the parity provisions of ordinance No. 4. Pursuant to the passage of ordinance No. 6, Tucker did not recall advising plaintiff to prepare any additional financial projections or a rate study. No offering circular was prepared, nor was an opinion from bond counsel obtained.

Haines testified ordinance No. 6 is an invalid exercise of municipal authority. The terms of ordinance No. 6 breached the contract with the previous bondholders. The subsequent bonds issued under ordinance No. 6 were not on a parity with the bonds issued and sold under ordinance No. 4, as was required by the earlier ordinance. Nor were the ordinance No. 6 bonds subordinated to the previous bonds. No consents from previous bondholders were obtained. Furthermore, ordinance No. 6 does not meet statutory requirements. The statute requires revenues to be pledged to pay operation and maintenance, then to retire debt and to establish an adequate depreciation fund. Ordinance No. 6 did not establish an operation and maintenance account or a depreciation account. It also reduced the reserve account established by prior ordinance from $30,000 to $20,000. Ordinance No. 6 was not properly published. Finally, ordinance No. 6 materially changed the interest rate and the maturity schedule for the bonds, thereby substantially changing the debt load on the facility. According to Haines, ordinance No. 6 appeared to be an attempt at a refunding of authorized but unissued bonds. To properly refund bonds, all bonds must be refunded and new bonds issued or, in the alternative, consents must be obtained from holders of the original bonds. A refunding is a separate and distinct bond transaction. (See Ill. Rev. Stat. 1989, ch. 24, par. 11 — 94—1.1.) The resolution of December 10, 1979, pledging revenue-sharing and sales-tax monies is invalid for the same reasons as the earlier September 1978 resolution. This resolution and ordinance No. 6 did not, in Haines’ opinion, meet the standard of care for an attorney in Illinois.

On April 14, 1980, plaintiff adopted a resolution effectively raising the rate of interest on the $260,000 of recreation revenue bonds refinanced through ordinance No. 6 from 8% to 9% per annum by discounting the face value of the bonds. (Village of Camp Point, Ill., Resolution (Apr. 14, 1980).) Tucker does not recall drafting this resolution or receiving advice from Carlson about it.

Haines testified the April 14, 1980, resolution was invalid because an ordinance cannot be amended by a resolution. This resolution purports to amend ordinance No. 6. In order to raise the interest rate on bonds or provide for 9% bonds, it would require amending the earlier ordinance, cancelling unissued bonds, or by refunding those that had already been issued. Here, no separate bond transaction was performed. However, bonds were sold pursuant to this resolution by plaintiff on a discounted basis.

On October 12, 1981, the Village adopted resolution No. 6 — 81— 82, authorizing the issuance of an additional $50,000 in recreational revenue bonds. (Village of Camp Point, Ill., Resolution 6 — 18—82 (Oct. 12, 1981).) The resolution stated: $550,000 in recreational revenue bonds had been issued by plaintiff under the provisions of ordinance No. 6; the plaintiff deemed additional bonds should be issued in the amount of $50,000 to complete construction; plaintiff had been granted the right to issue additional bonds under the provisions of section 12 of ordinance No. 6; and the bonds were to be bound by the same terms and conditions as set forth in ordinance No. 6.

Although Tucker had resigned as village attorney on August 10, 1981, he agreed to work with plaintiff to complete the project. Village clerk Charlene Gordon typed resolution No. 6 — 81—82 pursuant to Tucker’s dictation over the telephone, although Tucker testified he did not believe he prepared that resolution because of the way it was typed. Tucker did not remember any conversation with bond counsel regarding the preparation of the October 1981 resolution.

Haines testified that resolution No. 6 — 81—82 is invalid. Bonds must be issued by ordinance, not by resolution. The statutes require an ordinance. Also, the statutes require certain specific steps in establishing the revenue fund and the repayment of the bonds. This resolution is silent as to all those requirements. In drafting the resolution and advising plaintiff regarding this resolution, Tucker did not meet the standard of care.

Haines considered this a separate bond transaction. To issue a separate series of bonds requires a separate and distinct bond transaction. As best she could determine from the resolution, the bonds were intended to be completion bonds, but did not meet the requirements of ordinance No. 6, in that there is no statement from an engineer regarding the necessity of the funds and the use of prior proceeds.

The Village engineer, William H. Klingner, testified he recalled a report was made indicating the last $50,000 in bonds were needed to complete phase two of the project. The need for these funds was unforeseen at the beginning of the project.

The plaintiff subsequently sold $50,000 in bonds, as shown by the testimony of Thomas J. Arnold, CPA, auditor for plaintiff, concerning payment of interest thereon. The facility did not generate sufficient revenues after opening to meet operation expenses and debt obligations. Transfers from other corporate funds, including revenue sharing and sales tax, were made to meet these obligations. This was done pursuant to the various pledges of revenue-sharing and sales-tax money to secure the bonds as adopted by the plaintiff by resolution.

Each time a bond was sold or the general corporate funds were actually transferred to the revenue-bond restricted accounts, according to Haines, the Village sustained injury or damage. When funds are transferred to the restricted-revenue accounts, the funds cannot be used for any other purpose pursuant to the contract with the bondholders and the statute. Consequently, plaintiff lost control of the use of those funds for any other purpose.

Plaintiff defaulted to bondholders on December 31, 1986. In June or July 1987, a bondholders’ agreement was concluded with all outstanding bondholders settling their claims and reissuing bonds to them. Plaintiff sustained damages in the form of fees and costs in concluding the settlement. Mayor Douglas Aeilts testified plaintiff is not a home-rule unit of government and, to his knowledge, has never been one.

The parties stipulated to the admission into evidence of the discovery deposition of Patrice Wilson, claims supervisor for CNA Insurance. According to Wilson, Continental Casualty is a member of the CNA group. The company settled losses on defaulted bonds with the Boatmen’s Bank of Quincy for $10,000 and with the Farmers State Bank of Camp Point for $12,500. These settlements were reached on the theory that only the 1978-79 policy applied to the losses, in that the negligent acts which triggered coverage occurred in 1978.

After considering the evidence and arguments of counsel, the trial court determined that coverage A of policy No. 1267094 only was applicable to the single occurrence in question. The trial court’s reasoning was as follows:

“2) That the alleged damages of the Plaintiff in the underlying law action are clearly and indisputably claims for economic loss.
3) That under Illinois law, recovery of economic losses in a legal malpractice proceeding based on claims of negligence may be based only on a contractual theory and may not be based upon a tort theory. (Collins v. Reynard, 553 N.E.2d 69 (Ill. App. 4th Dist. 1990.) One exception to this rule which would appear applicable to Count II of the underlying law case is when one intentionally makes false representations. Moorman Manufacturing v. National Tank Co. (1982), 91 Ill. 2d 69.
4) That the definition of ‘occurrence’ contained within the policy applicable to the time period when the employment contract was entered into between Defendant Attorney Tucker and the Plaintiff herein, attached to the original complaint as Exhibit A and received into evidence herein, defines that term to mean:
‘With respect to professional services an error, negligent omission or negligent act or a series of related errors, negligent omissions or negligent acts regardless of the number of claims or claimants.’
5) That clearly the work performed by Defendant Tucker, which is the subject of the underlying litigation herein, was all the result of the written employment contract referred to herein and attached to the complaint, and while separate acts were performed by Defendant Tucker over a several year period, the acts or omissions were all ‘related’ within the meaning and intent of the subject insurance policy. The causative factor in the alleged damage to plaintiff was defendant Tucker’s misinterpretation of the permissible use of the sales tax and revenue[-]sharing funds.
6) That a logical analysis of the facts of this cause results in the conclusion that there was one unified transaction conducted pursuant to one contract with performance to be resulting over an extended period of time. Accordingly under Illinois law there was but one occurrence.
7) That in the Court’s analysis of this case, it is of great significance that the underlying law case involves only one plaintiff and one defendant with claimed economic loss resulting from legal malpractice in carrying out a written contract of employment.”

In analyzing this case, it may be helpful to consider the following chart:

Policies
Relevant Activities of Parties
January 9, 1978 — agreement between plaintiff and Tucker
July 2,1978, to July 2,1979: No.1267094
September 11, 1978 — ordinance No. 3 (invalid but later repealed by ordinance No. 4)
September 30, 1978 — ordinance No. 4 (acceptable according to Haines)
—resolution pledging revenue-sharing and sales-tax funds (not acceptable)
January 1, 1979, to January 1,1980: No.4381979
February 6, 1979 — bond and interest retirement account created
December 10, 1979 — ordinance No. 6 (improper refinancing ordinance)
—resolution pledging revenue-sharing and sales-tax funds for bonds under ordinance No. 6
January 1, 1980, to January 1, 1981: No.4381979 (First renewal)
April 14, 1980 — resolution raising to 9% the interest rate on those bonds refinanced in ordinance No. 6 which remained unsold
January 1,1981, to January 1,1982: No. 4381979 (Second renewal)
October 12, 1981 — invalid completion-bond resolution adding $50,000 in bonds under ordinance No. 6

In this case, although extensive testimony was received concerning the nature of the disputed negligent acts, this appeal does not involve the questions of whether legal malpractice was adequately proved or what the proper award of damages recoverable by plaintiff was. Therefore, this analysis will not discuss whether economic losses may be recovered in this case since that is an issue which must be reached in the underlying action. The first question to be decided on appeal is, if Tucker’s conduct amounted to actionable legal malpractice, how many “occurrences” were involved, as that term is defined by the policies issued to Tucker.

The key to plaintiff’s argument is the testimony of Haines that there were three bond transactions involved. However, the “series-of-related-acts” language in the policy may well cover what would otherwise appear to be separate transactions. Plaintiff argues that to describe Tucker’s activities in this case as “one unified transaction does not seem logical.” Both parties agree that the test for determining the number of occurrences relies on an analysis of the causal connection between the malpractice and the injuries. (Mason v. Home Insurance Co. (1988), 177 Ill. App. 3d 454, 532 N.E.2d 526; Michigan Chemical Corp. v. American Home Assurance Co. (6th Cir. 1984), 728 F.2d 374.) Yet, the parties cannot agree on the number of causes.

In the case at bar, plaintiff does not argue that the policy definition of “occurrence” is ambiguous. Plaintiff merely argues that, based on that definition, there were multiple occurrences in this case. In Arizona Property & Casualty Insurance Guaranty Fund v. Helme (1987), 153 Ariz. 129, 134-36, 735 P.2d 451, 456-58, 64 A.L.R.4th 651, 660-63, the supreme court of Arizona explained as follows:

“Ordinarily, if an insurance policy uses ‘occurrence’ without defining the term, the courts inquire whether ‘ “there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages.” ’ See American Indemnity Co. v. McQuaig, 435 So.2d 414 (Fla. App. 1983); Annot., 55 A.L.R.2d 1300 (1957 and Supp. 1978); 8A J. APPLEMAN, INSURANCE LAW AND PRACTICE §4891.25, at 16-19 (1981) (if a cause is interrupted or replaced by another cause, the chain of causation is broken and more than one occurrence has taken place). The Imperial policy definition of ‘occurrence’ employs this causal test (acts or omissions ‘resulting in injury’) but modifies it by using the phrase ‘series of related’ acts or omissions. Under the Imperial policy, a ‘series of related’ causes of an injury merge to constitute only one ‘occurrence.’
Therefore, the question we must address is whether the failures of the two doctors should be treated as one ‘occurrence’ because they constituted a ‘series of related incidents, acts or omissions’ which resulted in the patient’s death. Neither the Imperial policy, the parties, nor the court of appeals have defined the word ‘related’ and our research does not reveal any generally accepted legal meaning; therefore, we will assume that the policy uses ‘related’ in its commonly accepted dictionary sense. Webster’s dictionary defines the intransitive verb ‘relate’ as ‘showfing] or establishing] a logical or causal connection between.’ WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED, at 1916 (1965). A ‘related’ act or omission, therefore, is one that has a logical or causal connection with another act or omission.
We do not believe that the word ‘related’ as used in the policy can be equated with the phrase ‘logical connection.’ Logic, like beauty, is in the eye of the beholder and greatly depends upon the subjective mental process of the reviewer. Incidents may be ‘logically related’ for a wide variety of indefinable reasons. Causal connection depends, to a much greater extent, on objective facts in the record. If we were compelled to equate ‘related’ with ‘logically connected,’ we would be compelled to find the policy provision ambiguous, and for that reason to find in favor of the claimant. Parks v. American Casualty Co., 117 Ariz. 339, 341, 572 P.2d 801, 803 (1977). We have attempted to abandon this approach. See Transamerica Insurance Group v. Meere, 143 Ariz. 351, 355, 694 P.2d 181, 185 (1984). We prefer, instead, to determine the meaning of a clause which is subject to different interpretations or constructions by examining the purpose of the clause, public policy considerations, and the transaction as a whole. Id.
The correlation between ‘series of related acts or omissions’ and ‘causation’ is apparent after examining arguments made by claimants in other multiple-act cases and the manner in which some courts have interpreted similar words when not expressly defined in the policy. See, e.g., Home Indemnity Co. v. City of Mobile, 749 F.2d 659 (11th Cir. 1984) (200 homeowners argued that ‘occurrence’ should be defined in terms of the resulting damage to each of their properties— court holds that number of ‘occurrences’ depends upon the number of causative acts, not the number of injuries resulting); Travelers Indemnity Co. v. New England Box Co., 102 N.H. 380, 157 A.2d 765, 767 (1960) (several parties tried to collect ‘per accident’ policy limits for damage to each of their properties — words held to refer to multiple causes rather than multiple effects); Bacon v. Miller, 113 N.J. Super. 271, 273 A.2d 602 (1971) (plaintiff claimed more than one ‘accident’ when car involved in collision careened into several pedestrians — court restricted recovery to limit for one accident). These cases compel the conclusion that the number of causative acts is the key to interpreting ‘per occurrence’ clauses.
We think it clear that Imperial limited ‘occurrence’ by using the terms ‘series of related incidents ...’ to protect itself from the contention that multiple, causally[ ] connected negligent acts constituted more than one occurrence. The Fund reflected this concern in its briefs when it argued that under survivors’ interpretation, ‘[i]t is foreseeable that each and every time any doctor saw or examined a patient, such failure to accurately re-diagnose the condition would constitute a separate occurrence.’ Limiting coverage for separate ‘occurrences’ by construing a series of causally connected acts or omissions to be a single occurrence would address this concern adequately.
The Fund also argues that there was only one ‘occurrence’ because there was only one injury. The cases, however, show that the number of causative acts, and not the number of injuries produced, determines the number of ‘occurrences.’ See, e.g., St. Paul Fire & Marine Insurance Co. v. Hawaiian Insurance & Guaranty Co., 2 Haw. App. 595, 596, 637 P.2d 1146, 1147 (1981) (separate claims made out each time doctors negligently administered anesthetic to patient-decedent— all causing a single result, death); McQuaig, supra (each of three shotgun blasts fired by homeowner was a separate ‘occurrence’ although blasts only injured two people); see also Maurice Pincoffs Co. v. St. Paul Fire & Marine Insurance Co., 447 F.2d 204 (5th Cir. 1971) (each of eight sales of contaminated bird seed was a separate ‘occurrence’ because each separate sale subjected the insured to liability); St. Paul-Mercury Indemnity Co. v. Rutland, 225 F.2d 689 (5th Cir. 1955) (one ‘occurrence’ when 16 freight cars owned by 14 different owners destroyed in a single accident); Home Indemnity Co., supra (each discrete act or omission or series of acts or omissions, by city which caused flooding is an ‘occurrence’); Colbert County Hospital Board v. Bellefonte Insurance Co., 725 F.2d 651 (11th Cir. 1984) (patient could recover for three ‘claims’ against hospital for three separate surgeries negligently performed by same doctor — each surgery allegedly producing separate injury).
Thus, we conclude that the number of acts producing injury or damage, rather than the number of injuries caused, is the key on which the definition of ‘occurrence’ turns. Multiple acts causing a single injury will constitute multiple occurrences, while a single act will constitute a single occurrence even though it causes multiple injuries or multiple episodes of injury. It follows that Imperial’s use of the word ‘related’ in the phrase ‘series of related acts’ was meant to exclude causally related acts from the rule that multiple causative acts constitute multiple occurrences. Therefore, we hold that the proper construction of Imperial’s definition is that even though there have been multiple causative acts, there will be a single ‘occurrence’ if the acts are causally related to each other as well as to the final result.”

If there is a problem with the analysis by the parties in the case at bar, it is the failure to adequately define the legal terms within the context of the case. In order for this court to determine the cause or causes of the injuries, it is incumbent for the parties to advise this court, with specificity, of the nature of the injuries.

The record does not include a copy of the complaint in the underlying action. Therefore, any conclusion as to the nature of the damages sought and the injury or injuries complained of in the underlying action is derived from the testimony. Apparently, the plaintiff seeks damages not because some of the bonds are invalid, but because the plaintiff paid part of the bond obligations from the general funds including revenue-sharing and sales-tax funds. In fact, it cannot be ascertained from the record that, had the bonds been validly drawn, plaintiff would have incurred any greater liability on the bonds, with the exception that revenue-sharing and sales-tax monies might not have been properly spent.

Furthermore, the existence of the written contract of employment between the parties is not a determinative factor. There is generally a contract of employment between attorney and client. Nevertheless, it is possible that more than one unrelated negligent act or omission could happen during legal representation pursuant to such a contract. Instead, the operative contracts in this case are the insurance policies, and it is important to remember that the polices do not cover the sales of the bonds by plaintiff, but the rendering of legal services to plaintiff by Tucker.

In the absence of allegations or evidence relative to the underlying suit, the only claim of injury demonstrated by the facts of this case is the payment of the bonds out of revenue-sharing and sales-tax funds and the resultant loss of use of that money. However, there exists the possibility of other damages to plaintiff. For example, should ordinance No. 4 bondholders claim the right to additional funds because of a lack of parity with ordinance No. 6 bonds and never having been given the opportunity to refund the ordinance No. 4 bonds, this injury would appear to result from a cause unrelated to pledging sales-tax and revenue-sharing funds. Since the record does not clearly indicate plaintiff’s seeking any other recovery for any injury except the improper application of revenue-sharing and sales-tax funds to revenue bonds, it is that general characterization of the injury which will be relied on by this court. However, within this general characterization of injury are included four specific injuries to plaintiff which are more than just elements of damages for a single injury. These four injuries are (1) pledging revenue-sharing and sales-tax funds for $550,000 in bonds issued at 6%, improperly pledged by resolution in conjunction with ordinance No. 4; (2) pledging by resolution revenue-sharing and sales-tax funds to cover additional interest on $260,000 in bonds refinanced under ordinance No. 6, which raised the interest rate from 6% to 8%; (3) increasing the interest on unsold ordinance No. 6 bonds from 8% to 9% by discounting them; and (4) issuing $50,000 in completion bonds, plus interest.

Moreover, it is incorrect to determine that the negligent act was the rendering of legal advice which Tucker mistakenly believed to be correct. Had this been the case, it is arguable that all of the injuries would have resulted from a series of related acts such that but one “occurrence” was proved. (See Pioneer National Title Insurance Co. v. Andrews (5th Cir. 1981), 652 F.2d 439; Aetna Casualty & Surety Co. v. Medical Protective Co. (N.D. Ill. 1983), 575 F. Supp. 901; Transamerica Insurance Co. v. Keown (D. N.J. 1978), 451 F. Supp. 397.) However, without conceding there is any malpractice at all, this court must look to the acts of negligence to which the evidence points. Those acts are the drafting of documents for plaintiff, each of which increased plaintiff’s liability, while all the time the attorney was fully aware that the pledging of revenue-sharing and sales-tax funds to retire the debts was not statutorily approved. Every time Tucker rendered legal services knowing his activities contravened the relevant legal principles is a separate cause for an injury. There was no mistaken interpretation which Tucker relied on throughout.

As a result, there are four separate occurrences resulting in four separate and distinct injuries. The cause of none of the injuries flows naturally through the preceding event. Nor do they arise from the same underlying cause, as the trial court found. These are not subsequently manifested damages which naturally flow from the initial injury. In the absence of other exclusions — since (1) the policies cover errors, negligent acts or negligent omissions taking place during the policy period, (2) the renewal of a policy is generally conceived to be a new contract (Thieme v. Union Labor Life Insur ance Co. (1956), 12 Ill. App. 2d 110, 138 N.E.2d 857; 22 Ill. L. & Prac. Insurance §130 (1956); 43 Am. Jur. 2d Insurance §443 (1982)), and (3) the plaintiff was injured as soon as plaintiff paid revenue-sharing and sales-tax funds for each enumerated transaction — the relevant policy in effect at the time of the error, act, or omission which caused the injury provides coverage. Based only on an analysis of what constitutes an “occurrence,” we therefore conclude as follows: (1) any damage resulting to plaintiff from pledging revenue-sharing and sales-tax funds to support the $550,000 in 6% bonds issued by ordinance No. 4 is covered by policy No. 1267094; (2) any damages to plaintiff resulting from the pledging of revenue-sharing and sales-tax funds to support the increase in interest on $260,000 of bonds refinanced by ordinance No. 6 is covered by policy No. 4381979, effective from January 1, 1979, to January 1, 1980; (3) any damages to plaintiff resulting from the pledging of sales-tax and revenue-sharing funds to support the change in interest rate from 8% to 9% by discounting unsold ordinance No. 6 bonds is covered by policy No. 4381979 effective January 1, 1980, to January 1, 1981; and (4) any damages resulting from pledging revenue-sharing and sales-tax funds to support issuing $50,000 in completion bonds, plus interest thereon, is covered by policy No. 4381979, effective January 1, 1981, to January 1, 1982.

Neither the trial court nor this court has determined which injuries occurred during the policy periods of the subject policies. Therefore, regardless of the number of occurrences, there may nevertheless be a need to further analyze when plaintiff was injured in order to ascertain which policy or policies provide the coverage. (See American Home Assurance Co. v. Dykema, Gossett, Spencer, Goodnow & Trigg (7th Cir. 1987), 811 F.2d 1077.) Accordingly, the judgment of the circuit court of Adams County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

LUND, P.J., and GREEN, J., concur.


author: JUSTICE CHAPMAN

text:
      In re MARRIAGE OF DONALD R. STRIBLING, Petitioner and Counterrespondent-Appellant, and TERESITA STRIBLING BASKIS, Respondent and Counterpetitioner-Appellee.
    Fifth District
    No. 5—90—0487
    Opinion filed August 23, 1991.
    Rehearing denied October 1, 1991.

      Donald Stribling, of West Frankfort, appellant pro se.

    No brief filed for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The circuit court of Williamson County awarded custody of Christina to her mother, Teresita Stribling Baskis (hereinafter Teresita), over the claim of Christina’s father, Donald R. Stribling (hereinafter Donald), and Donald appealed.

This cause commenced in 1986 when Donald filed his petition for dissolution of marriage. Custody hearings were held February 28 through March 4, 1989. In its April 28, 1989, order the trial court found both parties to be inappropriate custodians and ordered that Christina remain in temporary foster care. The court found that Teresita was the best candidate for custody and indicated that she should receive custody of Christina when her parenting skills improved. On January 31, 1990, Teresita petitioned the court seeking permanent custody of Christina. The trial was held on May 8, May 9, and June 11, 1990. On June 25, 1990, the trial court awarded permanent custody of Christina to Teresita, awarded Donald a minimum of four hours’ monthly supervised visitation, and ordered him to pay $120 monthly child support. Donald, proceeding pro se, has raised the following issues for our review:

(1) Whether the trial court failed to consider all of the “best interests factors” listed in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 602).
(2) Whether the trial court’s decision to award Teresita permanent custody of Christina and to limit Donald to four hours of supervised visitation per month was against the manifest weight of the evidence.
(3) Whether the trial court abused its discretion when it ordered that Donald could not attempt to modify the court’s order for one year and thereafter only upon a showing of “emergency or serious endangerment.”
(4) Whether the trial court abused its discretion when it ordered the Department of Children and Family Services (Department) to determine if Donald’s visitation should be increased.

Teresita has filed no brief with this court. We shall address Donald’s contentions in turn.

Donald initially argues that the trial court did not consider all of the “best interest factors” listed in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 602). Section 602 provides:

“§602. Best Interest of Child, (a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; and
(7) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
(c) The court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. However, such presumption shall not be construed as a presumption that an order awarding joint custody is in the best interests of the child.”

Specific findings of fact are not required under section 602; however, there must be some indication that the trial court considered the listed factors. (Hollo v. Hollo (1985), 131 Ill. App. 3d 119, 474 N.E.2d 827.) Before announcing its decision, the trial court stated:

“Let the record show that the Court has reviewed the statute, the various sections of the Marriage and Dissolution of Marriage Act relating to considerations the Court is to consider with reference to the granting of custody, criteria for the best interests of the child ***.”

We conclude that the trial court considered the factors enumerated in section 602.

Donald next argues that the trial court’s decision to award Teresita permanent custody of Christina and to restrict his visitation rights was against the manifest weight of the evidence. Before awarding custody to a party, it must be shown that such an award will be in the best interest of the child (Ill. Rev. Stat. 1989, ch. 40, par. 602), and before restricting a parent’s visitation privileges, the trial court must find that the visitation would seriously endanger the child’s physical, mental, moral, or emotional health (Ill. Rev. Stat. 1989, ch. 40, par. 607(c)).

The partial record presented to this court clearly reveals that the trial court’s decision to award custody to Teresita and to restrict Donald’s visitation rights was based in part on evidence presented at the February 28 through March 4, 1989, hearings. Donald, however, has not provided this court with the report of proceedings from those hearings.

The absence of a report of proceedings deprives the reviewing court of a basis for reaching issues of sufficiency of the evidence. (In re Marriage of Hildebrand (1988), 166 Ill. App. 3d 795, 797, 520 N.E.2d 995, 996.) Any doubt arising from the incompleteness of the record will be resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392, 459 N.E.2d 958, 959.) Because a complete record was not tendered, we must presume that the evidence supported the trial court’s decision.

Donald next contends that the trial court abused its discretion when it precluded Donald from attempting to modify the judgment for one year and, thereafter, only upon a showing of serious endangerment to Christina. The trial court’s order is somewhat unclear as to whether it was referring to a change of custody or a change of visitation or both.

To the extent that the trial court was referring to the custody award, section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 610) clearly provides that no motion to modify a custody judgment may be made earlier than two years after the date of the order unless the parties enter into a stipulation or unless the child’s present environment seriously endangers his health. Also, once the two-year period has passed, a party may seek a modification of the custody award under the stringent requirements of section 610(b) (Ill. Rev. Stat. 1989, ch. 40, par. 610(b)). In this case the custody award to Teresita is nonmodifiable for two years. Thereafter, Donald may petition the court under section 610(b).

To the extent the court was referring to a change of visitation, we conclude that the “one-year limitation” issue is moot as the one-year period has passed. We conclude, however, that the trial court erred when it ordered that the visitation order was nonmodifiable except upon a showing of serious endangerment to Christina. Section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 607(c)) provides in part: “The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child.” (Emphasis added.) Donald could be entitled to increased visitation if he can show that such visitation will be in Christina’s best interest.

Donald’s final contention is that the trial court abused its discretion when it authorized the Department of Children and Family Services to modify his supervised monthly visitation. We agree.

“Courts have no power to delegate any of their duties unless clearly authorized by law.” (Smallwood v. Soutter (1955), 5 Ill. App. 2d 303, 309, 125 N.E.2d 679, 683; see also People v. Love (1980), 83 Ill. App. 3d 948, 404 N.E.2d 1085.) The legislature has vested the responsibility of establishing visitation schedules and determining whether already established visitation schedules should be modified in the trial courts of Illinois. Ill. Rev. Stat. 1989, ch. 40, par. 607.

The trial court’s order provided in part:

“8. That the father should have some visitation with the child and that this visitation should be left to the discretion of the Department of Children and Family Services but is to at least extend to four hours per month.
9. That the Court recommends to the Department of Children and Family Services but does not order the Department that father/daughter counseling be considered upon a proper state of readiness both of the father and the child.
10. That the Court envisions in time a movement away from the father’s supervised visitation by the Department of Children and Family Services to supervised visitation by a family member and eventually unsupervised visitation.”

We conclude that the trial court’s order could be construed as a delegation of the court’s duties to the Department. Conceivably under this order the Department could award Donald daily visitation rights. On remand we direct the trial court to clarify its order to determine the extent of Donald’s visitation rights and whether or not father/daughter counseling is appropriate.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed in part, reversed in part, and this cause is remanded for proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part; and remanded.

RARICK, P.J., and WELCH, J., concur.