author: JUSTICE LUND

text:
      In re MARRIAGE OF MARTIN FRANK MITTEER, Petitioner-Appellant, and SHARON ELAINE MITTEER, n/k/a Sharon Trombley, Respondent-Appellee.
    Fourth District
    No. 4—92—0447
    Opinion filed February 4,1993.

      Joseph W. Vigneri, of Vigneri Law Office, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner Martin Mitteer appeals from the judgment of the circuit court of Macon County denying his petition to abate his child support payments and granting the petition of respondent Sharon Mitteer Trombley to increase petitioner’s child support payments and order him to pay part of certain orthodontic expenses incurred by Sharon on behalf of the parties’ minor child. We affirm.

The parties were divorced on June 22, 1984. Sharon was awarded custody of the parties’ minor child, Nicole, who was then three years old. Martin was ordered to pay child support of $100 per week. He was also ordered to maintain medical, dental, and prescription drug insurance on Nicole through his employer and to pay 50% of all uncovered costs if he was unable to maintain such insurance. At the time of the divorce, Martin was 27 years old and had a two-year trade school degree in opticianry. He had been employed by Weisser Optical for seven years as an optician. At the time of the dissolution Sharon resided in the State of Michigan, where she continued to reside at the time of the hearing which gave rise to this appeal.

In order to attain a full understanding of our decision, a short history of post-divorce litigation in this case, as revealed by the record on appeal, is necessary.

On March 23, 1987, Martin’s child support payments were, by agreement, reduced to $65 per week. Martin was granted an abatement of child support payments during his summer visitation with Nicole. He had a child support arrearage (in an amount not indicated by the record on appeal) which, as part of this agreement, he was ordered to pay in full within six months. Pursuant to a petition for adjudication of civil contempt which alleged that Martin had not paid his arrearage as agreed, Martin was found to be in contempt on October 30, 1987, but was allowed to pay $15 per week on an arrearage of $2,965 in addition to his current support payments of $65 per week.

Another petition for adjudication of civil contempt was filed by Sharon in May 1989, alleging that Martin was in arrears on his current child support payments in the amount of $455, in addition to $1,790 of the previous arrearage left to be paid under the court’s October 1987 order. Sharon also filed a petition to increase Martin’s child support payments. Martin filed his own petition to modify, asking that Sharon be ordered to assume some of the transportation responsibilities for his visitation and requesting additional abatement of his child support payments for periods he alleged he had Nicole for visitation. The court entered an order on May 31, 1989, disposing of all pending petitions, whereby Martin’s child support was increased to $90 per week and $10 per week on the arrearage. The court refused to make any change in transportation responsibilities or to grant Martin additional abatement of his child support payments.

Sharon filed another petition for adjudication of civil contempt in March 1992, alleging that Martin was in arrears on his current child support payments in the amount of $1,660. He had apparently paid his previous arrearage. Sharon also filed another petition to modify, seeking an increase in Martin’s child support payments, and an order requiring him to provide health, hospitalization, and orthodontic insurance for Nicole and pay her uncovered orthodontic expenses. Yet another petition for adjudication of civil contempt was filed in June 1992, alleging that Martin was in arrears in his current child support payments in the amount of $490. In April 1992, Martin filed a petition to modify, asking that his child support payments be abated for a period of two years, stating that he intended to terminate his employment and enroll in Sangamon State University in Springfield to pursue his bachelor’s degree in a business-related field. In that petition, Martin alleged that (1) his present employment required him to possess a great degree of knowledge and expertise in business and financial matters — fields in which he has had no formal education or training; (2) in order to “advance his career and business pursuits,” he was taking steps to enroll in college as a full-time student to secure this education; and (3) as a result of his enrollment, he would be unable to continue his present employment and to pay his child support payments.

A hearing was held on these petitions on May 1, 1992, where it was indicated to the court that Martin had paid his child support arrearage in full two days prior to the hearing. Sharon testified that she works as a secretary in Michigan. Her financial affidavit shows she had a net income from her employment of just over $12,000 per year. Her husband had been laid off and was receiving unemployment benefits of $272 per week. While he was working, their combined gross income in 1991 was approximately $43,000. Her husband was maintaining health insurance on Nicole, but that ended with his layoff. Sharon stated that she wished to have Martin’s child support raised to at least $100 per week, which was the amount set in 1984. In support of this request, she testified that Nicole’s needs had increased. Her clothes were now more expensive, she eats more food, and she is in Girl Scouts. The testimony also indicates that Nicole has required braces on her teeth. Sharon stated that Martin was aware of Nicole’s need for braces. The total cost of the braces was $2,800, approximately $600 of which was covered by insurance. Sharon testified she had paid about $350 of this expense, but a balance of $1,852.50 remained to be paid. The total amount not covered by insurance is $2,202.50, of which she testified she wanted the court to order Martin to pay one-half. Sharon stated she had signed a contract with the orthodontist in 1991 for the total cost of the braces and is paying the balance in installments. She testified she did not know whether Martin had insurance on Nicole.

Martin testified that he is 35 years old and living in Decatur with his fiancee, Cathy Grinestaff. She owns, and is president of, G.M.S., Incorporated (GMS). That corporation owns and operates American Vision Centers where Martin worked as an optician. Martin admitted that “G.M.S.” stands for Grinestaff, Mitteer and Sanover, but denied any involvement in the corporation or that he had placed any of his assets into the corporation. Martin stated he and Grinestaff are buying a home together and she contributes her own income to their living expenses. Grinestaff’s daughter is also living with them. Martin testified that he has no bank accounts — that he cashes his paycheck. He has a car which is paid for. He borrowed the money from Grinestaff to pay his child support arrearage. In April 1992, he enrolled in Sangamon State University as a full-time student. Martin was on an unpaid leave of absence from his job at the time of the hearing.

Martin testified that he has always had insurance on Nicole and that she was covered at the time of the hearing through his former employer, GMS.

Martin’s financial affidavit was presented to the court. It lists some hefty living expenses, which he indicates are for his entire household. We assume this means for him, Grinestaff, and her daughter. For example, he lists his house payment as $899.25 per month, but he does not indicate what portion he pays. He also lists $800 per month for groceries and household supplies, but does not indicate what part is attributable to his own support. In addition, he lists $480 per month for restaurant meals and $500 per month for personal items and clothes but, again, he does not state what portion of those expenses is attributable to himself. He does not list Grinestaff’s income and there was no testimony at the hearing as to the amount of her income. The only debts he lists are $450 in credit card debts and two loans totaling $2,770 from Grinestaff for child support and summer tuition. His affidavit also shows his net employment income was $2,800 per month prior to quitting his job to return to college.

Martin admitted that his income had increased substantially since the last child support modification in 1989. He stated that Grinestaff had told him verbally that it would be in his best interest to continue his education so that he could be more of an asset to his employer when it was completed. He has not been told that he will lose his optician job if he does not get his degree. He did not handle any of his employer’s books, nor is he a manager of the corporation. He was not qualified to do this — his job was as an optician. His former employer currently hires outside people to manage its finances, which Martin stated was very expensive.

Martin testified that Sangamon State does not offer the courses he is taking on a part-time basis and he elected not to enroll in Millikin University in Decatur because of the expense. He can obtain his degree in two years by going straight through both summers. He stated he did not believe he could handle even part-time employment because of the drive to and from the university and demands for his class and study time.

He testified his career objective is to be able to manage groups of stores. He has observed his former employers and other optical businesses fail due to competition in the industry. He believes his lack of a four-year degree has held him back over the past seven years. Martin testified that when he has completed his education, he can go back to his old position as an optician, if it is available. He has not been promised a higher salary once he gets his degree.

While in school, Grinestaff will support him and pay all household bills. She will also be paying his and Nicole’s health insurance. However, Martin testified that Grinestaff would not agree to support Nicole unless she was living with them. He indicated he believed Sharon could support Nicole on her $15,000-per-year gross income.

On May 4, 1992, the trial court entered a judgment denying Martin’s petition to abate child support, increasing his support payments to $100 per week and ordering him to maintain health insurance on Nicole, to pay one-half of her future expenses not covered by insurance, and to contribute $1,000 toward Nicole’s orthodontic expense. The court made certain findings in its judgment, among which are the following: (1) Martin was recently earning $52,000 per year and Sharon earns $15,000 per year; (2) Martin’s income had increased substantially since May 1989 and Nicole’s needs have increased; (3) Martin’s proposal to have his child support abated was irresponsible, was not made in good faith, and was likely to cause Nicole to become a public charge; (4) Martin could attend the local junior college at night to obtain the business courses he desires, although he would not be able to obtain a four-year degree there; (5) as to the $2,800 orthodontic expense, there is a difference between an already incurred bill in total and one that has been incurred but being paid in installments; and (6) if Grinestaff wants to support Martin, she should also support his child.

On appeal, Martin first takes issue with the trial court’s order requiring him to pay $1,000 of Nicole’s already incurred orthodontic expense.

We note that the judgment of dissolution ordered Martin to maintain medical, dental, and prescription drug insurance on Nicole through his employer and, if he were unable to do so, he was to pay 50% of all uncovered costs incurred by Nicole. The undisputed testimony was that Martin had maintained such insurance through his various employers and that Nicole was currently covered at the time of the hearing.

Martin argues that under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)) he may not be required to pay this orthodontic expense, because it was incurred prior to the filing of Sharon’s petition to modify. Section 510(a) of the Act provides, in relevant part:

“Modification and termination of provisions for maintenance, support, educational expenses, and property disposition, (a) Except as otherwise provided in paragraph (f) of Section 502, in subsection (d), clause (3) of Section 505.2, and in subsection (b) of this Section, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” Ill. Rev. Stat. 1991, ch. 40, par. 510(a).

In support of his argument, Martin cites the case of In re Marriage of Van Winkle (1982), 107 Ill. App. 3d 73, 437 N.E.2d 358. In that case, the custodial mother petitioned the court to order reimbursement from the father for legal and medical expenses she had paid, prior to the filing of her petition, in connection with their son’s juvenile delinquency proceeding. The circuit court ordered the father to reimburse the mother for one-half those expenses. The appellate court reversed this order. The court found that, in effect, the mother’s petition asked for a retroactive modification of the divorce decree, requiring the father to contribute to these expenses, which was not permitted by section 510(a) of the Act. The court noted that the mother had not discussed the expenses with the father or requested contribution from him prior to filing her petition. Van Winkle, 107 Ill. App. 3d at 80, 437 N.E.2d at 364.

We are cognizant that many would consider dental expense distinct from orthodontic treatment. While such treatment may have long been considered cosmetic, we believe the time has come to reject that conclusion. Proper dental treatment, including orthodontic corrections, has become accepted based on personality development and strictly health reasons. It is now understood that as the human animal has developed, certain mouth structures have changed and are not sufficient to hold the number of teeth which naturally grow. Without proper orthodontic work, dental problems and appearance problems develop. By this decision, we hold that the provision for dental insurance and dental expense includes orthodontic treatment. If Martin's dental insurance did not include orthodontic expenses, then the existing support order required him to pay one half the uncovered expense. Thus, the $1,000 award was proper.

Martin next contends the trial court erred in denying his petition to abate child support payments. Martin argues the unrebutted evidence at the hearing established that a bachelor’s degree in business administration and finance would provide him with greater job security and career growth potential in the face of what he claims is fierce competition in the optical industry. He claims it is undisputed that he was told he must further his education to be more of an asset to his current employer.

Modification of child support payments lies within the sound discretion of the trial court. That discretion will not be disturbed on appeal absent an abuse thereof. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 73, 441 N.E.2d 1221, 1229.) An abuse of discretion exists when no reasonable person would agree with the trial court’s decision. In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 260, 547 N.E.2d 590, 596.

It has been recognized that a good-faith, voluntary change in employment which results in diminished financial ability may constitute a substantial change in circumstances justifying a reduction in child support payments. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790; In re Marriage of Lyons (1987), 155 Ill. App. 3d 300, 305, 508 N.E.2d 458, 462.) The test for determining if a decision was made in good faith is whether the change was prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests. In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 330, 547 N.E.2d 749, 751.

Martin testified that he wanted to go back to college because of concern about his future in an increasingly competitive industry. However, we note that his petition to modify alleged his “present employment requires him to possess a great degree of knowledge and expertise in business and financial matters, yet he has had no formal education or training with respect thereto.” Martin presented no evidence that his job with QMS as an optician required him to have anything more than the two-year degree he now has. His rationale for going back to school is illustrated by the following testimony:

“[Sharon’s counsel:] In your motion to abate your support you indicate that your employment requires you to obtain a business degree, is that correct?
[Martin:] The market of the optical industry as a whole and it is very, very competitive. There’s [sic] more major players in the environment today than there were 2 years ago or 10 or 15 years ago and the people who are buying up the smaller companies or corporations and people who are buying up these smaller companies, they want people who have business management skills, business administration, marketing, financing.
* * *
[Martin’s counsel:] Why, if at all, do you have an interest in the business or management of the optical business? I mean, why are you interested in that, if you are?
[Martin:] Well, in order for me to continue on in the business and to further my career in the business, I don’t want to be that person you see saying, how may I help you, everyday from that front door. I want to be able to manage groups of stores, understand the business, marketing finances. I can’t do that today. That’s what’s held me back the last 5, 6, 7 years. There is just no one out there who will give me opportunities because I do not have the credentials.”

We note there was no independent evidence adduced by Martin that a four-year degree is necessary to secure his future within the optical industry. Martin points to his testimony that no other employee at GMS has any business education and training and that GMS currently hires outside personnel, at great expense, to assist in administration, thus implying that he could perform these responsibilities with his new degree. However, Martin does not plan to obtain a job utilizing his new degree when he receives it. He testified that he would return to his optician job at GMS, if available. This assertion does not square -with Martin’s testimony that he was told he should go back to school in order to be a greater asset to GMS.

Martin claims his situation is similar to that in the Webber case cited above. In Webber, the parties were married just out of high school. They had made plans for each of them to further their education. The wife worked while the husband went to school. The husband received a two-year degree in electronics and found a job so that the wife could pursue her college education. After the wife finished her degree, the plan was that she would work while the husband pursued his engineering degree. However, the wife was unable to finish her degree, because dissolution of the marriage intervened in 1982. She did complete her degree over several years after the dissolution, but the ex-husband continued to work at his job. In 1988, he decided to reduce his hours of employment and return to school to obtain his engineering degree. He had received only a $2-an-hour increase in his wages over years, and no opportunities existed for advancement. He filed a petition asking for a reduction in his child support payments for the parties’ two children. He testified that he decided it was a good time to further his education because his ex-wife was employed full-time and his girlfriend was willing to assist him financially. The trial court granted the petition and reduced his payments by $25 per month. This court affirmed, holding that the trial court was justified in finding on the evidence presented that the husband’s decision to return to school and reduce his hours of employment was made in good faith and not from a desire to evade financial responsibility for his children. Webber, 191 Ill. App. 3d at 329-30, 547 N.E.2d at 750-51.

Contrary to Martin’s argument, there are some important differences between Webber and the instant case. In Webber, the parties had agreed, prior to the dissolution, on a plan to educate themselves which could not be accomplished because of the dissolution. The ex-wife then attended college after the dissolution and became employed on a full-time basis. In addition, the ex-husband only had very minimal increases in wages in more than five years at the same job. In contrast, Martin’s income at his present job increased from a 1989 gross income of $36,400 to $52,000 at the time of the hearing below. Further, the ex-husband in Webber merely reduced his employment hours and requested a reduction in child support, not an abatement. Martin has quit his job altogether. Although Martin’s petition contained a general prayer for relief, he specifically stated he would have no income and requested an abatement. He argues on appeal that he was asking for an abatement or, in the alternative, a reduction. However, he did not make that request in the trial court. It is true that the husband in Webber had a child support arrearage at the time he filed his petition, but this court found that the wife was equitably estopped from collecting the arrearage because the husband had taken custody of their son, with the understanding that he would provide for the child’s needs and would not have to pay child support while he had custody. In contrast, Martin has a history of child support arrearage. The record indicates that on one occasion in 1987 he was found to be in contempt for failing to pay his arrearage as agreed. We do not hold that the mere existence of arrearage precludes a noncustodial parent from receiving an abatement of child support in the proper circumstances. However, this factor does have a bearing on Martin’s good faith in seeking an abatement of his child support.

Martin produced no evidence other than his own testimony to prove his claim that a four-year degree was necessary to secure his future in the optical industry. Thus, Martin’s case rested solely on his credibility as a witness before the trial court. It is the function of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony. In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 912, 466 N.E.2d 925, 930.

Martin finds fault with the trial court’s finding that if Martin’s girlfriend wanted to support him, she should also support his child. While we agree this finding was improper, there were other grounds upon which the trial court’s decision could properly rest. We therefore find that the trial court did not abuse its discretion in denying Martin’s request for an abatement of his child support payments.

Martin’s final claim of error lies in the trial court’s decision to increase his child support payments from $90 to $100 per week. Martin argues that Sharon failed to show any increased need of Nicole and that his income had been reduced due to his leave of absence from his employer. Martin believes the trial court improperly imputed his live-in girlfriend’s income to him by finding that if his girlfriend is willing to support him, she should also support his child. Martin also argues the trial court erred in considering Sharon’s husband’s unemployed status, claiming the employment status of a party’s spouse is not relevant to a child support determination.

Once a court finds that a substantial change in circumstances has been shown, it must determine the amount of increase or decrease in child support by considering the factors set forth in section 505(a)(2) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2)). Those factors include the financial resources and needs of both parents and the standard of living the child would have enjoyed had the marriage not been dissolved. Child support may be increased upon a showing of an increased ability of the noncustodial parent to pay, regardless of whether the needs of the child have increased. (Bussey, 108 Ill. 2d at 296-98, 483 N.E.2d at 1233-34; Wilson v. Wilson (1988), 166 Ill. App. 3d 1035, 1038, 520 N.E.2d 1230, 1232.) Martin admitted that his income had increased since 1989 and, in fact, the record reflects a substantial increase. Having ruled that Martin was not entitled to quit his job and receive an abatement of his child support payments, the trial court was not bound to reward him for his actions by refusing to increase child support because of his unemployment. In addition, we do not find that the trial court imputed Grinestaff’s income to Martin in increasing his child support payments. The court’s comments concerning Grinestaff appeared to refer only to Martin’s petition to abate his child support payments.

The financial status of a divorced parent’s current spouse should not be considered in determining the ability of that parent to fulfill his or her duty of support. (Kessler, 110 Ill. App. 3d at 73, 441 N.E.2d at 1229.) However, this does not prevent the court’s consideration of the income of a parent’s spouse when considering the needs of that parent and his or her family. See In re Marriage of McBride (1988), 166 Ill. App. 3d 504, 519 N.E.2d 1095; Edwards v. Edwards (1970), 125 Ill. App. 2d 91, 259 N.E.2d 820.

The evidence in the instant case showed that Sharon earned $15,000 per year at her place of employment, that her husband had been laid off, and that her husband’s employer had told him it was unlikely he would be recalled to work. The evidence also showed their combined income to be in the neighborhood of $40,000 when they were both working. The court properly considered these factors in assessing the resources and needs of Sharon and her family. These determinations cannot be made in a vacuum, and case law does not require them to be.

We also note that the increase in child support still leaves Martin’s child support payments below the 20% guidelines and that the court did not make any findings to justify this deviation as required by section 505(a)(2). However, since Sharon has not filed a cross-appeal, we may not consider this point. We find no error in the trial court’s decision to increase Martin’s child support payments.

The judgment of the trial court is affirmed.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND JUSTICE GREEN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE JONES, Defendant-Appellant.
    Fourth District
    No. 4—92—0219
    Opinion filed February 11,1993.

      GREEN, J., specially concurring.
    Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of Adams County, defendant was convicted of one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(1)) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(c)(l)(i)). The trial court sentenced defendant to 20 years’ imprisonment for the aggravated criminal sexual assault, to be served consecutively to concurrent four- and seven-year sentences for the convictions of aggravated criminal sexual abuse. Defendant appeals, claiming (1) the trial court erred in allowing a police officer, who had not been qualified as an expert, to testify concerning the behavioral characteristics of child sexual abuse victims; (2) he was denied a fair trial because both the trial court and the prosecutor improperly attempted to define the reasonable doubt standard to the jury; and (3) the prosecutor’s comment diming his opening statement that he was embarrassed by the nature of the case served only to inflame the jury and thereby deprived defendant of a fair trial. We affirm.

In August 1991, defendant was taken into police custody for an unrelated offense. The victim, defendant’s 12-year-old stepdaughter R.M.B., was placed in a foster home because her mother was in St. Louis at the time. R.M.B. met with Terri Allen, an employee of the Illinois Department of Children and Family Services (DCFS), who asked R.M.B. whether defendant had ever touched her. She replied that he did a long time ago but had not done so since then. R.M.B. was then interviewed by Detective Fitch, an investigator with the juvenile division of the Quincy police department.

When Fitch asked R.M.B. whether her stepfather had had any sexual contact with her, she replied that he had not. According to Fitch, she said that in the past she had reported there had been sexual contact, but nothing had been done about it. At the time this interview took place, defendant was being held in police custody in the juvenile office about 30 feet away from R.M.B.

Later that month, R.M.B.’s mother returned, and they lived together in the family home while defendant remained in custody. She spoke again with Terri Allen of DCFS and, this time, told her that defendant had touched her more recently than she had let on earlier, but gave no details of the incident. She repeated this to Detective Fitch and, again, gave no details. She met with Fitch again in late August and, this time, told him that defendant had forced her to perform oral sex and gave some details of the incident. In January 1992, she met with the prosecutor and provided him with a detailed description of the incidents that formed the basis of his convictions in this case.

At trial, R.M.B. testified that, when her stepfather first began abusing her, he threatened to kill her if she ever told anyone about it. Although defendant had never hit her, she had seen him strike her mother and her brother. She stated that she was afraid of him. When asked why she did not tell police about the sexual abuse, she replied that she was scared because she did not know whether he was coming home or not. She thought he might kill her if she told. A few days after the initial interview, she was more willing to speak because she knew he was not coming home and would stay in jail.

Next, the State called Detective Fitch to the stand, but did not submit him as an expert witness. He testified that he had been a police officer for 16 years. For the last 2lz years, he acted in the capacity of an investigator in the juvenile division, where he handled cases where juveniles are victims as well as investigations of abuse. Prior to this, he was in the detective division of the Quincy police department for 2lz years, where they handled juvenile investigations whenever the juvenile officer was busy. During redirect examination, defense counsel objected to any questions which might require Fitch to “generalize” about other cases. A side bar was held out of the hearing of the jury and court reporter. The objection was overruled and the following exchange occurred:

“[State’s Attorney]: Q[.] Detective Fitch, based upon your years of experience as a juvenile officer and then your years with the Detective Division, when you would interview juvenile witnesses, have you found it unusual in your first meeting with an alleged sexual abuse victim for them [sic] to deny that there had been sexual contact?
[Fitch]: A[.] I find that that’s the norm.”

This exchange was emphasized in closing argument, where the prose- j cutor stated:

“You know, you can hope that if something like this happens to a young girl that she will immediately call the police so that intervention can be made and that that type of conduct will stop, but that’s not the way it happens in the real world, sad as it is. Each child copes in his or her own way, and [R.M.B.] had her way of coping. As you know, it is not only not unusual that in initial contacts with law enforcement authorities that a child will not tell of the sexual molestation, but it is the norm.
* * *
*** He was safely locked away, and as [R.M.B] has told you, the fear has dissipated. And given that it is the norm for children under those circumstance[s] to not tell on the first encounter, particularly when the Defendant is there in the same building, particularly when she has been threatened by him and is afraid of him and has seen the Defendant do violence to others in her presence, not contradicted by him in any way, that is easy to understand.”

Defendant claims the trial court erred in allowing the prosecutor to elicit expert testimony from Detective Fitch, who was merely a lay witness. Defendant argues there is no showing on the record that Fitch had the experience or training necessary to qualify him as an expert. Also missing is any indication of the number of sexual abuse cases he had handled upon which he based his opinion. Allowing Fitch to comment on the behavior of child sexual abuse victims, defendant argues, was tantamount to a submission of expert psychological evidence of rape trauma syndrome in children. Defendant claims the harm was compounded because the prosecutor overstated the evidence in his closing argument, using it as though it was expert psychological testimony.

In denying defendant’s post-trial motion, the trial court acknowledged that Fitch was not offered as an expert witness. The trial court found the testimony permissible because “it was on a limited area which would be within the knowledge of an officer of the law experienced in this type of investigation.” The court went further and took judicial notice of the fact that it is common for child sexual abuse victims not to report the incident immediately, stating that it is a “matter within the common knowledge of anybody who works within the system.” The court concluded:

“[S]ince [the testimony] was on a very limited matter, it was not delved into in greater detail nor did he cross over the line from being a police officer to somehow being a hybrid expert on child sexual assault but [the testimony] was limited in its extent. I see no problem at all with that testimony coming in and being allowed and being considered by the jury.”

The doctrine that lay witnesses generally must give only “facts” and not their inferences, conclusions, or opinions has been described as the clumsiest of all the tools furnished the judge for regulating the examination of witnesses. E. Cleary, McCormick on Evidence §11, at 23 (2d ed. 1972).

“A clear line between fact and opinion is impossible to draw. In a sense all testimony to matters of fact is the conclusion of the witness formed from observed phenomena and mental impressions.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §701.1, at 482 (5th ed. 1990).

The latter treatise summarizes the necessary requirements for the admission of opinion evidence. First of all, the witness must lay a foundation establishing personal knowledge of the facts that form the basis of the opinion. Where required, a foundation must also be laid as to the witness’ personal knowledge of facts to which the observed facts are being compared. The opinion must also be one that a person could normally form from observed facts. Finally, testimony of a lay witness in the form of an opinion may be introduced only if helpful to a clear understanding of his testimony or the determination of a fact in issue. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §701.1, at 482-83 (5th ed. 1990).

Wigmore gives assistance in deciding this issue, when the opinion objection is applied to lay witnesses “who concededly have no greater skill than the jury in drawing inferences from the kind of data in question.” (Emphasis in original.) (J. Wigmore, Evidence §1924, at 32 (Chadbourn rev. ed. 1978).) However, the cited section recognizes that it must be possible to provide the “data” to the jurors. Observations of the initial responses of those sexually abused could not be repeated before the jurors, and we cannot expect the jurors to have experienced such observations. Treating Fitch as a “lay witness,” the trial court did not err in allowing him to relate this relevant testimony. Regardless, the testimony might well be termed to be that of an expert. In a separate case, where Fitch was also the witness and where additional foundation was present, we so held. Testimony of a similar nature was at issue, the same type of offense was involved, and the case was tried within two months of the trial in this case. People v. Turner (1993), 241 Ill. App. 3d 236.

Detective Fitch testified to 16 years’ experience as a police officer, the last 21/2 years spent as an investigator in the juvenile division. His personal knowledge of a familiarity with the reactions of juvenile sexual abuse victims was adequately established. His opinion was one that a person could normally form from observed facts. This element is even more firmly established by the fact that Fitch’s limited opinion is, as stated by the trial court, within the common knowledge of anyone who regularly deals with juvenile problems. Finally, the opinion was clearly helpful to an understanding of his own testimony and that of R.M.B. We find no error in allowing the jury to hear Detective Fitch’s opinion.

We agree with defendant that the prosecutor’s statements in closing argument presented the opinion in a somewhat different light. In stating flatly that “it is the norm” for children to initially deny sexual contact, "without reference to the basis of Fitch’s opinion, the prosecutor appeared to be assérting a tenet of behavioral theory. In contrast, Fitch testified regarding concrete facts which he personally observed, not abstract ideas or theories.

Initially we note that defense counsel failed to object during closing argument and in the post-trial motion. Aside from the fact that the objection has not been preserved, we still find no overt attempt on the part of the prosecutor to frame Fitch’s opinion in the guise of scientific theory. Furthermore, the jury had already been informed by R.M.B. that she delayed telling police about the crime because she feared for her safety. Fitch’s opinion that this behavior is typical is neither surprising nor is it novel. Preceded as it was by R.M.B.’s testimony, the opinion adds little to the jury’s understanding of R.M.B.’s motivation underlying her initial reluctance to tell the police. We find no substantial prejudice created by the prosecutor’s encapsulation of Fitch’s testimony.

Next, defendant contends he was denied a fair trial because the trial court and the prosecutor improperly attempted to define the reasonable doubt standard to the jury. Before trial, the court stated to the jury:

“Along the way, you’ll probably be told, perhaps by the state’s attorney, and there’ll be comments about the fact that they don’t have to prove the defendant guilty beyond every possible doubt or every shadow of doubt, whatever that means, but beyond a reasonable doubt.”

In his closing argument, the prosecutor stated:

“Beyond a reasonable doubt does not mean beyond all doubt. It does not mean beyond a shadow of a doubt. It means beyond a reasonable doubt, the same standard in every criminal case in every county in this country.”

No objection was made to either comment, nor was either comment mentioned in the post-trial motion. We find the issue is waived on appeal. (People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742.) Although the comments were improper, we do not believe they deprived defendant of a fair trial so as to invoke the plain error doctrine. The comments were not involved or likely to mislead the jury, nor did the trial court compound the error by giving an improper instruction. People v. Gray (1979), 80 Ill. App. 3d 213, 399 N.E.2d 206.

Finally, defendant contends the prosecutor denied defendant a fair trial by commenting in his opening statement that he was embarrassed by the nature of the case and the graphic images and language that would be presented to the jury. No objection was made at trial, nor was it mentioned in the post-trial motion. We find the issue waived on appeal. Berry, 99 Ill. 2d 499, 460 N.E.2d 742.

In describing the evidence to be heard in a case of this nature, the prosecutor is forced to use language and describe events which many jurors would find offensive. The prosecutor’s remarks seem designed to disassociate himself with the language he is required to use. The plain error doctrine is a limited and narrow exception to the waiver rule. (People v. Pastorino (1982), 91 Ill. 2d 178, 188, 435 N.E.2d 1144, 1149.) We need not invoke the plain error doctrine unless the comments were so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261.

Affirmed.

KNECHT, J., concurs.

JUSTICE GREEN,

specially concurring:

I concur in the decision to affirm and agree that no reversible error resulted from the admission of the testimony of Detective Fitch. However, I would analyze the issue slightly differently than does the majority.

To the extent Fitch’s answer “I find that that’s the norm” meant that on many occasions alleged sexual abuse victims had denied abuse on a first interview with him, the answer was a statement of fact as to what he had heard. Any witness is competent to give such an answer. To the extent that the answer indicated that more often than not this happens when he interviewed such people, the answer would either still be one of fact or, at the most, the opinion which a lay person could give. He would be drawing an inference from his memory that more often than not it happened.

On the other hand, the definition of the word “norm” most nearly descriptive of the phenomena described here is “AVERAGE: as *** [to] a pattern or trait taken to be typical in the behavior of a social group.” (Webster’s Ninth New Collegiate Dictionary 806 (1990).) If Fitch’s answer be taken as a statement that from his experience as an investigator he had learned that those in the field have found that such alleged victims are very likely to deny sexual abuse at the first interview even though the abuse occurred, the answer was an opinion which can only be given by an expert because the opinion would be based upon his training and experience and would be beyond the knowledge of the average person. People v. Free (1983), 94 Ill. 2d 378, 411, 447 N.E.2d 218, 234.

The making of a proper objection is usually necessary to preserve error in the admission of evidence. (Casson v. Nash (1978), 74 Ill. 2d 164, 171, 384 N.E.2d 365, 368.) Unless the grounds for the objection are obvious, the objection must be specific. (Massey v. Farmers’ National Bank (1882), 104 Ill. 327; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.2, at 6 (5th ed. 1990).) The only objection made to the testimony involved here was that it asked the witness to generalize about other cases. No contention has been made that this testimony lacked relevance or materiality. No objection that the question would require the giving of any kind of an opinion was made.

If an objection had been made that the question called for an expert opinion and no foundation had been laid, the prosecutor could have proceeded to lay a foundation for the giving of such an opinion. In any event, some foundation was laid in that Fitch testified as to his experience in handling cases of this nature. Any error in the admission of the testimony did not amount to plain error which would not have been waived by lack of a proper objection.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD W. TURNER, Defendant-Appellant.
    Fourth District
    No. 4—92—0352
    Opinion filed February 11, 1993.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal by defendant Richard Turner from his conviction in the circuit court of Adams County of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(d)) and one count of harmful material (Ill. Rev. Stat. 1991, ch. 38, par. 11— 21(a)). Defendant was sentenced to concurrent terms of 14 years’ imprisonment on the two counts of aggravated criminal sexual abuse and 364 days in the county jail on the count of harmful material. We affirm.

Defendant, 40 years of age at the time of the alleged offenses, was charged by amended information with fondling the breast of S.L. (a 15-year-old girl), and touching her vagina. He was also charged with exhibiting to S.L. photographs of himself in the nude and of a nude female. It was alleged that these incidents took place on December 9,1991.

At the jury trial which concluded on March 13, 1992, S.L. testified that she knew defendant well, had been to his apartment on several prior occasions, and had spoken with him by telephone on numerous occasions. She considered him to be a big brother. On December 9, 1991, at defendant’s request, she went to his apartment about 6:30 p.m. He was alone when she arrived. She and defendant sat together on the couch playing cards. Defendant went to the refrigerator and came back with a beer and a carrot. Defendant told her he wanted to stick the big end of the carrot up her “pussy” and eat it out so he could feel the vibrations. She told him the idea was disgusting. Defendant said it was not disgusting and that a lot of people thought it was “kinky.” S.L. broke the carrot in half and threw one of the pieces across the room. Defendant had talked in her presence on prior occasions about doing that to other people. S.L. was wearing blue jeans and a sweatshirt. Defendant got up to use the bathroom and then got a photo album from a dresser and brought it back to the couch. He had shown her the pictures in this album on prior occasions. The three pictures defendant showed her were of a nude female lying on a couch with one knee up showing her pubic area, of defendant’s ex-wife in her underwear, and of a man’s penis. She could not tell who the man was because the picture did not show his face. Defendant told her he would like to see her in the position of the nude woman on the couch. She told him she would never do that. He then told her he wanted to make love to her and “fuck” her. She told him “no,” and he grabbed her arm with one hand and started fondling her breasts through her shirt with his other hand. Defendant then attempted to stick his fingers up S.L.’s vagina through her jeans. She could feel defendant’s fingers in her vagina. While this was happening, S.L. told defendant to stop and tried to get away from him. Defendant grabbed her arm hard, bruising it, and pulled her back down on the couch. After she continued struggling and screaming for him to stop, defendant let go of her and told her that if she told anyone about what had happened he would kill her. This frightened her. Defendant told her to leave about 8:30 p.m.

Defendant called S.L. the next day and asked her to come to his apartment. She complied with this request because she feared that if she stayed away from him, defendant would think she was going to tell someone what had happened. Defendant accompanied her to a friend’s house. Defendant also called her the next two days, requesting that she come to his apartment. She complied, again because she was afraid not to go. She was there for about 10 minutes and then left to get her friend. Defendant gave her a beer to take to her friend to' persuade the friend to accompany S.L. back to defendant’s apartment. S.L. was in and out of defendant’s apartment three times on that day. The next day defendant again called her and she went to his apartment. She was there with defendant and some of her friends. On the next day, she went to defendant’s apartment even though he did not request her to come. She and a friend stopped by there so she could get cigarettes from defendant. The longest she was at defendant’s apartment by herself after December 9,1991, was 10 minutes.

S.L. had a conversation with Officer Jim Fitch of the Quincy police department on December 10, 1991, at his office. She admitted that he asked her about any sexual contact with defendant and that she had denied anything had occurred because she was afraid of defendant. She also admitted she had lied to a friend, Becky Versimac, about how she received the bruise on her arm. On December 13, 1991, she talked again with Fitch and told him what defendant had done to her. She was in tears and upset at that time. She decided to tell him because she could not handle it any longer.

R.T. Finney of the Quincy police department testified as to a search warrant executed at defendant’s apartment. The officers found the photo album and the three photographs mentioned by S.L. in her testimony. Finney testified that they had identified the headless male in the photograph as being defendant. This conclusion was based on similar photos found in the apartment showing defendant’s face and the unusual placement of certain tattoos observed in photographs of defendant’s groin area in all the photos.

Fitch testified that he had been a police officer for the City of Quincy for 17 years. For the last 21/2 years he had been an investigator assigned to the juvenile division. He handled both juvenile offenders and juvenile victims. He participated in the search of defendant’s apartment. He found a broken carrot in the kitchen trash can, along with other carrots, other food, and beer cans. There was only one broken carrot in the trash. Fitch also testified as to his interviews with S.L. At the first interview on December 10, 1991, she denied any sexual contact with defendant. At the second interview on December 13, 1991, she was upset and crying.

Fitch testified that when he first joined the police force he received training in the area of child sexual abuse victims. For the last 2V2 years he had worked exclusively with juveniles. The majority of the crimes he had investigated during that time were sex crimes. He received ongoing training during that time on a broad range of subjects related to juveniles. He deals with child sexual abuse victims on a weekly basis. He testified that based on his training and experience, it is not unusual, and it is even normal, for children who are victims of sexual abuse to deny, at the first interview, that there has been any sexual contact or to tell only a portion of the story. Fitch also testified that S.L. told him she had also denied to one of her friends that sexual contact had occurred.

The parties stipulated to the testimony of Becky Versimac, a good friend of S.L., that S.L. had told Versimac that she received the bruise on her arm when a woman grabbed her on December 10, 1991.

Paula Thomas testified for defendant. She testified that she had been a friend of defendant’s for 11 years. She said she and defendant were together at her house in Quincy on December 9, 1991, from about 4 p.m. until about 8:30 p.m. They were watching movies, eating pizza, and drinking soda. She remembers the time because her daughter was dropped off at her house about a half hour after defendant left. Thomas admitted that her daughter is dropped off at her house about five or six times each week. When defendant left, she assumed he took a cab home. Thomas and defendant were together the night before he was arrested for tampering with a car. Her mother told her about defendant’s arrest for this tampering. Her mother had been told this by someone who had either heard it on the radio or read it in the newspaper. Thomas was interviewed by Officer Fitch. She denied it when the prosecutor asked her if Fitch had told her that defendant’s arrest for tampering had not been in the newspaper or on the radio and, when told this, she said the way she remembered the date was by talking with defendant several times since his arrest for the instant offenses. Thomas then admitted that this was in fact the way in which she was able to remember the date defendant was at her house.

Thomas testified that defendant told her that he had taken a cab to her house and he was taking a cab home, but she did not know whether he did. She denied telling Fitch that defendant definitely had taken a cab home between 8 and 8:30 p.m. She admitted Fitch told her in their interview that there were no cab company records showing defendant was picked up at her house or taken to his house on that evening. She also admitted talking to defendant by telephone since the interview with Fitch. She claimed she had difficulty communicating with Fitch and that he was trying to trip her up.

On rebuttal, Fitch testified that Thomas had led him to believe that her mother had told her of defendant’s tampering arrest on December 10, 1991, and that when Fitch informed Thomas that defendant would not have been arrested that day, she said she was not sure. She then told Fitch that she had had several conversations with defendant and this was how she had remembered the date. Thomas also told him that she was “100 percent sure” that a cab had pulled up to her house and picked up defendant that evening when he left.

Larry Clair, dispatcher for Deluxe Cab Company, testified there is only one cab company in Quincy and that he and the other dispatchers are required by city ordinance to record all calls they receive from customers. He stated the cab company records do not indicate anyone was picked up or dropped off either at Thomas’ house or at defendant’s house between 3:09 and 11:17 p.m. on December 9,1991.

The parties stipulated that on December 10, 1991, defendant was arrested for an offense that had nothing to do with the issues before the jury in the instant case. This was the tampering incident mentioned above.

The jury convicted defendant on all three counts, and the trial court entered judgment on the verdict.

Defendant was sentenced on April 28, 1992. We note that defendant filed no post-trial motion.

Defendant’s first argument on appeal is that he was not proved guilty beyond a reasonable doubt where S.L.’s statements and behavior following the alleged incident were inconsistent with her later claim that he had assaulted her. We disagree.

A criminal conviction will not be reversed on appeal unless the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) The relevant question is not whether this court believes that defendant is guilty beyond a reasonable doubt but, rather, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

While S.L.’s behavior and her denial about the incident to Officer Fitch might appear to some to be inconsistent with her later claim, she testified that defendant had threatened to kill her if she told anyone about the incident and that she was frightened of him. She admitted she had gone to defendant’s house after the alleged incident. She testified the reason for this was that she was afraid defendant would think she intended to tell someone about the incident. S.L. testified that prior to the incident she and defendant had been good friends, that she had trusted him and looked upon him as a brother. Her testimony about her motives for acting as she did was not inherently unbelievable. S.L. also admitted that she had lied to Fitch the first time she spoke with him on December 10, 1991, but stated the reason for this was defendant’s threat. She testified that she finally went back to Fitch on December 13, 1991, because she could no longer keep the incident to herself. In addition, the prosecutor cast doubt on defendant’s alibi defense through his cross-examination of Paula Thomas and through the testimony of rebuttal witnesses Fitch and Clair.

The credibility of the "witnesses and the weight to be given their testimony are matters that are within the exclusive province of the jury. A reviewing court may not substitute its judgment for that of the jury in such matters. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320; People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331, 334.

Defendant also complains that there was no physical evidence to corroborate S.L.’s testimony. The short answer to this argument is that such corroboration was not required. In People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690, our supreme court laid to rest the outmoded standard of review which had held that testimony of a victim of a sexual offense must be either clear and convincing or substantially corroborated in order to sustain a sex offense conviction, where the sufficiency of the evidence was challenged on appeal. The court held the reasonable doubt test articulated in Collins should govern on review of a defendant’s challenge to the sufficiency of the evidence in a sex offense case. Schott, 145 Ill. 2d at 203, 582 N.E.2d at 697.

Defendant’s last argument asserts Officer Fitch was not an expert and the trial court erred in allowing him to testify that child victims of sexual offenses normally deny initially that an offense has occurred. Defendant believes this error was compounded when the prosecutor argued in closing that S.L.’s initial denial that the offense had occurred was consistent with normal behavior of child victims of sexual abuse.

Defendant has waived these arguments. Failure to raise an issue in a written motion for a new trial results in waiver of that issue on appeal. (People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742, 744; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129.) Defendant here failed to file such a motion. In addition, his counsel did not object to the prosecutor’s statement in closing argument. Both an objection and a written post-trial motion raising the issue objected to are required to preserve the issue for review. Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.

Nor do we find that plain error occurred. This doctrine is a narrow and limited exception to the waiver rule. (People v. Pastorino (1982), 91 Ill. 2d 178, 188, 435 N.E.2d 1144, 1149; People v. Gilman (1983) , 113 Ill. App. 3d 73, 75, 446 N.E.2d 595, 596.) To be plain error, the substantial rights of the defendant must be affected or the evidence must be closely balanced. (People v. Griffiths (1983), 112 Ill. App. 3d 322, 326, 445 N.E.2d 521, 526; People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856, 858.) Here, defendant has pointed to no abridgment of any substantial right. Moreover, after reviewing the entire record, we do not find the evidence closely balanced. We therefore find that defendant has waived these issues for our review.

However, even were we to find that review of these issues had not been waived, we would find no error in either instance.

Defendant initially objected to Fitch’s testimony on the basis that he was not qualified to give an opinion on the behavior of child sexual abuse victims. The trial court sustained this objection, and the prosecutor then proceeded to elicit testimony about Fitch’s background, training, and experience as noted above.

Fitch then testified as follows regarding the behavior of child victims of sexual abuse:

“Q[.] [Prosecutor:] Detective Fitch, again, based on your years of experience in this area, the training you have had, and your own personal experience with these kind of kids, is there anything unusual in your first contact with them for them to deny that there has been sexual contact?
[A.] [Defense counsel]: The same objection as before, Judge.
THE COURT: All right. I will overrule the objection.
[Q.] [Prosecutor]: Is there anything unusual about that?
A[.] [Fitch:] Children who are victims of sexual abuse deal with it differently than adults do. Many times they are embarrassed. They don’t understand the same, which we do, the sexual abuse, the sex crimes. Because of that, they are many times hesitant, reluctant or too confused to tell exactly what did go on.
Q[.] So, it is unusual for them to deny on that first contact?
A[.] No, it is not. I have testified to that in other cases that it is not unusual.
Q[.] Does it approach the norm?
A[.] I would say it is normal that at the first interview they either deny or don’t tell everything that they know.”

Effective January 1, 1989, Illinois law allows admission, as evidence, of the testimony of an expert qualified by the court relating to any recognized and accepted form of post-traumatic-stress syndrome. (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 7.2.) Prior law required the expert to be a behavioral psychologist, psychiatrist, or physician. (See Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2.) The amendment eliminated this requirement. As this court has previously noted, the legislature, in amending the statute, recognized that persons other than those in the medical profession may provide reliable testimony on post-traumatic-stress syndrome. People v. Wasson (1991), 211 Ill. App. 3d 264, 271, 569 N.E.2d 1321, 1326.

Defendant cites cases dealing with post-traumatic-stress syndrome and rape-trauma syndrome (RTS) (one form of post-traumatic-stress syndrome) and insists that Officer Fitch’s testimony was in fact expert testimony on RTS. We disagree.

RTS is generally accepted to be a common reaction to a sexual assault. That syndrome includes a broad range of physical, psychological, and emotional reactions to such an assault. (People v. Server (1986), 148 Ill. App. 3d 888, 897-98, 499 N.E.2d 1019, 1026.) However, Officer Fitch did not testify concerning any complex psychological theories or models. He merely stated, in simple terms, his opinion as to the tendency of child sexual abuse victims to initially deny that they have been sexually abused. In that sense, this case is similar to People v. Wilder (1986), 146 Ill. App. 3d 586, 496 N.E.2d 1182. In Wilder, a child protective investigator from the Illinois Department of Children and Family Services was allowed to testify as an expert to characteristics most often observed in families where child sexual abuse typically occurs. The investigator testified he had investigated incidents of alleged child sexual abuse in more than 300 families. He based his opinion on a one-hour interview with the victim and her mother and an interview with defendant. On appeal after conviction, defendant argued the investigator was not qualified to give an opinion as to these characteristics. This court rejected the contention, noting the investigator did not testify to complex or highly technical matters, but rather simply stated the characteristics of families where child sexual abuse typically occurs. The basis for his testimony was his experience with such families. Wilder, 146 Ill. App. 3d at 590, 496 N.E.2d at 1184-85.

In the instant case, Fitch merely stated that it is not unusual, or it is normal, for children who have experienced sexual abuse to initially deny that abuse when confronted. It was clear that he based his opinion on his experiences with child sexual abuse victims. His experience with such victims extended over the prior 21k years during which he worked exclusively with such victims and with juvenile sex crime perpetrators. He also had training in this area within the police department. It was not error for the trial court to find that Fitch was qualified to give such an opinion.

An expert may be qualified on the basis of experience alone. (People v. Douglas (1989), 183 Ill. App. 3d 241, 254, 538 N.E.2d 1335, 1343.) A witness may be allowed to testify as an expert if his experience and qualifications give him knowledge not common to lay persons and where such testimony will aid the trier of fact in reaching a conclusion. (People v. Jordan (1984), 103 Ill. 2d 192, 208, 469 N.E.2d 569, 576.) This court has previously held that behavior of children who have been sexually abused is not within the knowledge of ordinary lay persons and that such information would be of benefit to a jury in a child sexual abuse case. (People v. Coleman (1990), 205 Ill. App. 3d 567, 585, 563 N.E.2d 1010, 1021, appeal denied (1991), 136 Ill. 2d 547, 567 N.E.2d 335.) The determination of whether a witness is qualified to testify as an expert is within the trial court’s discretion, and its ruling will not be disturbed absent an abuse of that discretion. (People v. Bradley (1988), 172 Ill. App. 3d 545, 550, 526 N.E.2d 916, 920.) We find no abuse of discretion in Fitch’s testimony in the instant case. We note that Fitch was also a witness to the victim’s statements in People v. Jones (1993), 241 Ill. App. 3d 228, and there gave similar testimony regarding victim’s initial denials. In Jones, unlike here, Fitch was not qualified as an expert, but the evidence was admitted even though he testified as a lay witness. Since there was no error in the admission of this testimony, there was no error in the prosecutor’s comments on that evidence in his closing argument.

Defendant’s conviction and sentence are therefore affirmed.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD A. BRIM, Defendant-Appellant.
    Fourth District
    No. 4—92—0297
    Opinion filed February 11,1993.

      Richard A. Brim, of Lincoln, appellant pro se.

    No brief filed for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Richard Brim, appeals from the Cass County circuit court’s dismissal of his post-conviction petition filed pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, pars. 122 — 1 through 122 — 8). He argues: (1) the trial judge abused his discretion by refusing to appoint new post-conviction counsel because appointed counsel had a conflict of interest; (2) his due process protections were violated by the trial judge’s denial of his request for a new judge to consider his post-conviction claims; and (3) because the constitutional claims he alleged presented the “gist” of a constitutional violation he should have been granted a full hearing. Defendant’s request for a substitution of judge should have been considered by a judge not named in the motion. We reverse.

I. Facts

On October 24, 1990, defendant entered a negotiated guilty plea to one count of unlawful use of weapons by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1.1) and unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, par. 56V2, par. 1401). As part of the plea agreement, defendant was sentenced to a five-year term of imprisonment for the weapons violation and a concurrent 12-year term for the controlled substance violation.

In November 1990, defendant filed a motion to vacate his guilty plea. In December 1990, he sought to amend that motion. Both the original and amended motions were based upon an alleged involuntariness of his guilty plea. The trial judge appointed a public defender to represent defendant at this hearing.

In January 1991, defendant filed a motion to dismiss the original request his guilty plea be vacated. Thereafter, defendant was returned for a hearing in open court where he again sought dismissal of his motion and amended motion to vacate his guilty plea.

In June 1991, defendant filed his petition for post-conviction relief alleging his plea had been involuntary because he had not been admonished he would receive a period of mandatory supervised release in addition to his negotiated sentence. He also alleged ineffective assistance of counsel by various attorneys whom he had retained during the earlier proceedings for their alleged failure to (1) challenge the search and seizure which led to charges against defendant and (2) to investigate or interview witnesses. Defendant finally alleged one of his attorneys had a conflict of interest because he was also representing a codefendant who had made incriminating statements against defendant.

Defendant also filed a motion for substitution of judge to consider his post-conviction petition, and sought counsel other than the public defender to represent him in these later proceedings. These requests were denied.

The trial judge dismissed as patently without merit (see Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(aX2)) all of defendant’s allegations except the ineffective assistance claim based on counsel’s failure to challenge the search and seizure or interview relevant witnesses. The judge concluded defendant had a right to a hearing on these issues.

Defendant’s motion to reconsider the trial judge’s ruling was denied. The trial judge again appointed the previously appointed public defender to represent defendant on the remaining issues. Following a hearing on the State’s motion to dismiss the remaining post-conviction allegations, the trial judge dismissed the additional claims.

II. Analysis

A. State’s Failure to File Brief

The State has filed no brief on appeal. Courts of review no longer reverse an appeal pro forma for failure of the appellee to file a brief. Instead, they review the merits of the arguments if the record is simple and the alleged errors can be easily decided. When the issues cannot be easily evaluated, a court of review should not act as an advocate and search the record to sustain the trial court’s ruling. A court of review should reverse when defendant’s brief demonstrates prima facie evidence of reversible error and the record supports the allegations. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495; People v. Logan (1976), 39 Ill. App. 3d 656, 659, 350 N.E.2d 40, 42.

We will not rule on the merits of defendant’s post-conviction petition claims because the record is not simple and the alleged errors cannot be easily decided without an advocate presenting the State’s view. However, defendant’s brief and the record present prima facie evidence of error by the trial judge in ruling on defendant’s motion for substitution of judge.

B. Ruling on Different Judge

Defendant argues the trial judge erred by failing to determine whether a different judge should rule on his post-conviction petition. Defendant also contends a different judge should have been appointed to hear his post-conviction petition because threats made by that judge improperly induced him to plead guilty. Defendant’s motion for substitution of judge included an allegation that before defendant entered his guilty plea, this trial judge had indicated if defendant proceeded to trial, the judge would impose a minimum 20-year sentence. This threat, according to defendant’s motion, improperly induced him to plead guilty to agree to the negotiated pleas for which he would receive 5- and 12-year concurrent prison terms.

Defendant’s affidavits attached to his motion stated that at a preliminary conference, at which defendant was not present, the trial judge informed defendant’s attorney if defendant did not plead guilty defendant would be sentenced to at least 20 years. Defendant’s attorney communicated these remarks to defendant. Defendant submitted an affidavit by Elizabeth G. Skaggs and an affidavit by defendant’s son, both stating they heard defense counsel tell defendant about the trial judge’s comments.

In denying defendant’s request for a different judge to consider his post-conviction petition, the trial judge reasoned his testimony would not be required by defendant because only defense counsel spoke with defendant regarding the alleged comments at the pretrial conference. The judge also stated in his order the allegations of such a conversation were patently false.

There is no automatic right to a judge other than the trial judge for post-conviction proceedings. Moreover, the judge who made the initial determination should also hear these proceedings unless the defendant proffers facts to show that judge would be prejudiced. People v. House (1990), 202 Ill. App. 3d 893, 910, 560 N.E.2d 1224, 1235-36; People v. Neal (1984), 123 Ill. App. 3d 148, 152, 462 N.E.2d 814, 817.

Pursuant to section 114 — 5(d) of the Code of Criminal Procedure of 1963 (Code), a party seeking substitution of judge based on prejudice must allege such and provide affidavits. (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 5(d); see People ex rel. Baricevic v. Wharton (1990), 136 Ill. 2d 423, 439, 556 N.E.2d 253, 260.) Defendant’s affidavits sufficiently alleged the trial judge was prejudiced. The trial judge erred by concluding he could dismiss defendant’s motion for substitution of judge because he was not a necessary witness to the allegations and because the allegations were untrue.

Irrespective of whether the trial judge would be a necessary witness to rule on defendant’s allegations related to the conversation defendant allegedly had with his attorney, the trial judge against whom the motion is filed should not assess the truthfulness of the allegations. (See Wharton, 136 Ill. 2d at 431, 556 N.E.2d at 256.) Section 114 — 5(d) of the Code expressly provides a judge other than the one against whom the allegation is made should rule on the motion. (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 5(d); see People v. Edwards (1982), 106 Ill. App. 3d 918, 923, 436 N.E.2d 727, 730-31.) If a motion for substitution of judge is improperly denied, all subsequent action by the trial judge is void. People v. Banks (1991), 213 Ill. App. 3d 205, 213, 571 N.E.2d 935, 940.

The trial judge abused his discretion by ruling on defendant’s motion for substitution of judge when the motion sufficiently indicated the judge could be prejudiced and defendant’s affidavits attached to the motion supported this allegation. We do not suggest the defendant’s allegations of prejudice are true. We rule only that a different judge must hear defendant’s allegations and decide whether the initial trial judge should be permitted to consider defendant’s post-conviction proceedings. The trial judge’s dismissal of defendant’s post-conviction petition is void and must be reevaluated on remand.

III. Conclusion

By failing to file an appellate brief, the State’s Attorney in this case has not fully represented his constituency. We reverse because a different judge should have been assigned to evaluate defendant’s allegations of prejudice.

Reversed and remanded.

LUND and GREEN, JJ., concur.


author: JUSTICE GREEN JUSTICE COOK,

text:
    ROBERT O. BOGUE, Plaintiff-Appellee, v. GREG SIZEMORE, Defendant-Appellant.
    Fourth District
    No. 4—92—0457
    Opinion filed February 18,1993.
    COOK, J., dissenting.
    Dole & Crispin, of Paris (Peter T. Dole, of counsel), for appellant.
    Massey, Anderson & Gibson, of Paris (E. Robert Anderson, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff Robert O. Bogue (Robert), an excavation subcontractor, filed a small claims complaint against defendant Greg Sizemore (Size-more), seeking to recover on an alleged contract to perform excavation services as a subcontractor to Sizemore on a contract with a third party. Following a bench trial in the circuit court of Edgar County, that court entered judgment in favor of Robert and against Sizemore in the sum of $2,002.81 and costs. Sizemore appeals and we affirm.

The parties’ dispute centers on a written document signed by Sizemore, whereby Robert was to perform excavation work for Size-more for $2,700, in preparation for a commercial telephone system to be installed by Sizemore for Bredeman Ford, a car dealership in the Chicago area. Subsequent to entering into the contract with Bogue, Sizemore, however, was not awarded the contract by Bredeman Ford, and Robert, therefore, never performed the excavation work. In the trial court, a dispute arose as to whether Sizemore or the firm for which he was vice-president was the proper defendant. On appeal, Sizemore does not dispute that he was the proper party defendant. The dispute concerns whether Sizemore was contractually bound under the written document to pay Robert for the described work, as the court found, or whether any obligation of Sizemore to pay Robert for the work was at most conditioned upon Sizemore obtaining the contract to do the work for Bredeman Ford, as Sizemore contended.

The record does not contain a transcript of the evidence at the bench trial. However, a document is provided in the record, designated “Report of Proceedings,” but in the nature of a bystander’s report which was approved by the trial judge. It states that Robert testified as follows: (1) he owned a second business engaging in trenching and backhoe work as a contractor; (2) he previously worked for Sizemore as an operations manager at Sizemore’s prior communications business; (3) his brother, Ross Bogue (Ross), is part owner of Sizemore’s current communications business; (4) in November 1990 Ross called him concerning the potential subcontracting opportunity at Bredeman Ford; (5) the job was to be done independent of the communications business; (6) Sizemore subsequently discussed the job with him indicating it “would be a rush job which needed to be done immediately over the weekend of November 30 and December 1, 1990”; (7) the job consisted of “trenching and boring under driveways to lay cable to connect two automobile dealerships”; (8) he had previously done subcontract work for his brother and Sizemore personally, and for their communications business; (9) usually he would inspect the site and give his brother or Sizemore a “quote” on the trenching work, and they would use that bid in their bid for the overall contract; and (10) generally his brother or Sizemore would contact him for excavation bids.

Robert further testified that (1) prior to the weekend he was to begin work he sent a proposed contract by “fax machine” to Sizemore because “he would not agree to leave Paris or perform any work until he had received a signed contract” from Sizemore; (2) on November 29, 1990, the day before the job was scheduled to begin, he received by “fax machine” a copy of his proposed contract signed by Sizemore; (3) at 3:30 p.m. on November 29, 1990, just prior to receiving the signed contract, he received a call from his brother and Sizemore informing him the job was delayed for a week but “still on”; (4) he was told that the job was delayed because of a problem with obtaining the cable; (5) Sizemore agreed to pay his additional expenses due to the delay; (6) the delay continued until January 1991, when he was told that “the contract had died”; and (7) Sizemore told him “the contract would not be completed.”

Sizemore did not testify at the hearing; however, Robert’s brother, Ross, testified for the defense as follows: (1) in early 1990, Sizemore’s firm was invited by Bredeman Ford to submit a bid on an “integrated communications and computer system to be installed between two automobile dealerships owned by Bredeman Ford”; (2) he contacted Robert “so that he could look at the trenching work to be done as part of the general contract”; (3) he received a quote from Robert for the excavation work; (4) he used Robert’s quote in his bid for the general contract; (5) the next day after receiving the subcontract quote from Robert, Sizemore’s firm did not get the Bredeman Ford contract; (6) they continued to try and secure the Bredeman Ford contract for the next month to six weeks; (7) during that time they advised Robert they were trying to secure the contract, but had not yet been successful; and (8) he told Robert “there was no contract but they still had hopes of getting the contract as it had not been given to any other contractor.”

Ross further testified that the “quotation” signed by Sizemore was merely for internal use in the business, and that they use the “quotations in agreements with subcontractors to lock in subcontractor quotes prior to making general quotes to a perspective customer.” Ross denied that the Bredeman Ford job was independent of Size-more’s firm, and he denied ever telling Bogue that the Bredeman Ford contract was a “special deal not involving the corporation.” Finally, Ross testified that it was their practice to sign subcontract quotes to “indicate that the complete job was as described and to lock in the subcontract at the quoted price.”

The evidence included the written document prepared by Robert and signed by Sizemore, which was transmitted to Robert by fax machine on November 29, 1990, after Sizemore had informed Robert of a delay in the Bredeman Ford project. The document was on a form which had Robert’s name and company name printed on top, along with a listing of the various types of work which Robert did, including trenching and mechanical service, which had been circled. The form also had “Estimate/Invoice No.” printed on top. Handwritten on the form were the names of Ross Bogue and Sizemore, their company name, and a description of Robert’s work to be done for the Bredeman Ford project for $2,700. In small print were the “Conditions of Contract,” which, among other things, provided for progress payments “upon receipt of invoice.” The agreement was not expressly conditioned on Sizemore being awarded the Bredeman Ford contract. Sizemore’s signature appears on a line near the bottom of the document and under that line a statement was printed in the following words: “Signature indicates the price stated above is agreeable. Signee promises to pay for the above described work.”

On appeal, Sizemore does not dispute the court’s finding that the written document he signed was a binding contract. Rather, Size-more claims that the agreement was a binding bilateral contract conditioned on his being awarded the Bredeman Ford contract. Although the document did not expressly contain this condition, Sizemore claims that the condition should be implied. Sizemore bases his contention on a theory in construction contract law which purportedly indicates that bilateral contracts arising from bidding between a subcontractor and a general contractor are generally, as a matter of law, impliedly conditioned on the general contractor receiving the overall contract. The contract is conditional because the parties allegedly do not know at the time of contracting whether the general contractor will get the overall contract. (See generally Glosen & Weiland, Competitive Bidding and Contract Formation in the Construction Industry, in Contracts and Sales of Goods ch. 17, §§17.12, 17.13 (Ill. Inst, for Cont. Legal Educ. 1990) (an analysis of the possible implications of James Baird Co. v. Gimbel Brothers (2d Cir. 1933), 64 F.2d 344, 346; Loranger Construction Corp. v. E.F. Hauserman Co. (1978), 376 Mass. 757, 384 N.E.2d 176).) In addition, Sizemore contends that the parties’ past conduct comports with the bidding process in the construction industry and, therefore, warrants application of the condition even if such a condition was not expressly stated in the contract.

We conclude that even if a general rule exists where a condition that the general contractor receive the overall contract can be implied when the general contractor and subcontractor enter into a bilateral contract at the bidding stage of the overall contract, the trial court could properly conclude such was not the intention of the parties here. The trial court found that on the day Robert was to leave for the Bredeman Ford project, Robert had a verbal confirmation from Sizemore that he was to start the job. At this time Robert insisted upon a written contract and Sizemore complied.

The parties do not dispute that originally an oral agreement was made that on the weekend of November 30 and December 1, 1990, Robert was to do trenching and boring work at the jobsite and that Robert was to make definite preparations to do the work. Clearly the court could properly find that such an agreement was a bilateral contract which, unlike others the parties had entered into, was not conditioned upon Sizemore receiving a contract to do the job. The fact that, shortly before Robert received the faxed signed document, he was informed the work would be delayed for another week did not require a determination that the agreement then became contingent upon Sizemore obtaining the contract to do the work. Robert testified that he was told that the reason for the delay was because of the lack of cable. The court could properly have determined that when the faxed signed agreement was accepted by Robert, no representation had been made to him that the agreement was conditioned upon Size-more receiving the contract and that no such condition should be implied from the circumstances.

Sizemore claims that the parties’ past dealings were typical of the construction industry and Robert failed to show a departure in the instant case from the parties’ prior dealings. Sizemore notes that Robert failed to testify that in any of the parties’ other past dealings there ever was an express condition that the work was contingent on getting the overall contract, yet there was no evidence Robert ever got paid for a job where his bid was used in preparation of the general contract and the general contract was never received.

The trial court found that in the past Ross would call Robert when there was a prospective contract and Robert would look at the job and give Ross a quote. Robert’s quotes would be used in the bid for the overall contract, but Robert did not always get the subcontracting job. Ross and Sizemore would get approximately half the contracts for which they would submit a bid. However, despite the pattern of past dealings between the parties, no evidence was introduced of a document like the one here being signed by Sizemore nor was any evidence presented of prior actions by Robert, similar to those here, by which he requested assurance of payment before proceeding.

The determination of the circuit court was not contrary to the manifest weight of the evidence and was in accordance with principles of contract law. Accordingly, we affirm.

Affirmed.

STEIGMANN, P.J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent.

In traditional contract terms a subcontractor’s quote to a general contractor is only an offer, which the subcontractor is free to withdraw at any time before the general contractor accepts it. The subcontractor may accordingly withdraw the offer after the general contractor has used it to compute the bid on the prime contract, and even after the prime contract has been awarded. Likewise, the general contractor has no obligation to accept the subcontractor’s offer, even if the general contractor is awarded the prime contract. Subcontractors may renege on their quotes; general contractors, with the leverage of the award of the prime contract and the subcontractor’s quote in their pocket, may shop around for lower subcontract bids, or apply pressure to the bidding subcontractor to reduce his bid (all with no benefit but possible detriment to the owner).

This situation is an undesirable one for the parties involved, and for the public at large, who ultimately bear the cost of unfair contract bidding. (See Glosen & Weiland, Competitive Bidding and Contract Formation in the Construction Industry, in Contracts and Sales of Goods ch. 17, §17.9 (Ill. Inst, for Cont. Legal Educ. 1990) (hereinafter Glosen & Weiland).) The Illinois cases have given the general contractor protection by the doctrine of promissory estoppel: a promise unsupported by consideration may be binding if the promisee reasonably relied upon it to his substantial detriment. (S.M. Wilson & Co. v. Prepaid Concrete Co. (1974), 23 Ill. App. 3d 137, 318 N.E.2d 722; Vincent DiVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325, 534 N.E.2d 575; Bank of Marion v. Robert “Chick” Fritz, Inc. (1974), 57 Ill. 2d 120, 124, 311 N.E.2d 138, 140.) As applied in these cases promissory estoppel protects the general contractor but not the subcontractor.

It is possible to protect both parties by the execution of a bilateral contract following the subcontractor’s quote. The contract would be conditional because there would be no binding obligation on either party unless the general contractor were awarded the prime contract. “This condition is so obvious and basic in the construction industry setting that it should be implied from the circumstances even if the parties did not expressly so state in the course of their [negotiation].” (Glosen & Weiland, §17.13, at 17 — 17.) A written agreement absolute on its face may be shown to be subject to an unwritten condition precedent. See Heavy Grady & Crouch Realtors v. Hall (1982), 110 Ill. App. 3d 325, 329, 442 N.E.2d 307, 310; Althoff Industries, Inc. v. Elgin Medical Center, Inc. (1981), 95 Ill. App. 3d 517, 521, 420 N.E.2d 800, 803; Restatement (Second) of Contracts §217 (1981).

The parties to a subcontract can agree that it will be binding even if the general contractor is not awarded the prime contract. Such an agreement would be so unusual, however, that a court should not find one to exist without clear evidence. Such a contract would, in essence, involve a penalty as the general contractor would be required to pay for work which was not done, from funds which he did not receive. If a contract requires payment to a subcontractor who does not do the work, the contract would logically be expected to set out a formula specifying how the payment would be calculated. There is no language in the simple single-page invoice-form contract here which would indicate that defendant’s obligation is unconditional. Nor is there any testimony shown in the bystander’s report which would support an unconditional contract. The only expression of plaintiff’s intent is that “[p]laintiff testified that he would not agree to leave Paris or to perform any work until he had received a signed agreement from [defendant].” The majority opinion states that, despite the past dealings between the parties, no evidence was introduced of a document like the one here being signed by defendant. That is true enough, but what does the existence of the document (as opposed to its language) suggest? Was plaintiff afraid he would do the work and not get paid? Was he afraid he would arrive at the jobsite and there would be a delay? Was he afraid defendant would choose another subcontractor after the prime contract was let? The record suggests all those concerns, but none of them are inconsistent with a conditional subcontract.

It may be plaintiff’s argument that a representation had been made to him, before defendant executed the subcontract, that the prime contract had been awarded; therefore, the subcontract had to be unconditional. Again, the bystander’s report contains little support for such an argument. It is clear defendant was never awarded the prime contract. Plaintiff testified that defendant “never told him” that the contract was contingent on acceptance by Bredeman Ford of the prime contract. Plaintiff, however, knew that his contract was a subcontract. Plaintiff could not justifiably equate (1) never being told the prime contract had to be accepted, with (2) the fact the prime contract had been accepted. The statements made after the subcontract was executed are consistent with waiting for an award of the prime contract: “the job start was put off and delayed for a week,” “the job contract was being delayed further.” Even the testimony “that a question on cable was the cause of the delay” is not inconsistent with waiting for the award of the prime contract. Defendant’s witness, Ross Bogue, clearly testified plaintiff was told the prime contract had not been awarded. Plaintiff’s vague testimony cannot be read to contradict Ross’ testimony, especially in light of the strong presumption favoring a conditional contract.

I would reverse the appealed judgment.