author: JUSTICE DUNN

text:
    WALID HINDO, Plaintiff-Appellant, v. UNIVERSITY OF HEALTH SCIENCES/CHICAGO MEDICAL SCHOOL et al., Defendants-Appellees.
    Second District
    No. 2—92—0019
    Opinion filed November 24, 1992.

      Walid A. Hindo, of Northbrook, appellant pro se.

    Marjorie S. Jacobson and Deborah M. Neyens, both of Sonnenschein, Nath & Rosenthal, of Chicago (Susan M. Benton-Powers, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Walid Hindo, M.D., filed a four-count complaint against defendants, University of Health Sciences/Chicago Medical School (University), Dr. Myron Winick and Dr. Marshall Falk. In count I, plaintiff alleged defendants discharged plaintiff from his position as chairman of the department of radiology at the University in retaliation for reporting a suspected fraud against the Veterans Affairs Medical Center (VAMC) by University employees. In counts II and IV, plaintiff alleged that the University and Drs. Winick and Falk, respectively, intentionally interfered with plaintiff’s contract of employment with the University, causing him to be discharged. In count III, plaintiff alleged defendants Dr. Winick and the University intentionally interfered with plaintiff’s contract of employment with the VAMC, causing him to be discharged. The trial court granted summary judgment in favor of defendants on all counts. Plaintiff timely appeals.

Plaintiff is a physician and a radiologist. Defendant University is a not-for-profit medical school. Defendant Dr. Marshall Falk was at all relevant times the dean and vice-president of the University. Dr. Myron Winick was the president of the University at all relevant times subsequent to January 1,1990.

Plaintiff was hired as an associate professor by the University in October 1975. In 1981, he was promoted to full professor with tenure, a position he still holds today. The University is affiliated with the VAMC. University residents receive training at the VAMC, and certain administrative, medical and teaching personnel hold positions at both the University and the VAMC.

In October 1981, Dr. Falk appointed plaintiff chairman of the department of radiology. Plaintiff received an administrative stipend of $9,500 per year, in addition to his faculty salary. In 1983, plaintiff was appointed to the additional position of chief of radiology service at the VAMC.

Plaintiff was on sabbatical from both the University and the VAMC during 1989. On September 28, 1989, plaintiff met with Dr. Falk to discuss a “lateral career move” with the University. Plaintiff expressed a desire to have his salary increased and to develop certain projects at the University which he began while on sabbatical. In particular, plaintiff discussed his desire to pursue the creation of an applied imaging center at the University. At his deposition, plaintiff defined “lateral career move” as moving out of the chairmanship and into the imaging center. Plaintiff confirmed his intent to pursue this project in a letter to Dr. Falk dated November 17,1989.

On January 24, 1990, upon his return from sabbatical, plaintiff submitted a proposal to Dr. Falk regarding the projects they discussed. Plaintiff proposed that from January 1, 1990, through August 31, 1990, he would receive an annual salary of $175,000, and he would continue as chairman but announce his resignation “whenever the University wishes.” Also in that time period, he would resign as chief of radiology service at the "VAMC. From September 1, 1990, on, plaintiff proposed an annual salary of $87,500, which would represent 50% of his former salary. His duties would include both teaching and research projects, 50% of his time to be devoted to each.

On February 7, 1990, plaintiff met with Dr. Winick to discuss his future plans. They discussed plaintiff’s desire to pursue certain projects and raising plaintiff’s faculty salary from $51,120 a year to $72,000 a year. Dr. Winick suggested plaintiff submit a written proposal for the applied imaging center and advised him that they would need the approval of the administration to implement the project. After that meeting, a letter was prepared by Dr. Winick’s secretary and signed by the plaintiff which confirmed the substance of the meeting. The letter was addressed to Dr. Winick and provided:

“I would like to be relieved of my duties as Chairman of the Department of Radiology effective August 1, 1990, so that I can devote more time to academic interests. At that time, I will become a full time member of the faculty of UHS/The Chicago Medical School, devoting fifty percent of my time to research and fifty percent of my time for teaching and special projects to be developed between you and myself.
It is understood that I will be paid $72,000 per year, with the appropriate increases. With this letter, I am going to submit my resignation from the North Chicago Veterans Administration Medical Center effective August 1, 1990. In the interim, I will be happy to continue my duties as Chief of Radiology Service.”

Following his meeting with Dr. Winick, plaintiff went to the office of Dr. Max Weil and expressed his concern that the letter might be construed as a letter of resignation. However, plaintiff took no further action in this regard and submitted his proposal for the imaging center on February 20, 1990. An ad hoc committee was appointed to review the proposal.

In March 1990, plaintiff met with Dr. Winick to discuss the imaging center proposal. Dr. Winick informed plaintiff some revisions were necessary before it could be submitted for approval. In his deposition, plaintiff stated he did not make the revisions because Dr. Winick indicated the project would not be funded in that fiscal year. The fiscal year ended June 30, 1990, and plaintiff admitted Dr. Winick did not foreclose the possibility that the project could be funded in the next fiscal year commencing July 1, 1990.

According to plaintiff’s affidavit filed in response to defendant’s motion for summary judgment, plaintiff stated that on April 7, 1990, he discovered that during the time of his sabbatical false time cards had been submitted on behalf of some of the University’s residents in radiology at the VAMC. Plaintiff reported the false time cards to Dr. Conrad Schwartz, associate chief of staff of the VAMC and professor at the University. Later, plaintiff informed Dr. Mitchell Rhoads, associate dean of the University, the Veterans Administration Inspector General, and the Secretary of Veterans Affairs.

In a memo dated April 12, 1990, Dr. Falk informed plaintiff he was in receipt of plaintiff’s February 7, 1990, letter to Dr. Winick in which plaintiff “resigned as chairman” and that his resignation was accepted. Dr. Falk also stated he would appoint a search committee for a replacement to convene after May 1, 1990. Plaintiff responded by way of letter on April 17, 1990, in which he stated that his February 7, 1990, letter to Dr. Winick was not a letter of resignation as chairman or as chief of service. Rather, plaintiff stated the letter was a statement of what he hoped would occur and that appointing a search committee for his replacement would be premature.

Plaintiff filed a grievance with the University’s faculty affairs committee on April 30, 1990. However, on August 23, 1990, the committee declined to take action on plaintiff’s grievance stating in part:

“The decision of Dr. Falk to accept Dr. Hindo’s resignation to the Chair of the Department of Radiology and to establish a committee to search for a new Chairperson of the Department is an administrative matter and as such falls within the privilege of the Dean of The Chicago Medical School. The position of Department Chairperson is not a faculty rank and is not covered by the University By-laws [sic].”

Article I, section E, of the University bylaws states that a faculty member who is a department chairman is deemed to have an administrative position. Article V, section A(2), specifies that the department chairman shall be recommended by the faculty executive council and, after approval by the president and board of trustees, shall be appointed by the dean. That section further specifies that “[t]he administrative position of chairman shall not be tenured.”

The record discloses that plaintiff’s position as chief of service of radiology at the VAMC was in jeopardy as early as January 1988. In a document entitled “Memo to the Record,” Dr. Gary Almy, chief of staff at the VAMC, stated that a meeting was held between himself, Leonard Rogers, director at the Medical Center, and plaintiff. At issue was whether plaintiff should be replaced as acting chief of radiology service. In the memo, Dr. Almy stated he informed plaintiff as acting service chief “he serves at the pleasure of the academic institutions.”

Plaintiff chaired the search committee to recruit his replacement as chief of service from late in 1988 until plaintiff’s sabbatical began in January 1989. On December 1, 1989, the VAMC informed plaintiff that he would be reinstated as a staff radiologist at the Great Lakes Naval Hospital upon his return from sabbatical. However, on December 28, 1989, plaintiff was notified that he would be assigned to the VAMC as a staff radiologist upon his return.

Plaintiff protested his removal as chief in a meeting with Leonard Rogers on March 8, 1990, stating that he must be reappointed chief or he would complain to the central office. At that same meeting plaintiff provided Rogers with a copy of his February 7, 1990, letter to Dr. Winick.

That same day, upon investigation into the matter, Dr. Almy discovered that the VAMC could not remove plaintiff as chief without central office approval. Leonard Rogers sent plaintiff a letter reinstating him as chief and accepting his resignation effective August 1, 1990, as per plaintiff’s letter of February 7, 1990. On March 22, 1990, plaintiff sent a letter to Rogers stating his letter of February 7 was not a formal resignation, but that he planned to resign well before August 1, 1990.

On July 27, 1990, the VAMC sought central office approval for plaintiff’s removal as chief and reassignment to a staff position. It received approval from the central office on August 31, 1990. On September 5, 1990, Dr. Almy met with Dr. Falk to discuss the VAMC’s plans to terminate plaintiff’s employment. Dr. Almy testified that the University’s approval was not necessary in order for the VAMC to terminate plaintiff, but was desirable. However, Mr. Hugh Doran, who was responsible for certain administrative duties at the VAMC, stated that in cases where there is a joint appointment the affiliated medical school participates in any decision to terminate a chief of service at the VAMC. Mr. Doran stated this policy was stated in the “manual references concerning dean’s committees.” The record does not contain a copy of that manual. On September 17, 1990, the VAMC terminated plaintiff’s appointment as chief of service effective that day, and his position as staff radiologist effective October 1,1990.

Plaintiff filed his complaint on December 4, 1990. Defendants’ motion for summary judgment was granted on December 11, 1991. On appeal plaintiff contends: (1) the trial court erred in granting summary judgment where there were genuine issues of material fact; and (2) the trial court erred in refusing to permit the discovery depositions of Drs. Winick and Falk before ruling on the summary judgment motion. We affirm.

Plaintiff argues the trial court erred in granting summary judgment because there was a genuine issue of material fact regarding whether the plaintiff resigned or was discharged from his position as chairman and as chief of service. However, even if plaintiff did not intend to resign, summary judgment was still proper for the following reasons.

A trial court should grant summary judgment where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c).) Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) In ruling on a motion for summary judgment, the trial court must consider all of the evidence before it and construe it most strictly against the movant. Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 1021.

However, the purpose of a summary judgment is not to try an issue of fact but to determine whether a triable issue of fact exists. (Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 866.) While a party against whom a summary judgment has been filed need not prove his case at that preliminary stage, he or she is required to present some factual basis that would arguably entitle him or her to a judgment in his or her favor. (Fuentes, 174 Ill. App. 3d at 866.) In the present case, plaintiff has failed to present a factual basis that would entitle him to relief under either a theory of retaliatory discharge or intentional interference with a contract of employment.

A valid claim for retaliatory discharge requires a showing that an employee has been: (1) discharged; (2) in retaliation for the employee’s activities; and (3) that the discharge violates a clear mandate of public policy. Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 141, 160.

First, as to the loss of plaintiff’s position as chief of service at the VAMC, the VAMC was never made a defendant in this action. Thus, it was incumbent upon plaintiff to prove the University was responsible for VAMC’s decisions to discharge its employees. Plaintiff failed to present facts showing the University was responsible for or in any way authorized to discharge a VAMC employee. Because the record is devoid of any facts showing the University had the authority to discharge plaintiff as chief of service and staff physician at the VAMC, summary judgment was proper as to this claim.

Second, plaintiff failed to present facts showing that he was discharged from his employment at the University. Rather, the facts reveal plaintiff was demoted from his position as chairman of the department of radiology, not discharged. The University bylaws and the depositions of plaintiff, Dr. Almy, Hugh Doran and Leonard Rogers, as well as the correspondence between plaintiff and Drs. Falk and Winick, reveal that the position of chairman of the department of radiology was an administrative appointment filled by an existing employee of the University. Even assuming arguendo the removal of the plaintiff from his position as chairman was in retaliation for his actions regarding the false time cards, plaintiff is still a tenured professor at the University. In fact, plaintiff received a salary increase of $20,000 as promised by Dr. Winick and noted in plaintiff’s letter of February 7,1990.

Illinois courts do not recognize a cause of action for retaliatory demotion. (See Ludwig v. C & A Wallcoverings, Inc. (N.D. Ill. 1990), 750 F. Supp. 339 (where the district court found that Illinois courts follow a narrow interpretation of retaliatory discharge and have not yet recognized a cause of action for retaliatory demotion; thus, the district court would not extend State law to create a cause of action for retaliatory demotion).) Retaliatory discharge is considered a limited and narrow exception to the general rule of at-will employment. (See Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 501.) Our supreme court has narrowly interpreted the cause of action of retaliatory discharge and does not strongly support its expansion. (Melton v. Central Illinois Public Service Co. (1991), 220 Ill. App. 3d 1052, 1055.) We decline to extend it further.

In addition, plaintiff failed to establish a factual basis to support his theory of intentional interference with his existing contract rights in employment at the University and the VAMC. To establish a valid claim of intentional interference with an existing contract right, a plaintiff must prove: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 154-55.

Plaintiff failed to establish any factual basis to support the existence of enforceable contract rights in his administrative positions as chairman of the department of radiology or as chief of service at the "VAMC. The record reveals these positions were administrative in nature and that plaintiff served at the convenience of the University and the "VAMC. Moreover, both parties to the at-will contract must be willing and desirous of continuing it in order for an action of tortious interference with contract to lie when the contract is at will. (Cashman v. Shinn (1982), 109 Ill. App. 3d 1112, 1118.) The record in this case discloses that both the University and the "VAMC were desirous of terminating plaintiffs administrative positions. Although the facts surrounding plaintiffs “resignation” are in dispute, the University nonetheless accepted the resignation. The "VAMC also accepted plaintiffs “resignation,” and, in addition, the "VAMC previously convened a search committee to search for plaintiffs replacement as early as 1988. Thus, we conclude the trial court did not err in granting defendant’s motion for summary judgment.

Lastly, plaintiff contends the trial court erred in refusing to allow plaintiff to depose Drs. Winick and Falk before ruling on defendant’s motion for summary judgment. Supreme Court Rule 191 provides that a party may submit an affidavit stating that certain material facts which ought to appear in an affidavit cannot be obtained without discovery. (134 Ill. 2d R. 191(b).) The statement must name the persons to whom such information is known and show why their affidavits cannot be procured. The rule further provides that the trial court may enter any order that is just, i.e., granting or denying a motion to compel discovery. See 134 Ill. 2d R. 191(b).

Plaintiff did not comply with Rule 191. Plaintiff’s affidavit stated that he believed Drs. Falk, Weil and Winick would testify that he did not resign from his position as chairman or as chief of service. Rule 191(b) requires facts, not conclusions (Rush v. Simon & Mazian, Inc. (1987), 159 Ill. App. 3d 1081, 1085), and plaintiff’s statement regarding defendants’ testimony is strictly conclusional.

Moreover, the record discloses that the parties agreed that the depositions of Drs. Winick and Falk would not be taken until after plaintiff’s deposition was completed. Plaintiff postponed his deposition a number of times. Plaintiff also refused to answer certain questions during his deposition, causing it to be adjourned until the trial court granted defendants’ motion to compel plaintiff to answer the questions. Thus, in light of the delays caused by plaintiff and his failure to comply with Rule 191(b), the trial court acted properly in denying plaintiffs motion to compel discovery.

The law is clear that a defendant may move for summary judgment at any time as to all or any part of the relief sought against him or her. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(b).) Specifically, trial courts may entertain motions for summary judgment where the only evidence considered is plaintiff’s own deposition testimony. (Austin v. St. Joseph Hospital (1989), 187 Ill. App. 3d 891, 896.) Thus, we conclude the trial court did not err in ruling on defendant’s motion for summary judgment before permitting plaintiff to depose Drs. Winick and Falk.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. C.H., Defendant-Appellant.
    Second District
    No. 2—90—1379
    Opinion filed November 20, 1992.

      William H. Wise, of Chicago, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

After a bench trial, the circuit court of Du Page County convicted defendant, C.H., of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12—16(b)). The court sentenced defendant to 30 months’ probation, including six months’ work release. Defendant appeals, contending that (1) his rights to due process and to confront witnesses were denied when the trial court permitted a Department of Children and Family Services (DCFS) investigator to testify regarding her interview with the victim; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) he was denied the effective assistance of counsel where his trial counsel failed to request a hearing to determine the competency of the minor witnesses and failed to object to certain allegedly improper questions.

The victim was defendant’s stepdaughter, A.B., who was 10 years old at the time of trial. She testified that defendant would read bedtime stories to her and her sister, E.B. Defendant would sit on the bed between the girls. While reading the stories, defendant would sometimes rub A.B.’s stomach. Sometimes he would touch her on her “bottom” underneath her clothes. She described her “bottom” as “right below the back bone” and the part of her body which she uses to “go to the bathroom.”

A.B. further testified that sometimes she would get up and pretend to go to the bathroom in hopes of avoiding further touching. Once her mother became suspicious and asked her whether defendant had been touching her. She told her mother that he had only touched her on her stomach. She said this because she was embarrassed and afraid.

E.B. also testified that defendant would read stories to her and her sister. Sometimes A.B. would get up and go to the bathroom during the stories.

D.H. testified that she is defendant’s wife and A.B.’s mother. One night in August 1988, she saw defendant sitting on the side of the bed next to A.B., with his hand on her bare thigh. After discussing this incident with her counselor, she told defendant that she thought his actions were inappropriate. On another occasion, she walked into the bedroom while defendant was reading to the children. A.B. jumped out from under the covers and said, “No, mommy, nothing is happening here.” A.B. appeared extremely upset. She was quivering, very tense and nervous.

The following day, she questioned A.B. about the incident. A.B. said only that “[C.H.] was rubbing her tummy.”

She subsequently brought defendant to see her counselor, Dr. Schwab, to discuss the incident with A.B. Defendant admitted that he rubbed A.B.’s stomach, but denied touching her improperly.

D.H. testified that on September 1, 1989, she and defendant were sleeping apart and had been for some time. During the early morning hours, defendant twice entered the room where she slept and woke her up. He told her that he was disappointed that her counseling was not going well, that her “attitude problem” was the source of their problems, and that she should apologize to him for taking him to Dr. Schwab. The second time, he told her that A.B. should apologize to him also.

That evening, D.H. went to the police station. She had previously obtained an order of protection against defendant which prohibited him from harassing her. She felt that he had violated the order of protection the previous night. At the police station, she talked to Officer Juliet Fabbri. During the interview, Fabbri suggested that D.H. return to the police station with her children, so that they could be interviewed by a DCFS investigator.

D.H. stated that she did subsequently return to the police station with her children. A.B. was interviewed by MaryEllen Schaid of DCFS. She and her children then spent the night at a shelter for battered women.

D.H. recalled that on September 15, 1989, she arranged to meet defendant at the library to discuss the sale of their home. She said that she felt the money in the parties’ savings, accounts should go toward the down payment on a new home for her and her daughters. Defendant replied that none of the funds in the savings accounts could go toward finding a new home. She asked him why and he said, “Because.”

D.H. then asked defendant, “Are you telling me that [A.B.] lied?”

Defendant leaned over the table and said, “No, she didn’t, but I can’t go to jail.” Later, outside the library, he said, “Do you know what they do to child molesters in prison?”

D.H. also stated that defendant’s former wife had told her about incidents of alleged sexual abuse involving defendant’s natural children.

MaryEllen Schaid testified about her interview with A.B. at the police station. Defendant objected to her testimony and requested that the court conduct a hearing pursuant to section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10) to determine whether the circumstances surrounding A.B.’s statements to Schaid demonstrated sufficiently the reliability of those statements. The court stated that since it was a bench trial, he would allow Schaid to testify. At the conclusion of her testimony he would rule on the admissibility of the victim’s statements to Schaid. Defense counsel acquiesced in this procedure.

Schaid testified that on September 1, 1989, she interviewed A.B. in a private room at the police station. The interview was not taped. She identified herself as someone who “talked to children when they got hurt or got touched by people” and said that “sometimes some of the kids I talk to get touched on their private parts.” She asked A.B. if she had ever been touched on her private parts. A.B. said that she had. She said that the touching had occurred “lots of times” and that the most recent time was approximately two weeks prior to the interview.

Schaid and her partner, James Grady, also interviewed defendant at his home. Defendant admitted that he would rub A.B.’s stomach under her clothes. He explained that he had a “target zone” and that he might have missed it on at least one occasion. He recalled one instance in which he touched A.B.’s “pubic bone” and did not remove his hand immediately.

Grady’s testimony was similar to Schaid’s regarding his interview with defendant. Grady added that as he and Schaid were leaving defendant’s house, defendant said that “he felt like he could go upstairs and cry when he thinks about what he did to [A.B.] mentally.”

The next day, the court heard arguments from counsel regarding the admissibility of Schaid’s testimony concerning her interview with A.B. After the arguments the court stated:

“The statute provides that the Court can allow the statement into evidence, if the court finds at the time, contact and circumstances surrounding the statement provide sufficient safeguards of reliability and the child who allegedly made the purported statement testifies at the hearing.
I think that the State has met their [sic] burden of showing me that it is admissible under 115—10 and, of course, the weight that the Court will attach to that statement is a different matter which will be taken up at the time I hear arguments in the case, but I will allow the statement under 115—10.”

Following the court’s ruling, the State rested.

C.T., defendant’s ex-wife, testified for the defense. She denied that she ever told D.H. that defendant had engaged in inappropriate conduct with his natural children. She denied that she ever accused him of such conduct during their divorce proceedings.

Defendant testified. He admitted that he rubbed A.B.’s stomach while reading to her. He denied that he touched other parts of her body. He denied making incriminating statements to D.H. or James Grady.

The court found defendant guilty. Following the denial of his post-trial motion, defendant filed a timely notice of appeal. On appeal, defendant contends that his rights under the due process and confrontation clauses were violated by the admission of Schaid’s testimony about her interview with A.B. Defendant contends that insufficient “indicia of reliability” surrounded A.B.’s statements to Schaid. Specifically, defendant notes that she introduced herself to A.B. as someone who talks to children who “get touched on their private parts.” No one else was present at the interview besides Schaid and A.B. The session was not videotaped. Schaid almost immediately steered the questioning to the subject of A.B.’s “private parts,” and most of A.B.’s subsequent statements came in response to leading questions. These circumstances, defendant suggests, rendered A.B.’s statements unreliable.

The State responds initially that defendant has waived this constitutional issue by failing to raise it in the trial court. The State noted that while defendant objected to the admission of Schaid’s testimony pursuant to section 115—10, he failed to raise any argument under the confrontation clause until his brief in this court.

Generally, arguments raised for the first time on appeal are deemed waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) In the instant case, defendant bases his confrontation clause argument primarily on Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, a case decided two months after the trial in the instant case. Under these circumstances, it would be unfair to apply the waiver rule. People v. Kargol (1991), 219 Ill. App. 3d 66, 73.

We conclude, however, that the confrontation clause is not implicated in this case. The constitution provides that the accused in a criminal case shall have the right to confront the witnesses against him. (U.S. Const., amend. VI.) The confrontation clause has been interpreted as barring the State from introducing some, but not all, hearsay testimony. (Wright, 497 U.S. at 813-14, 111 L. Ed. 2d at 651, 110 S. Ct. at 3145.) Wright, as well as the other confrontation clause cases which defendant cites, involved child witnesses who were deemed unavailable to testify.

In the instant case, the complaining witness did testify and was subjected to cross-examination. The Supreme Court has stated that it is the literal right to “confront” the witness which is at the core of the values protected by the confrontation clause. Thus, the court stated, there is “good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” (California v. Green (1970), 399 U.S. 149, 157-58, 26 L. Ed. 2d 489, 496-97, 90 S. Ct. 1930, 1934-35.) This court recently stated unequivocally that the confrontation clause was not implicated where, as here, the declarant was available to testify. People v. Edwards (1992), 224 Ill. App. 3d 1017, 1028.

In the instant case, the victim did testify and was subjected to cross-examination on a variety of subjects, including her statements to Schaid. Under, these circumstances, there is simply no confrontation clause violation. This does not end our inquiry, however. Defendant’s argument also refers to the statutory requirements of section 115—10 for admission of out-of-court statements by victims of sexual abuse who are age 13 or younger. Defendant objected to Schaid’s testimony on this basis in the trial court and raised the issue in his post-trial motion. Arguably, defendant has waived this issue by explicitly relying on the confrontation clause in his brief in this court. However, because the admission of improper hearsay could have deprived the defendant of a fundamentally fair trial, we choose to consider the question of whether the victim’s out-of-court statements were admissible under section 115—10.

Section 115—10 provides in relevant part:

“In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12—13 through 12—16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.)

In Edwards, although this court held that the confrontation clause was not violated, we nonetheless held that the analysis of Idaho v. Wright was useful in determining whether statements were properly admitted under section 115—10. The issue in Wright was whether the circumstances surrounding the victim’s out-of-court statements contained sufficient “indicia of reliability” to permit introduction of the statements under Idaho’s residual hearsay exception despite defendant’s inability to cross-examine the complainant. The relevant circumstances to be examined are those surrounding the making of the statement and which render the declarant particularly worthy of belief. These may include spontaneity of repetition, consistency of repetition, use of terminology unexpected of a child, and whether the child had a motive to lie. Edwards, 224 Ill. App. 3d at 1028, citing Wright, 497 U.S. at 820-21, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149-50.

Considering the facts of the instant case in light of these principles, we are unable to conclude that the court erred in admitting A.B.’s out-of-court statements. The questions which Schaid asked were not unduly suggestive and the environment of the interview was not coercive. A.B.’s description of the abuse was consistent throughout the interview and was consistent with her trial testimony. Also, there is no evidence that A.B. had a motive to lie.

We do not believe the record supports defendant’s contention that Schaid’s questions to A.B. were unduly suggestive. We note that Schaid testified only in general terms concerning what took place at her interview with A.B. Much of her testimony consisted of summaries or paraphrases of the interview. Defendant made no attempt to elicit from Schaid specific questions and answers. It appears that Schaid did ask some leading questions. However, this is understandable in light of the victim’s age and the need to focus the interview. It appears generally that A.B.’s responses were in her own words. The fact that statements were made in response to questions does not render them inadmissible. (Edwards, 224 Ill. App. 3d at 1031; People v. Deavers (1991), 220 Ill. App. 3d 1057, 1070.) Certainly, the record does not support defendant’s contention that A.B. “was merely acting as a puppet for the investigator.”

It also does not appear that the environment of the interview was unduly coercive. Schaid was the only person in the room with the complainant. There is no evidence in the record that she behaved threateningly or otherwise intimidated A.B.

Further, there is no evidence that A.B. had any motive to lie. (Cf. People v. Schott (1991), 145 Ill. 2d 188, 207 (complainant told investigator she made up story about defendant because “[s]he was angry at him for something”).) In this case, there is no evidence that A.B. had any reason, apart from the alleged abuse itself, to be angry with defendant. Defendant notes that his wife may have had a motive to lie. D.H.’s testimony makes clear that her marriage to defendant was in trouble prior to the allegations of sexual abuse. She also testified that defendant repeatedly harassed her, necessitating her obtaining an order of protection against him. While this may be true, there is simply no evidence that A.B. was similarly motivated to lie or that D.H. manipulated A.B. to make false allegations. D.H. testified that, although she mentioned her concerns about defendant and A.B. to Officer Fabbri, she “hoped it wasn’t true.” There is simply no evidence that she talked to A.B., either before the interview with Schaid or before her trial testimony, and encouraged her to fabricate allegations of sexual abuse.

Finally, we note that A.B.’s allegations were consistent throughout her interview with Schaid. Her trial testimony was also consistent with these statements. Cross-examination failed to bring out any inconsistencies or contradictions in her testimony. Considering all the circumstances, we believe that A.B.’s statements to Schaid were sufficiently reliable that the court did not err in admitting them.

The supreme court recently reached the same conclusion under similar circumstances. In People v. Wittenmyer (1992), 151 Ill. 2d 175, the court held that out-of-court statements to a police detective by a minor sex abuse victim were properly admitted. The court noted that the victim’s answers were primarily in her own words and nothing in the record indicated that the interviews were threatening or coercive. (Wittenmyer, 151 Ill. 2d at 186.) The court also rejected the defendant’s suggestion that due process required videotaping of the interview. Wittenmyer, 151 Ill. 2d at 187.

Defendant makes several additional contentions. He notes that Schaid was the only person present besides the victim. He cites no authority, however, for the contention that this circumstance renders the statements inadmissible. We note that the statements held admissible in Wittenmyer were apparently made in the course of a one-on-one interview with the detective.

Defendant further contends that the complainant’s delay in reporting the abuse renders her subsequent statements unreliable. Defendant notes that A.B. told Schaid that the most recent incident of abuse occurred at least two weeks prior to the interview. However, courts have repeatedly held that a relatively slight delay in reporting abuse does not render subsequent statements unreliable. (See Edwards, 224 Ill. App. 3d at 1031 (three-month delay “insignificant”); People v. Anderson (1992), 225 Ill. App. 3d 636 (one-month delay); Deavers, 220 Ill. App. 3d at 1069 (complainant’s failure to complain earlier does not necessarily diminish the reliability of her later statements).) Here, we do not consider the two-week delay to be significant, given the victim’s testimony that she was afraid and embarrassed.

Finally, defendant complains that the court erred in refusing to conduct a separate hearing to determine the admissibility of Schaid’s testimony. Instead, the court stated that it would allow Schaid to testify and it would rule on the admissibility of A.B.’s out-of-court statements afterward. Defendant contends that this procedure may have tainted the trial court. Initially, we note that defense counsel acquiesced in this procedure, and thus any error in this regard is waived. Moreover, we note that this was a bench trial. In a bench trial, the court is presumed to consider only admissible evidence. (People v. Hart (1991), 214 Ill. App. 3d 512, 524; People v. Roy (1990), 201 Ill. App. 3d 166, 183.) In light of this presumption, the Roy court refused to consider as plain error the court’s failure to conduct a separate hearing. Similarly, in Hart, the reviewing court found the lower court’s failure to conduct a separate hearing to be harmless error. In the instant case, the trial court’s remarks show that it applied the correct test in ruling on the admissibility of A.B.’s statements to Schaid. We do not believe that the court committed plain error.

Defendant cites People v. Coleman (1990), 205 Ill. App. 3d 567. That case, however, is distinguishable. The Coleman court reversed defendant’s conviction on other grounds. Since the cause was being remanded, the court directed the trial court to conduct a new hearing on defendant’s section 115—10 claim in conformity with Idaho v. Wright. In the instant case, although likewise decided prior to Wright, the court considered the appropriate standard in determining the statements to be admissible. There is no need to remand for a new hearing.

Defendant’s second contention is that the State failed to prove him guilty beyond a reasonable doubt. Specifically, defendant makes two related contentions. First, defendant maintains that the State failed to prove that an act of sexual conduct occurred. Second, defendant contends that the State failed to show that defendant acted with the intent to obtain sexual gratification. According to defendant, the State proved, at most, that he innocently rubbed A.B.’s stomach and may have accidentally touched her pubic area. The State responds that the circumstantial evidence was sufficient to show that defendant committed an act of sexual conduct with the requisite intent.

The relevant statute provides that the accused “commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member.” (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(b).) In turn, “sexual conduct” is defined as “any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” Ill. Rev. Stat. 1989, ch. 38, par. 12—12(e).

Criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. The relevant question is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 203; People v. Collins (1985), 106 Ill. 2d 237, 261.) The issue of the witnesses’ credibility is reserved for the trier of fact, and in a bench trial great deference and weight must be given to the trial court’s determination of the credibility of the witnesses. (People v. Allison (1983), 115 Ill. App. 3d 1038, 1042.) The intent to gratify sexual desires for purposes of the sex offense statutes may be established by circumstantial evidence. People v. Goebel (1987), 161 Ill. App. 3d 113, 125; Allison, 115 Ill. App. 3d at 1043.

In Goebel, the court held that where defendant, a school teacher, deliberately stretched out his hand a considerable distance and touched the victim’s breast, the court could infer that defendant acted with the intention of satisfying his sexual desires. In the instant case, A.B. testified that defendant touched her pubic area underneath her clothes numerous times over a period of several months. A.B. testified that these touches so upset her that she frequently feigned going to the bathroom to avoid them. D.H. testified to A.B.’s startled reaction when she walked in on defendant and A.B. Both D.H. and James Grady testified that defendant made statements indicating a consciousness of guilt. Defendant himself admitted that he might have touched A.B.’s “pubic bone” and failed to remove his hand. From this evidence, the court could infer that defendant deliberately touched the victim with the intention of gratifying his sexual desires. Although defendant testified that he merely rubbed the victim’s stomach, and any touching of her pubic area was accidental, the trial court chose to reject this testimony and accept the testimony of A.B. and the other witnesses. We will not disturb the trial court’s determinations of the credibility of the witnesses.

Defendant complains that the only evidence of defendant’s touching A.B. in improper places came from the prosecutor. Specifically, defendant complains that “there were only two strong statements about a touching of the genital or anus area, both came from the mouth of the Prosecutor. *** [A.B.] never testified about a private spot, only the Prosecutor did. Moreover, several times during the trial [A.B.] testified that Defendant was merely touching her stomach.” Defendant then cites to several portions of the record by page and line of the transcript.

Defendant’s argument simply misstates the record. Defendant’s first record citation, for example, is at the end of the following colloquy:

“Q. Now, when [defendant] read you stories, did anything unusual ever happen?
A. Well, he would touch me in places that he wasn’t supposed to.
Q. When you say, he touched you in places he wasn’t supposed to, where did [defendant] touch you?
A. Well, on my bottom.
Q. Could you describe for the Judge what you mean by your bottom?
A. Well, right below the back bone.
Q. Did he ever touch you on any other part of your body?
A. Well, on my stomach.”

A.B. later described her “bottom” as the part of her body which she uses “to go to the bathroom.”

A.B. clearly testified in response to nonleading questions that defendant touched her between her legs where she “[goes] to the bathroom.” This completely belies defendant’s assertion that the only testimony regarding a touching anywhere other than her stomach came from the prosecutor.

The evidence was sufficient to prove beyond a reasonable doubt that defendant committed an act of sexual conduct with A.B. for the purpose of sexual gratification.

Defendant’s final contention is that he was denied the effective assistance of counsel where his attorney failed to object to numerous allegedly improper questions and failed to request a hearing on the competency to testify of the two minor witnesses.

To succeed on a claim of ineffective assistance of counsel, defendant must establish that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel’s errors, the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 525.) A strong presumption exists that counsel’s performance falls within the wide range of professional competence. (People v. Barnard (1984), 104 Ill. 2d 218, 233.) It is not incompetent for counsel to refrain from raising issues which he believes are without merit unless his assessment of the merits is patently wrong. (Barnard, 104 Ill. 2d at 231.) Matters involving counsel’s exercise of judgment or trial tactics do not give rise to a claim of ineffective assistance of counsel. People v. Madej (1985), 106 Ill. 2d 201, 214.

Defendant’s argument concerning the lack of objections consists of numerous citations to the transcript by page and line number and the alleged basis for an objection. Absent is any citation of authority with regard to why the questions were improper or how defendant was prejudiced by admission of the evidence. The allegedly improper questions and answers fall into two general categories: leading questions during the State’s direct examination of A.B. and allegedly irrelevant testimony by D.H. regarding her and defendant’s marital difficulties and previous allegations of sexual misconduct by defendant with his natural children made by defendant’s ex-wife.

Defendant was not prejudiced by counsel’s failure to object to leading questions. Assuming for the sake of argument that the failure to object fell below an objective standard of reasonableness, defendant suffered no prejudice. We have already noted that A.B. testified to the essential elements of the offense in response to nonleading questions. That some preliminary or follow-up questions may have been leading did not detract from this testimony. Moreover, it is well established that leading questions may be asked of a child witness. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.9, at 412 (5th ed. 1990), citing People v. Luigs (1981), 96 Ill. App. 3d 700.) From our review of the record, it is clear that the prosecutor’s questions to A.B. were riot so suggestive as to undermine the reliability of her testimony. Thus, defendant was not prejudiced by counsel’s failure to object to these questions.

Defendant was similarly not prejudiced by counsel’s failure to object to D.H.’s testimony. D.H.’s testimony concerning the order of protection was relevant to show why she went initially to the police station on September 1, 1989. Her testimony about alleged prior instances of sexual misconduct by defendant, even if arguably inadmissible, was substantially impeached by the testimony of defendant’s ex-wife, C.T., and his daughter, E.H. In announcing its finding, the trial court stated that even if it discounted D.H.’s testimony completely, it found the evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. Moreover, the court specifically stated that it was giving no weight to allegations of sexual conduct with anyone but A.B. Thus, testimony by D.H. about additional instances of sexual misconduct was substantially impeached, and the trial court gave it no weight in reaching its decision. It follows that defendant could not have been prejudiced by his counsel’s failure to object to this evidence.

We have examined defendant’s additional contentions of failure to object to allegedly improper questions and found them to be without merit.

Defendant’s final contention is that counsel was ineffective for failing to request a hearing to determine the competency of the two minor witnesses to testify. Once again, we disagree with defendant.

A.B. was 10 years old at the time of trial. Her sister, E.B., was eight. All witnesses are presumed to be competent to testify. (Ill. Rev. Stat. 1989, ch. 38, par. 115—14.) The degree of a child’s intelligence, rather than chronological age, is the critical factor in determining competency. If the witness is sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently and to appreciate the moral duty to tell the truth, then the witness is competent to testify. People v. Garcia (1983), 97 Ill. 2d 58, 75; In re A.M.C. (1986), 148 Ill. App. 3d 775, 778.

In the instant case, in evaluating the testimony of the various witnesses, the trial judge specifically stated that he found A.B. to be “an articulate, candid, open, intelligent and honest witness.” Our independent review of the record supports this conclusion. In preliminary questioning by the prosecutor, A.B. correctly stated her name, her age, the name of her school and her grade, her address, her other family members and the age of her sisters. Throughout her testimony she gave appropriate answers to questions asked of her. In light of the trial court’s assessment of A.B.’s testimony, a challenge to her competency would certainly not have been successful.

Similarly, the record would support a finding that E.B. was a competent witness. In any event, as the State points out, E.B.’s testimony was not particularly significant to the State’s case. She merely confirmed that defendant would read to her and her sister, which defendant does not deny, and that A.B. would sometimes go to the bathroom during the stories. Assuming for the sake of argument that E.B. was an incompetent witness, striking her testimony would not have altered the outcome of the trial. Therefore, any error in permitting her to testify was harmless beyond a reasonable doubt.

Since defendant was not prejudiced by any alleged errors of his trial counsel, he was not denied the effective assistance of counsel.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO DACE, Defendant-Appellant.
    Fifth District
    No. 5—91—0523
    Opinion filed November 19, 1992.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On April 10, 1991, a jury convicted Mario Dace, 19, of criminal sexual assault. He was sentenced to five years in prison. On appeal he argues that (1) he was not proven guilty beyond a reasonable doubt; (2) his right to a fair trial was violated by the State’s improper and inflammatory closing argument, and (3) the court improperly relied upon his continuing claim of innocence to make its sentencing decision. We reverse and remand on the second issue.

L.R., a 13-year-old girl, testified that on the evening of May 6, 1990, she walked with a friend to a nearby mailbox. As the pair approached Touchette’s, a liquor store near the mailbox, they parted company. The friend crossed the street to go to the home of an acquaintance. L.R., meanwhile, saw her cousin, Clarence “Poo Poo” Anthony, standing in front of Touchette’s and stopped to talk with him. It was getting dark.

L.R. told the jury that she first saw Dace when she was coming from Touchette’s and her cousin finished looking at her hair. She testified that Dace put his arm around her and that she told him to get his arm off her. Anthony also told Dace to take his arm from around her. Anthony told L.R. to keep going, and she walked on to the mailbox. Anthony stayed at Touchette’s, while Dace walked with her toward the mailbox.

Then, L.R. testified, Dace grabbed her, took her behind a nearby church and “stuck his thing inside [her].” She stated that Dace pulled down her clothes and that she tried to stop him. She also screamed, but Dace told her to shut up. His hands were touching her vagina as he tried to assault her. Then during the assault, his hands covered her mouth. She testified that the actual sexual assault lasted about “15 to 20 minutes” and that some “white stuff” came out of his penis while he was assaulting her.

L.R. escaped. She ran, first to the nearby house to find her friend, and when she learned that her friend was not there, she ran home. She told her mother that she had been raped. Her mother asked a neighbor to call the police. Then, L.R., her mother, her sister and her sister’s boyfriend went back to Touchette’s to find Dace. L.R. testified that during the assault Dace wore a red T-shirt and blue jeans. About 15 minutes later, however, when she and her family went back to Touchette’s, she stated he was clad all in white. L.R. testified that as Dace stepped out of a car, he said, “I know you.” L.R. stated, [T]hen “everything went wild.” Dace ran. Anthony caught him. L.R.’s sister hit Dace in the face.

Sometime later that night, hospital emergency room personnel examined L.R. She testified that the hospital staff took a blood sample and her underclothes.

L.R.’s testimony was substantially corroborated by testimony from her mother and her cousin, Anthony. Anthony testified that he saw Dace with L.R. prior to the assault. He said that when Dace put his arm around L.R., he told Dace that L.R. was too young for him. Anthony testified that about 10 to 15 minutes after that conversation, L.R.’s mother was at Touchette’s looking for Dace. The defendant testified that he walked with the victim to the mailbox on the night of this incident, but he denied putting his arm around her and assaulting her.

The State also allowed L.R. to testify that she had sexual contact with her boyfriend during the seven days prior to this assault. She initially testified that she had consensual sex within three days prior to the sexual assault. However, after further questioning by the State, she stated that she had not had sex -with her boyfriend for at least six or seven days prior to the sexual assault.

The State’s forensic scientist, Michael Brown, testified that he identified a trace amount of semen on a vaginal smear from L.R., taken by hospital personnel on the night of the incident. He said he could not determine whether the semen was from the defendant, but he testified that the maximum amount of time after which he would still be able to locate and identify semen in a woman would be five days. He stated that typically “all the semen is cleared within three days.”

The State’s other witnesses were the nurse and doctor who examined L.R. in the emergency room; East St. Louis police detective James Mister, who testified about the events surrounding Dace’s arrest; and East St. Louis police detective Delores Gathing, who testified she interviewed L.R. and other members of her family and that she looked for Dace.

In his own defense, Dace testified that he did not sexually assault L.R. He admitted talking to her as she walked to the mailbox May 6, 1990. After he talked to her, he assumed that she went home. Shortly after he talked to her, he testified that L.R. and her family returned to accuse him of rape.

The defense also called defendant’s mother, Beverly Conwell, his brother, John Dace, and his brother’s girlfriend, Shauwandra Woods. These witnesses testified that the defendant had not been wearing a red T-shirt and blue jeans on the day of the sexual assault.

The defendant first argues that he was not proven guilty beyond a reasonable doubt. He asserts that his conviction must be reversed because the State failed to sufficiently prove that he sexually assaulted L.R. Although reversing on other grounds, we must consider the defendant’s challenge to the sufficiency of the evidence in order to avoid the risk of subjecting him to double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.

When confronted with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Instead, all the evidence must be considered in the light most favorable to the prosecution. The reviewing court should ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) A single witness’ identification is sufficient to uphold a conviction where the identification was made under circumstances allowing a positive identification. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 316, 570 N.E.2d 344, 352.) In light of these standards, the State presented sufficient evidence to support the jury’s verdict finding the essential elements of criminal sexual assault beyond a reasonable doubt.

The defendant’s second asserted error is that he was denied a fair trial by the prosecutor’s improper and inflammatory closing argument. The State argues that the defendant has waived this argument because his post-trial motion was too vague. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 312, 570 N.E.2d 344, 350.) In the alternative, the State argues that the prosecutor’s closing arguments were proper.

In cases where the evidence is closely balanced, the supreme court has held that errors which have not been properly preserved for appeal may be considered. (People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856, 858.) A prosecutor’s improper remarks will only be considered if they are so prejudicial as to deprive the defendant of a fair trial. (People v. Ferguson (1988), 172 Ill. App. 3d 1, 13, 526 N.E.2d 525, 533.) The supreme court did not use the plain error doctrine in People v. Pecoraro (1991), 144 Ill. 2d 1, 578 N.E.2d 942, because the evidence was not closely balanced. The Pecoraro court noted that the defendant’s version of the incident differed considerably from the prosecution witnesses’ testimony.

Whether the evidence in this case is closely balanced is a key element in whether this defendant’s asserted error may be considered by this court. If the evidence is not closely balanced, then the defendant has waived this argument by his failure to raise an effective objection to the argument either at trial or in his post-trial motion.

The evidence in this case is closely balanced. To illustrate, L.R. first testified on direct examination that she had consensual sex within three days of the assault, but after further questioning she said the last time she had consensual sex prior to the assault was six or seven days. On cross-examination, she admitted that she “couldn’t really” remember the days on which she and her boyfriend had sex. She also said she did not keep a diary.

L.R.’s testimony about the timing of her consensual sex is critical to the prosecution’s case against the defendant because the trace of semen recovered from her the night of the assault could not be identified as coming from the defendant. The expert forensic scientist testified that semen could not ordinarily be found within a woman more than three days after intercourse and never more than five days. Although a trace of semen was found on L.R.’s vaginal swab, no semen was found on either her oral or anal swab. No semen was found in her underpants and none of defendant’s hair was found on L.R.

At times L.R.’s testimony and that of other State witnesses differed from the content of their original statements to police. At times, the testimony of the State’s witnesses was in conflict. For example, L.R. stated for the first time ever on cross-examination that (1) she knew the defendant’s name before the attack but did not tell the first officer she talked to she knew her attacker’s name; (2) she scratched the defendant on his penis while he was having sex with her; (3) a lady watched the defendant assault her from the kitchen window of a house behind the church; (4) the lady watching from the window only saw her running away; and (5) the defendant started running as soon as her family got to Touchette’s. In addition, L.R. denied having ever said another man was present watching during the assault. However, Nurse Diane Hagelstein kept notes of her examination conversation with L.R., and she testified that L.R. did indeed say another man was there watching during the assault.

The testimony of L.R.’s mother and her cousin was also different from their original statements to police. L.R.’s cousin testified that L.R.’s blouse was ripped and buttoned upside down, but he neglected to include that in his original statement to the police. L.R.’s mother testified that when she and her family found the defendant at Touchette’s, he said he did not do anything and started to run away before they accused him of anything. These observations were not contained in her statement to the police. She did, however, tell the police that her older daughter hit the defendant in the face when she confronted him and accused him of rape.

Throughout the testimony, there are conflicting reports about the time this assault occurred. L.R. testified that she spent 30 minutes walking to the mailbox, approximately four blocks from her home. She then said that after the assault, before she went home, she stopped to look for a friend. L.R.’s mother testified that the assault occurred at about 7:30 p.m. and that it was “getting dark.” L.R. testified that the assault occurred at 6 or 6:30 p.m. and that it “was dark, real dark.” L.R.’s cousin testified that the assault occurred at “6:30 or so.”

In view of the closeness of the case, we conclude defendant has not waived the issue of the prosecutor’s closing argument. Because the testimony of the State’s witnesses did not itself present a clear picture of the sexual assault, the prosecutor’s closing argument was critical to convince the jury to draw the inferences necessary to convict the defendant. The prosecutor is allowed wide latitude in his closing argument (People v. Tannahill (1987), 152 Ill. App. 3d 882, 887, 504 N.E.2d 1283, 1287), but the prosecutor may not misstate the law. Misstatements of law in closing argument can be grounds for reversal. People v. Crossno (1981), 93 Ill. App. 3d 808, 821, 417 N.E.2d 827, 836.

The defendant contends that his conviction should be reversed because the prosecutor’s closing argument prejudicially misstated the law. Specifically, the defendant objects to the prosecutor’s argument to the jury that in order to acquit the defendant, each juror would have to tell all of the State’s witnesses that they were wrong about the events to which they testified. The defendant contends that this argument is tantamount to admonishing the jury that the defendant can win only if the jury finds that each of the State’s witnesses lied.

It was error in People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931, for the prosecutor to tell the jury that in order to believe the defense witnesses, the jury must find that each of the State’s witnesses was lying. Cole considered this such a misstatement of the law that it prejudiced the defendant and denied him a fair trial. Cole, 80 Ill. App. 3d at 1108, 400 N.E.2d at 933.

The prosecutor’s argument in Cole included the following statements:

“Then you got to ask yourselves if you are going to believe *** the alibi witnesses. Is there one iota of truth in the testimony of the witnesses for the State. You have got to find that Randall Keller is lying. You got to find that Officer Tencza and Slewoski and Officer Cassata are lying. You have got to find that Investigator Gans and the other witnesses of the State are lying.
Is there any reason they should lie?” Cole, 80 Ill. App. 3d at 1107, 400 N.E.2d at 932.

People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827, made the same observation when it considered the prosecutor’s argument in rebuttal that if the jury believed the State’s witnesses it must find the defendant guilty. Crossno held that there was no logical difference between this statement and the prejudicial statement in Cole because the “ ‘correct standard for jury consideration of evidence in a criminal case was obscured.’ ” Crossno, 93 Ill. App. 3d at 822, 417 N.E.2d at 836, quoting United States v. Stanfield (9th Cir. 1975), 521 F.2d 1122, 1125.

The prosecutor in Crossno argued in rebuttal: “[y]ou [the jury] can either believe the Defendant or you believe the [witnesses]. If you believe the Defendant, you’ve got to find him not guilty of everything. If you believe the other witnesses you’ve got to find him guilty of murder and aggravated battery.” (Crossno, 93 Ill. App. 3d at 821, 417 N.E.2d at 836.) The court reviewed the testimony of the State’s witnesses and observed that the jury could have believed the testimony of some of the State’s witnesses and still could have found the defendant not guilty. (Crossno, 93 Ill. App. 3d at 822, 417 N.E.2d at 836.) Crossno held that more than the credibility of the witnesses was involved in such a statement and that the prosecutor misstated the law when he said that if the jury found the prosecution’s witnesses were credible it necessitated a verdict of guilty. Crossno, 93 Ill. App. 3d at 822, 417 N.E.2d at 836-37.

Similarly, in People v. Ferguson (1988), 172 Ill. App. 3d 1, 526 N.E.2d 525, the court reversed because of the prosecutor’s closing argument that to find for the defendant, the jury had to believe “that all of the persons [witnesses] *** are liars and fools.” Ferguson, 172 Ill. App. 3d at 13, 526 N.E.2d at 533.

The prosecutor’s argument in this case is cut from the same cloth as these prejudicial misstatements of the law. The specific comments which support the defendant’s argument include:

“You almost have to believe detective Mister is coming here and making this story up if you want to believe the defendant. He said he didn’t run. And, let’s throw in detective Marion Hubbard while we’re at this conspiracy to get the defendant.”

It should be noted that there was no testimony from Detective Hubbard in this case, and the court sustained an objection to that comment. Other examples of objectionable comments include:

“Is the mother making all this up? Is she lying under oath to you? You think the mother is lying, under oath to you about the hysterics and the shaking of her own child?
* * *
The mother, you think she is going to get up here and lie?”

Finally, the defendant points to the following argument as a serious and prejudicial misstatement of the law.

“If you want to let this defendant walk, then you make up your mind you are telling James Mister that when he testified the defendant took off running and Delbert Marion said the defendant took off running that they got it all wrong. You tell them that. And you tell the mother her daughter wasn’t in hysterics. Her daughter wasn’t shaking. And you tell Mike Brown that semen lasts longer than 72 hours. And you tell Detective Mister he really didn’t go to that house several times like he said. And you tell them the brother of the defendant didn’t let him in the house to search the house. And you tell Delores Gathing, the detective, that she didn’t go there. And you tell them all not only did they not go to the house or if they went, they certainly didn’t tell the family what he was wanted for. And tell them that maybe they went, but the family told them that he was in Cahokia. You think that’s what happened? You would think if he is living in Cahokia, the family would say, ‘Hey, he doesn’t live here.’ You tell all of these people they are wrong.”

The prosecutor prejudicially misstated the law when he told the jury that if it wanted to find the defendant not guilty then it was telling all the State’s witnesses they were wrong. In fact, as in Cole and Crossno, the jury could have believed some of the witnesses and still have believed defendant’s testimony that he did not sexually assault L.R.

Detective James Mister testified that the defendant ran back into his house when the police came to arrest him. The jury did not have to believe Mister was wrong in order to believe that the defendant did not sexually assault L.R. L.R.’s mother testified that her daughter was in hysterics and shaking, but the jury did not have to disbelieve that testimony in order to believe that the defendant did not sexually assault L.R. Forensic scientist Mike Brown testified that semen typically lasts 72 hours inside a woman’s body before all traces are cleared. The jury did not have to believe that Brown was wrong in order to believe that the defendant did not sexually assault L.R. Detective Delores Gathing testified that she went to the defendant’s house looking for him. The jury did not have to believe Gathing was wrong in order to believe that the defendant did not sexually assault L.R.

In fact, the jury did not have to believe that any of the witnesses listed in the prosecutor’s argument were wrong in order to believe the defendant did not sexually assault L.R. Each of these witnesses testified only to the circumstances surrounding her reported rape and the defendant’s subsequent arrest. The jury could have believed each of these witnesses and still have found the defendant not guilty. Because the evidence was close, the closing argument was a key to convicting the defendant. Therefore, the prosecutor’s comments in closing argument, to wit, “if you want to let this defendant walk *** tell all these people [witnesses] they are wrong,” were prejudicial and denied the defendant a fair trial. These comments impermissibly misstated the law and distorted the burden of proof by telling the jury, in effect, it could find the defendant not guilty only if it believed the State’s witnesses were all lying or mistaken.

The defendant also complains about some of the prosecutor’s comments in rebuttal. The objectionable arguments were, in essence, that if the jury found that there had been no rape in this case, how could there ever be a criminal sexual assault conviction? The defendant argues that these comments impermissibly burdened the jury with acting as representatives of the criminal justice system instead of focusing its attention on its duty as a fact finder in this particular case.

Similar remarks were held to be improper but, standing alone, not reversible error in People v. Slaughter (1980), 84 Ill. App. 3d 88, 97, 404 N.E.2d 1058, 1065. In Slaughter, the prosecutor admonished the jury that if it did not come back with a guilty verdict, no other jury “hearing a case like this could find a guy guilty.” Slaughter, 84 Ill. App. 3d at 97, 404 N.E.2d at 1065.

The prosecutor’s comments in this case included the following statements in reference to the lack of seminal fluid on L.R. to corroborate her allegations of sexual assault:

“We don’t know. The crystal ball doesn’t tell us. So it’s not a rape. Sorry. Next time. How is there ever going to be a criminal sexual assault case? How is there ever going to be one? Are we going to have crowds and have cameras everywhere in the world? You can’t see. This is how criminal sexual cases occur. People don’t see the criminal sexual assault itself other than the victim.”

These statements are improper to the extent that they admonish the jury that if it does not convict the defendant, there might never be a conviction for criminal sexual assault. Yet, as in Slaughter, standing alone these comments do not constitute reversible error. However, when these remarks are taken with the prosecutor’s earlier misstatements of law, they further support the conclusion of prejudice to the defendant.

This case is reversed and remanded for proceedings consistent with this opinion. Because the case is reversed and remanded, we need not address the defendant’s final argument challenging his sentence.

Reversed and remanded.

GOLDENHERSH, P.J., and WELCH, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALDINE COLTER, Defendant-Appellant.
    Third District
    No. 3—91—0051
    Opinion filed November 10, 1992.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

A Henry County jury found defendant, Geraldine Colter, guilty of two counts of felony theft (Ill. Rev. Stat. 1983, ch. 38, par. 16—1(a)(1)). Following a hearing, defendant was sentenced to two concurrent terms of two years’ imprisonment. She appealed the sentence, and we reversed and remanded for resentencing. Defendant received the same sentence on remand. She appeals, and we again reverse.

A summary of the evidence presented at trial and at the first sentencing hearing can be found in our opinion issued in the first appeal. (People v. Colter (1989), 181 Ill. App. 3d 392, 536 N.E.2d 1372.) The judge at the first sentencing hearing relied on two factors in aggravation and two factors in mitigation in imposing sentence. In our prior opinion we found that the sentencing court failed to give adequate consideration to certain mitigating factors. In particular, we held that eight of the statutory factors set out in section 5—5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.1) applied in this case and should have been considered in favor of mitigation.

The case was reassigned to a different judge on remand. He found that five of the eight factors set out in this court’s prior opinion weighed in favor of mitigation. However, he “respectfully disagreed” with this court concerning three of the factors which he found did not apply in this case.

We find that the judge at the second sentencing hearing failed to follow the mandate of this court. An appellate court’s determination on an issue is binding on both the trial court on remand and the appellate court on subsequent appeal (People v. Lyles (1990), 208 Ill. App. 3d 370, 567 N.E.2d 396), and upon remand the trial court must proceed in accordance with the appellate court’s decision (People v. Lynch (1987), 151 Ill. App. 3d 987, 503 N.E.2d 857).

In our prior opinion, we specifically held that eight mitigating factors were present in this case. At three points during the second sentencing hearing, the judge stated on the record that he disagreed with this court’s findings and decided that only five mitigating factors applied. While it is clear that the balancing of aggravating and mitigating factors should be left to the trial judge (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), it is equally clear that when this court directs the lower court to consider a particular factor as weighing in favor of mitigation on remand, the lower court cannot simply disagree and ignore that mandate. This court has held that when a sentence is vacated and remanded because of reliance on an improper aggravating factor, the judge at the second sentencing hearing should “consider the matter anew without relying on any factors which were pointed out to be improper.” (People v. Morton (1981), 102 Ill. App. 3d 280, 282, 430 N.E.2d 383, 384; see also People v. Tompkins (1989), 179 Ill. App. 3d 887, 534 N.E.2d 1075.) Reliance on the improper aggravating factor on remand would again require reversal. We see no reason why the same rule should not apply to factors in mitigation. When this case was remanded for resentencing, the judge should have considered the matter anew, relying on those factors which this court had previously found to weigh in favor of mitigation. This he failed to do.

Parenthetically, we reject defendant’s contention that the sentencing judge ignored the mandate of this court by imposing the same sentence on remand. When a sentence is vacated on appeal and the cause remanded for a new sentencing hearing, the trial court should not construe the action of the reviewing court as a mandate to impose a lesser sentence. (People v. Giller (1989), 191 Ill. App. 3d 710, 548 N.E.2d 341.) Our prior opinion simply instructed the trial court to re-sentence the defendant taking into consideration certain factors which this court found to weigh in favor of mitigation. It is well settled that a sentence within statutory limits should not be disturbed merely because the reviewing court would have balanced the appropriate factors differently and imposed a different penalty. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We reverse only because the sentencing judge failed to follow this court’s determination of the appropriate mitigating factors to apply in this case.

For the reasons stated above, the sentence of the circuit court of Henry County is vacated and this cause is remanded for resentencing.

Reversed and remanded.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE SLATER JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY ALLEN, a/k/a Larry Allen Percy, Defendant-Appellant.
    Third District
    No. 3-91-0778
    Opinion filed November 16, 1992.
    STOUDER, J., dissenting.
    Catherine FitzSimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Larry Allen, was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12—16(c)(1)(i))- He was sentenced to an extended term of 12 years’ imprisonment. He appeals.

The indictment in this case alleged that the defendant, being 17 years of age or over, committed an act of sexual conduct with the victim, who was under 13 years of age when the act was committed. On appeal, the only issue raised by the defendant is whether his conviction should be reversed because the indictment failed to state that the alleged sexual conduct was for the purpose of sexual gratification or arousal of the victim or the accused. In support of his argument that a reversal is required, the defendant cites to People v. Edwards (1990), 195 Ill. App. 3d 454, 552 N.E.2d 358, and People v. Harris (1990), 205 Ill. App. 3d 873, 563 N.E.2d 874.

We note that the instant appeal was filed prior to our recent decision in People v. Allensworth (1992), 235 Ill. App. 3d 185, wherein we declined to follow Edwards and Harris. Instead, we concluded that the words “sexual conduct,” standing alone, are sufficiently specific to inform a defendant with reasonable certainty of the offense he is accused of committing.

Based on our holding in Allensworth, we find that the instant defendant has failed to show that he was not apprised with reasonable certainty of the charges brought against him. Accordingly, we affirm the trial court.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY, P.J., concurs.

JUSTICE STOUDER,

dissenting:

In the instant case, the defendant was charged with a violation of section 12—16(c)(1)(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(c)(1)(i)) by indictment which read in pertinent part, “Larry Allen *** committed the offense of aggravated criminal sexual abuse in that he, being 17 years of age or over, committed an act of sexual conduct with [S.M.], who was under 13 years of age when the act was committed.” Section 12—12(e) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 12—12(e)) defines “sexual conduct” for purposes of section 12—16 as “any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.”

The defendant concedes the issue is raised for the first time on appeal; therefore, the question is whether the indictment was sufficient to appraise the defendant of the precise offense charged with sufficient specificity to prepare his defense, and/or allow pleading of a bar to future prosecution arising out of the same conduct. (See People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) I believe the indictment in this case was insufficient to accomplish either. I believe the indictment is deficient in two respects: (1) it fails to allege specific acts and (2) it fails to allege a purpose of sexual gratification or arousal.

In People v. Edwards (1990), 195 Ill. App. 3d 454, 456, 552 N.E.2d 358, the court directly addressed the issue of omitting the phrase “for the purpose of sexual gratification or arousal of the victim or the accused” from the charge. The court found the language was not “inessential”; therefore, the charges were insufficient. The court found in omitting this language, the charges failed both to set forth fully the nature and elements of the offense and to be as fully descriptive as the language of the statute.

The People cite and the majority relies on our recent decision in People v. Allensworth (1992), 235 Ill. App. 3d 185, which refused to follow Edwards, citing People v. Lewis (1986), 147 Ill. App. 3d 249, 498 N.E.2d 1169, and People v. Balle (1992), 234 Ill. App. 3d 804. The holding in Balle is based on the Lewis decision. Lewis’ progeny are grounded on a misreading of the Lewis case.

In Lewis, the defendant was found guilty on three counts of a 20-count indictment. On appeal, the defendant alleged the counts on which he was convicted were void. One count alleged in pertinent part that the defendant “committed the offense of aggravated criminal sexual abuse in that he, a person 17 years of age or over, committed an act of sexual conduct, to wit: sexual intercourse.” (147 Ill. App. 3d at 251.) The other two counts substituted “anal intercourse” and “oral copulation” for the phrase “sexual intercourse.” The court reasoned that if the “to wit” phrases were omitted, the counts essentially tracked the statutory language of section 12—16(c)(1), and that the words “sexual conduct” standing alone without the “to wit” phrases were sufficiently specific.

However, the Lewis court was not presented with nor did the court address the issue before us today, i.e., the absence of the “purpose” phrase from the charging instrument. The Lewis court was addressing a different issue from that presented in Edwards. Edwards, unlike Lewis, is directly on point regarding the issue before us. Interestingly, in the case relied on by the Lewis court, People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121, the “purpose” language is included in the charging instrument. In my view, the Lewis case has been read too broadly to reach the result in Baile, AUensworth, and the majority’s decision in the instant case. If not, then Lewis was wrongly decided and should not be followed. Use of the term “sexual conduct” standing alone is not sufficient to allow a defendant to present a meaningful defense.

Under the statute, the touching or fondling is only a crime if it is done for the purpose of sexual gratification or arousal of the victim or the accused. This is the essential element of the statute which prevents physical contact in a myriad of contexts from being criminal, e.g., doctors’ examinations and ordinary contact with children under the age of 13 such as changing diapers or clothing.

In addition, the charging instrument should set forth the allegedly wrongful acts. The acts themselves are described in the definition of sexual conduct; but, the definition includes a variety of acts which if not specified in the indictment fail to describe any criminal conduct. These are minimum requirements enabling the defendant to prepare a meaningful defense.

For the forgoing reasons, I dissent.


author: PRESIDING JUSTICE BARRY

text:
    THOMAS CLARK, Plaintiff-Appellee, v. DOROTHY CLARK, Defendant-Appellant.
    Third District
    No. 3—91—0763
    Opinion filed November 17, 1992.

      Marcia F. Straub, of Peoria, for appellant.
    A. Lou Benassi, of Benassi & Benassi, of Peoria, and J. Brian Heller, of Washington, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

In a post-dissolution of marriage proceeding, Dorothy Clark appeals from an order of the circuit court of Peoria County reducing her monthly maintenance from $1,100 to $750 while extending it for 12 months.

This appeal had its origin in the 1987 dissolution of the marriage of Thomas Clark, then age 48, and Dorothy Clark, then age 46, after 30 years of marriage. The parties’ three children had reached adulthood. Thomas and Dorothy entered into a marital settlement dividing their assets so that 40% (valued at $192,200) went to Thomas and 60% (valued at $293,500) went to Dorothy. Dorothy’s share included the marital home, debt free, valued at $105,000 as well as furnishings worth $14,680 and a 1986 Cadillac automobile valued at $16,765. The remaining property awarded to Dorothy was valued at $157,000 and consisted of investments in shares of stock, savings accounts, a bond fund, and an IRA account.

The parties also agreed that Thomas would pay Dorothy rehabilitative maintenance of $1,100 per month until the first of the following occurs: (a) death of Dorothy; (b) death of Thomas; (c) remarriage of Dorothy; (d) cohabitation of Dorothy with an unrelated adult male for more than 10 consecutive days; (e) “The passage of thirty-six (36) months, at which point a court of competent jurisdiction shall review the issue of whether or not Dorothy shall receive any further maintenance.”

Thomas paid the agreed maintenance for precisely 36 months and then stopped. On December 7, 1990, Dorothy filed a petition for review of the maintenance award in which she requested an increase in maintenance retroactive to the last payment made.

The evidence introduced at the hearing on Dorothy’s petition disclosed that Dorothy had not worked full time since 1977. Prior thereto, she had held numerous secretarial positions and had obtained an associate’s degree in business administration from Illinois Central College in East Peoria. After the divorce, Dorothy sought employment as a secretary without success. When asked during cross-examination to name the places where she had applied for jobs, she could only recall four or five names, even after being allowed to refresh her recollection by looking at several pages of notes.

In the spring of 1990, she enrolled at Sangamon State University to pursue a bachelor’s degree in business management. At the time of the hearing in April of 1991, Dorothy had 86 credit hours toward the 120 hours required for a degree. During the four terms she had attended Sangamon State prior to the hearing, she had been enrolled as a full-time student only once.

According to Dorothy’s 1990 income tax return, she had no earned income, but she did have interest and dividends totalling $6,382 plus alimony received of $11,000. (In previous years her annual alimony was $13,200.) Dorothy testified that her monthly living expenses amounted to $3,259, that she had purchased a house as rental property for $7,000 but had received no income to date, and that she had purchased a ring on credit for $17,000 shortly before the hearing. In addition, during 1990 she took three vacations: one to Jamaica, one to Las Vegas, and one a cruise. She also testified that the real estate taxes on her home were overdue, that she was two months behind on her health insurance premiums, and that she had other unpaid bills.

When questioned about various transfers of investment assets since the divorce, Dorothy often could not remember dates or amounts or the purpose of various transactions. However, she was not allowed to look at any papers to refresh her recollection of those transactions.

Dorothy’s financial statement introduced at the hearing listed her bank accounts and investments as valued at $125,462. These assets are in addition to her residence, rental house, household goods, and car. She also listed debts totalling $29,042, including most of the purchase price of the recently purchased ring and $1,666 shown as owed to Clyde Bridgeman for “balance of investment.” During cross-examination, she admitted that she forgot to list the ring and the Bridgeman investment of $3,333 as assets.

Thomas is the manager of a cable television company with a total annual income in 1990 of $83,656. In 1987 at the time of the dissolution of marriage, his income was about $64,000 annually. The evidence indicated that the value of his assets has increased by $91,000 and that his monthly living expenses are about $4,000, excluding his maintenance payments.

The trial court found that Dorothy failed to establish that she had made substantial efforts to obtain gainful employment or to complete training or education so that she could be self-supporting, and also that she had not given attention to her assets. The court found Dorothy can become self-supporting with “a modest amount of further effort and time” spent in furthering her education, seeking employment, and marshaling and managing her present assets. The court then awarded her monthly maintenance of $750 for 12 months to begin on the date of the order.

Dorothy filed a handwritten pro se motion to reconsider, and Thomas filed a motion to dismiss the motion to reconsider. The trial court denied both motions, and this appeal followed.

Dorothy’s first contention on appeal is that the trial court erred in reducing her monthly maintenance from $1,100 to $750 when the evidence clearly established that her monthly expenses are about $3,000 and that she is attempting to prepare herself for full-time employment. Dorothy insists that section 504(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)) entitles her to maintain the standard of living enjoyed during marriage (see In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336) and, furthermore, that she is not required to sell her assets or capital in order to maintain that standard of living. See In re Marriage of Courtright (1989), 185 Ill. App. 3d 74, 507 N.E.2d 891.

This contention might be more persuasive if Dorothy had introduced evidence establishing her standard of living during the marriage. The record contains no evidence as to what she spent for vacations, food, clothing, entertainment, or other expenditures during the marriage. Thus, there is no bench mark which a court can use to determine whether Dorothy is now unable to afford things she formerly enjoyed.

Dorothy also argues that, when the court ruled that she can become self-supporting with a modest amount of effort, it ignored her testimony that she had sought employment without success and that she has been pursuing a college degree. Dorothy contends that her age and years away from the work force must be taken into account and that she needs time to obtain an MBA so as to increase her ability to earn a higher income. See In re Marriage of Kusper (1990), 195 Ill. App. 3d 494, 552 N.E.2d 1023 (where the wife was allowed five years of maintenance).

The standard of appellate review is simply that a trial court’s award of maintenance will not be overturned unless the court’s judgment was against the manifest weight of the evidence, thus demonstrating an abuse of discretion. (In re Marriage of Courtright, 185 Ill. App. 3d 74, 507 N.E.2d 891.) This court has held that, where a spouse receiving maintenance failed to make a reasonably diligent attempt to complete a college degree so as to be financially independent, and also failed to seek employment diligently, it was not an abuse of discretion to terminate maintenance payments. In re Marriage of McGory (1989), 185 Ill. App. 3d 517, 541 N.E.2d 801.

Here, Dorothy’s testimony concerning her assets, liabilities, investments, expenses, job search, and educational plans included many vague and unclear, contradictory answers. She invested in a rental home but has collected no rent. She has recently purchased carpet costing more than $7,000 and a ring costing $17,000, but is delinquent in such important expenses as real estate taxes and health insurance. She began her unsuccessful job search in 1987 but did not enroll in college until 1990, and then attended on a part-time basis for three out of four terms. The trial court did not abuse its discretion in concluding that she has managed her income and assets in an improvident manner and that she has not been diligent in seeking employment or further education. The reduction in maintenance was not error.

Dorothy also contends that it was error to refuse to make the reduced maintenance payments retroactive to the date Thomas stopped paying maintenance under the settlement agreement. It is her position that the original maintenance order was for 36 months, subject to review by either party, and that the court’s determination that Dorothy was entitled to additional maintenance should have included the seven-month interim period during which Thomas made no payments. In other words, if she was entitled to maintenance, she should have been awarded continuous payments. Thomas, on the other hand, contends that maintenance would terminate after 36 months unless Dorothy sought review of the award.

The determination that Dorothy’s additional year of maintenance should begin on the date of the order, not the date the original three years of maintenance expired, was also a matter properly within the discretion of the trial court. Considering Dorothy’s available resources, we cannot say that the trial court abused its discretion in providing that the additional maintenance would be prospective only.

Accordingly, we affirm the order of the circuit court of Peoria County.

Affirmed.

McCUSKEY and SLATER, JJ., concur.