author: JUSTICE EGAN

text:
    IRENE ALEXANDER, Plaintiff-Appellant, v. YELLOW CAB COMPANY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—1750
    Opinion filed January 29,1993.

      James P. Crawley and Phillip A. Doran, both of Balkin & Doran, Ltd., of Chicago, for appellant.
    Howard T. Goffen, of Jesmer & Harris, of Chicago, for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Irene Alexander, appeals from an order of the circuit court granting summary judgment in favor of the defendants, Yellow Cab Company (Yellow Cab) and Donald Jones. The pertinent record consists of the depositions of the plaintiff, Donald Jones, who was driving a Yellow Cab that struck the plaintiff, and the depositions of Jones’ two passengers. The plaintiff contends that questions of fact exist that bar summary judgment.

At 12:20 p.m., on August 11, 1988, the plaintiff, who was 68 years old at the time, was struck by a cab owned by Yellow Cab and driven by Donald Jones. The accident occurred on Michigan Avenue between Wacker Drive and South Water Street in Chicago. The plaintiff was on the east side of Michigan and started to walk to the west side. At the point where she started to walk, there were three lanes for northbound traffic. There was no painted crosswalk at the point from which she started to cross. (It was later conceded that the plaintiff was crossing “mid-block.”) Cars were parked on the east side of Michigan. She started to cross from a point between two parked cars. There were three lanes between the parked cars and the center of the street. The traffic light at Wacker was red for northbound traffic. Traffic was stopped in the first two lanes, but there were no cars in the third lane, which was the lane closest to the center line of the street. As she was crossing the street, she walked between the cars that were stopped at the Wacker light in the first two lanes.

The plaintiff testified that she had one foot into the third lane when she looked to her left in the direction of South Water Street, which was the street south of Wacker. She saw the Yellow Cab two car lengths to the south, about 35 to 40 feet away. She estimated the speed of the cab at 25 miles per hour and that one to two seconds elapsed before she was struck. She did not hear the sound of a horn.

Donald Jones testified that he was driving his cab west on South Water Street; he had two passengers. It was a “beautiful, sunshiny day.” He made a right-hand turn into the lane closest to the center line on Michigan Avenue. Traffic was very congested. When he pulled into the lane, he came to a stop because traffic in that lane was backed up from the red light at Wacker. Traffic began to move in his lane. He did not see the plaintiff before his vehicle struck her. He estimated that at the time his vehicle struck the plaintiff, he was going between 5 and 10 miles per hour. At the time the impact occurred, the light for northbound traffic on Michigan Avenue was green.

He heard the passengers say, “Oh, my God,” before the impact. The passengers’ sudden utterance called his attention “to the presence of [the plaintiff].” There was a cab in the lane to his right which was stopped. The plaintiff was behind the stopped cab. He did not sound his horn before the impact.

Marsha Lloyd was one of the passengers in the cab. She testified that, as Jones turned onto Michigan Avenue, there were no cars traveling immediately in front of them. Traffic was clear up to the point where the collision with the plaintiff took place. There were cars in the two lanes to the east. The driver did not stop before the impact. He was traveling about 10 to 15 miles per hour. Lloyd estimated that she saw the plaintiff two or three seconds before the impact. The plaintiff was walking in a westerly direction. She was crossing between two stopped vehicles. The plaintiff was already in the cab’s lane when Lloyd saw her. The driver sounded his horn and swerved to the left.

Section 2 — 1116 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116) provides that a plaintiff in an action for bodily injury based on negligence “shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage.” The trial judge held that the evidence established as a matter of law that the plaintiff’s negligence was more than 50% of the proximate cause of her injury.

The defendants cite several cases for the proposition that contributory negligence may be established as a matter of law. But those cases were decided under the law that any contributory negligence which was a proximate cause of the injury barred any recovery. We judge that the defendants have established, indeed the plaintiff concedes, that the plaintiff was guilty of some contributory negligence that proximately caused her injury. The issue before us, however, is whether the evidence establishes as a matter of law that the plaintiff was guilty of more than 50% of the negligence that caused her injury.

The defendants have cited one Illinois case and two cases from other jurisdictions which involve the question of whether the degree of contributory negligence may be decided as a matter of law. (See West v. Kirkham (1991), 207 Ill. App. 3d 954, 556 N.E.2d 523; Lyons v. Nasby (Colo. 1989), 770 P.2d 1250; Robinson v. Westover (1980), 101 Idaho 766, 620 P.2d 1096.) None of those cases supports the defendants’ position. In West v. Kirkham, the trial judge granted summary judgment to the defendant on the ground that the plaintiff’s contributory negligence exceeded 50%. The appellate court reversed the summary judgment order, holding that the evidence failed to establish as a matter of law any contributory negligence on the part of the plaintiff. The defendants had argued that a trial court may properly determine the degree of contributory negligence. The appellate court refrained from “deciding the issue.” West, 207 Ill. App. 3d at 960.

In Lyons v. Nasby, the trial judge dismissed a complaint brought against a tavern owner for wrongful death. The tavern owner had served the decedent, who was intoxicated and was later killed when he drove off a mountain road. The appellate court affirmed on the ground that a tavern owner owed no duty to an inebriate. The supreme court of Colorado reversed the trial court and the appellate court and for the first time held that tavern owners’ liability was not restricted only to claims brought by persons injured by an inebriate, but extended also to claims by the inebriate himself. The court added that any claim for injury to an inebriate would be tested under common law tort principles and the statutory law of comparative negligence. The court made this observation:

“We also note that the degree of the parties’ fault here is to be determined by the trier of fact. Only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference should relative degrees of fault be determined as a matter of law. [Citation.] Absent this degree of clarity, the issue of comparative negligence should be submitted to the jury.” Lyons, 770 P.2d at 1259-60.

In Robinson v. Westover, the plaintiff, a seven-year-old boy, was standing next to his motorcycle on the side of a road. His 14-year-old cousin, who knew the defendant, was standing on the other side of the road. The cousin saw that the plaintiff had the front wheel of his motorcycle located on the asphalt of the highway but behind a white fog line on the side of the highway surface. The cousin signaled the plaintiff to cross the highway, but the plaintiff stayed where he was. The cousin turned his attention to the approaching traffic and saw the vehicle driven by the defendant. The cousin was observing the defendant’s vehicle at the time the vehicle struck the plaintiff.

There was some question whether the defendant saw the plaintiff before the impact. He testified that “at a very close distance, the motorcycle pulled out in front of my car. *** I saw him about the time that — where he was almost directly in front of the car because my eyes were turning back from the left from where [his cousin] was and the [plaintiff’s] house was and he was coming on from this side, and then I hit him.” Robinson, 101 Idaho at 767, 620 P.2d at 1097.

The supreme court of Idaho reversed summary judgment in favor of the defendant:

“We conclude that, on the facts which were before the district court, reasonable minds might very well differ as to whether [the defendant] failed to keep a proper lookout, and if so differ also as to the degree of his negligence, if any. It was established that [the plaintiff] was stopped with his motorcycle next to the highway surface for a period of time prior to the accident, and that there were no obstructions to [the defendant’s] vision as he approached the point where [the plaintiff] was stopped. Notwithstanding this fact, [the defendant] stated that he did not observe [the plaintiff] until immediately before the impact.” Robinson, 101 Idaho at 769, 620 P.2d at 1099.

Like the appellate court in West v. Kirkham, we need not and do not say that a court may never determine as a matter of law that a plaintiff’s negligence was more than 50%. But we do say that the facts of this case are insufficient to support such a determination. The plaintiff testified that she first saw the cab about 35 to 40 feet away. She estimated the speed of the cab at 25 miles per hour and that one or two seconds elapsed before she was struck.

Marsha Lloyd estimated that she saw the plaintiff two or three seconds before the impact. Jones testified that he did not see the plaintiff before his vehicle struck her. It was the passengers’ outburst, “Oh, my God,” that called his attention “to the presence of” the plaintiff. A fact finder could reasonably infer that Jones did not see the plaintiff when his passengers did; that he would have seen the plaintiff at the same time his passengers did, if he had kept a proper lookout; and that, if he had seen the plaintiff when his passengers did, he could have avoided striking the plaintiff.

There is one important contradiction between the testimony of Jones and Lloyd. Jones testified that he had to stop after he turned onto Michigan Avenue because the traffic in the third lane was backed up from the light at Wacker. Lloyd said there was no traffic in the third lane when Jones turned onto Michigan. Lloyd also contradicted Jones’ testimony when she said that Jones sounded his horn. Considering, as we must, the evidence in the light most favorable to the plaintiff, we judge that the degree of the negligence of the parties would be properly left to a fact finder and that summary judgment should not have been entered in favor of the defendants.

The defendants also maintain that they owed no duty to the plaintiff. We disagree. Anyone driving a motor vehicle anywhere has a duty to maintain a proper lookout for pedestrians, other vehicles or any other obstacle in the vehicle’s path. The main thrust of the defendants’ argument is that the defendant did not have a duty to anticipate the plaintiff’s negligence and cites Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. That case involved the duty of the owners of land to persons who come upon the land. The supreme court reversed an order granting a defendant judgment notwithstanding a jury verdict in favor of a plaintiff injured on the defendant’s premises. The court added this observation:

“This is not to say that the defendant must anticipate negligence on the part of the plaintiff. Generally, a party need not anticipate the negligence of others. [Citations.] The inquiry is whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but who may reasonably be expected to be distracted, as when carrying large bundles, or forgetful of the condition after having momentarily encountered it. If in fact the entrant was also guilty of negligence contributing to his injury, then that is a proper consideration under comparative negligence principles.” (Emphasis added.) Ward, 136 Ill. 2d at 152.

To say that any person driving a vehicle on a summer day in downtown Chicago has no reason to anticipate that pedestrians will cross a street outside a crosswalk is to ignore reality.

For these reasons, we judge that summary judgment was improperly granted to the defendants. The judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed and remanded.

RAKOWSKI and GIANNIS, JJ., concur.

       Justice Rosemary La Porta participated in oral argument before her death. Justice Gus Giannis was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    JAY CECIL HARTSFIELD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Humko, Division of Kraft, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—92—0142WC
    Opinion filed March 4,1993.
    —Rehearing denied April 23,1993.

      Champaign-Urbana Legal Clinic, P.C., of Champaign (Bernard A. Puglisi, of counsel), for appellant.
    Joseph V. Dowd, of Dowd & Dowd, Ltd., of Chicago (Michael G. Patrizio, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, Jay Cecil Hartsfield (the claimant), filed four applications for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.), contending that on four separate occasions he sustained a myocardial infarction in the course of and arising out of his employment with the appellee, Humko, Division of Kraft (the employer). Following a hearing, the arbitrator denied compensation. The Industrial Commission (the Commission) affirmed the arbitrator’s decision, finding that the claimant had failed to prove accidental injuries arising out of and in the course of his employment. The circuit court confirmed the Commission’s decision, and the claimant appealed to this court.

At the time of the alleged injuries, the claimant was 47 years old and was employed as a gas plant operator. The claimant’s job required him to operate and monitor the employer’s hydrogen and nitrogen production plants. Specifically, the claimant’s duties included monitoring a panel board and water towers, controlling water quality and keeping his area clean. The claimant had to physically check the temperatures in the furnaces and had to climb on vessels in order to change valves. The claimant was also required to observe the panel board to avoid an emergency condition in the plant. The claimant testified that if an emergency occurred and he did not take corrective action, there could be an explosion. If corrective action was required, it was performed from the panel board or by crawling out on top of the unit and making an adjustment there. The claimant’s shifts lasted eight hours. During a normal shift, the claimant had to climb three flights of stairs on one side of the plant and two flights on the other side. The claimant did this four or five times during his shift. Sometimes the claimant had a helper who assisted with these duties.

The claimant testified that in early May 1980, he experienced pain in the back of his right arm, just above the elbow. Sometime during the first two weeks of May, the claimant rolled 55-gallon barrels, some of which weighed over 400 pounds. The claimant moved them with a two-wheeled dolly by tipping them up. The claimant also experienced pain in his arm when tightening a large union on a pipe. The claimant testified that “from time to time” he told his foreman, Terry Clark, and his helper, Kenneth Linck, about his pain. The claimant sought no medical attention for the pain he experienced in May 1980.

On July 30, 1980, the claimant suffered a myocardial infarction while vacationing in Florida. The hospital records from Memorial Hospital in Sarasota, Florida, indicate that the claimant had been suffering from angina-like pain over the past two weeks. The records state that it is possible that the claimant had suffered a previous myocardial infarction. During the claimant’s hospitalization in Florida, his son went to the employer’s insurance office to obtain insurance forms. When the claimant submitted the insurance forms, he marked the box for “illness” rather than “work injury.”

Upon returning to Illinois, the claimant came under the care of Dr. Aldred Heckman. On October, 30, 1980, the claimant entered Burnham City Hospital and was diagnosed as having anterior sclerotic heart disease. The claimant underwent a heart catheterization, and it was discovered that he was suffering from a completely blocked left anterior descending coronary artery. The claimant was released from Burnham City Hospital on November 1. Dr. Heckman released the claimant to return to work on November 17, and advised him to begin slowly and then gradually increase his work load.

On November 14, 1980, the claimant was examined by Dr. Gerald Lietz, the company doctor. Dr. Lietz checked the claimant’s blood pressure, listened to his heart, and reviewed Dr. Heckman’s certificate. Dr. Lietz did not find any obvious heart disease, but did not conduct any significant tests or ask about the claimant’s working conditions. Dr. Lietz did not put any restrictions on the claimant’s work.

On December 12, 1980, the claimant experienced chest and neck pain as he was leaving the plant. That day, the claimant had to take corrective action at the plant when the boiler room cut off the makeup water to a new boiler. This caused a shutdown of the whole plant on the hydrogen side. The claimant’s corrective action consisted of using a pipe wrench and large handwheels on valves. Late in the afternoon, the claimant had to move oil barrels weighing between 200 and 250 pounds. When the claimant experienced pain, he went to the lunchroom and took nitroglycerine tablets and rested for about 20 minutes. By the time the claimant arrived home, he had taken between six and eight of the nitroglycerine tablets. The claimant’s wife took him to Mercy Hospital that evening. Dr. Heckman examined the claimant during his hospitalization and found his physical condition to be unchanged. Dr. Heckman released the claimant to return to work on December 14, 1980.

On December 18, 1980, the claimant experienced pain in his arm and shoulder as he was getting ready to leave work. During that day, the claimant had to do an inventory run. This required the claimant to move 40 to 45 drums so that he could read their labels. When the claimant experienced the pain, he took two nitroglycerine tablets. The claimant’s wife took him to Mercy Hospital, where he was hospitalized until December 23. The claimant has not worked since then. Dr. Heck-man saw the claimant at the hospital and believed that the claimant had suffered a subendocardial heart attack.

The deposition of Dr. Heckman was taken on January 14, 1985. Dr. Heckman found that the claimant had suffered a myocardial infarction on July 30, 1980, while vacationing in Florida. Dr. Heckman found that the claimant had a total occlusion of the left anterior descending artery beginning at its origin. Dr. Heckman found the claimant’s condition unchanged on December 13, 1980. Dr. Heckman was not in total agreement with the claimant’s decision to return to work. On December 19, Dr. Heckman again examined the claimant and believed that he had suffered a slight heart attack. In response to a lengthy hypothetical question that referred to the events of December 18 and the claimant’s physical condition, and assumed such things as that the claimant was following a low-fat, low-cholesterol diet, Dr. Heckman opined that there was a correlation between the hypothetical events and the claimant’s alleged myocardial infarction of Decernber 18. Dr. Heckman also stated that claimant’s heart attack on December 18 could have occurred without any exertion on the claimant’s part. Dr. Heckman had previously stated in a letter on February 28, 1983, that in his opinion, the claimant’s coronary artery disease was not related to his employment.

Dr. Nathaniel Greenberg also testified for the claimant. Dr. Green-berg examined the claimant on May 29, 1984. In Dr. Greenberg’s opinion, the claimant did not have a heart attack prior to July 30, 1980, nor did the claimant have a heart attack on December 12, 198b. Dr. Greenberg did believe that the claimant suffered myocardial infarctions on both July 30 and December 18. In response to a hypothetical question describing the events of December 18, Dr. Greenberg opined that the claimant’s work caused his alleged myocardial infarction.

Dr. William Brice Buckingham testified for the employer. Dr. Buckingham examined the claimant at the employer’s request on April 13, 1983. In Dr. Buckingham’s opinion, the only myocardial infarction the claimant suffered was on July 30, 1980, while on vacation in Florida. Dr. Buckingham believed that on December 18, the claimant was suffering from ischemia (an inadequate blood supply) rather than another myocardial infarction.

The arbitrator denied all four of the claims and concluded that the claimant failed to prove accidental injuries arising out of and in the course of his employment on any of the dates in question.

Additional evidence was presented before Commissioner Alvin R. Cooke on October 26, 1988. At that hearing, the proceedings were limited to the claimant’s condition since arbitration. On February 1, 1991, the Commission affirmed the arbitrator’s decision. With respect to the May 1980, claim, the Commission found that the claimant had not presented any medical evidence of an injury. The Commission also found that the claimant had not provided the employer with notice of a May injury. Regarding the July 30 claim, the Commission found that the claimant suffered a myocardial infarction while vacationing in Florida. The Commission noted that Dr. Buckingham and Dr. Heck-man both testified that the type of infarction the claimant suffered could have occurred whether the claimant was awake or asleep, active or inactive. The Commission also noted that insurance forms submitted by the claimant indicated that his condition was not due to an occupational injury or disease. Concerning the December 12 incident, the Commission concluded that the claimant had not provided the employer with notice of an alleged accidental injury. The Commission also noted that blood enzyme tests showed no new changes in the claimant’s condition. With respect to the December 18 incident, the Commission seemed to be relying on the testimony of Dr. Buckingham that the claimant suffered no heart attack on that date. However, the Commission noted Dr. Heckman’s testimony that if the claimant suffered a subendocardial infarction on December 18, then it resulted primarily from the July 30 infarction.

The circuit court confirmed the decision of the Commission. The court reviewed the evidence in each case and concluded that the Commission’s decision was not against the manifest weight of the evidence. The court concluded that since the Commission did not discuss the notice issue, the Commission found that no compensable injuries occurred.

The claimant raises three issues on appeal: (1) whether an extra degree of scrutiny should be applied to the record to determine whether there was sufficient support for the Commission’s decision; (2) whether the Commission’s decision is against the manifest weight of the evidence; and (3) whether the claimant gave proper notice to the employer.

The claimant initially argues, based on this court’s decision in Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379, that this court should apply an extra degree of scrutiny to the record to determine if there is sufficient support for the Commission’s decision. In Cook, it was stated that an extra degree of scrutiny would be applied to the record in cases where the Commission rejected the arbitrator’s factual findings without hearing any new evidence. The claimant argues that, in this case, the arbitrator did not rule on the numerous objections made by counsel for both parties in the evidence depositions of the various doctors in this case. Pursuant to a motion by the claimant’s attorney, a Commissioner who was not a member of the panel that heard the case ruled on those objections. The claimant argues that since that Commissioner ruled on those objections instead of the arbitrator, the Commission could not have affirmed or adopted all of the arbitrator’s findings. Nevertheless, the statement in Cook regarding an extra degree of scrutiny is not a standard of review recognized by this court. We will only consider whether the Commission’s decision was against the manifest weight of the evidence.

The claimant next argues that the findings of the Commission with regard to all four of the claims were against the manifest weight of the evidence. It is for the Commission to determine the credibility of witnesses, to weigh the testimony and to decide the weight to be accorded the evidence. (National Biscuit, Inc. v. Industrial Comm’n (1984), 129 Ill. App. 3d 118, 472 N.E.2d 91.) Where there are conflicting medical opinions, a court of review will not substitute its judgment for that of the Commission regarding what medical evidence will be believed, unless that decision is contrary to the manifest weight of the evidence. (Azzarelli Construction Co. v. Industrial Comm’n (1981), 84 Ill. 2d 262, 418 N.E.2d 722.) It is for the Commission to determine whether there was a causal relationship between the employment and the injury. (County of Cook v. Industrial Comm’n (1977), 69 Ill. 2d 10, 370 N.E.2d 520.) In a case involving a myocardial infarction, where one’s heart has deteriorated to such an extent that any exertion becomes an overexertion, it is not sufficient to show merely that the employee has engaged in some job-connected physical activity prior to the attack. (Rock Road Construction Co. v. Industrial Comm’n (1967), 37 Ill. 2d 123, 227 N.E.2d 65.) At this point, we will consider separately the arguments and evidence with respect to each of the claims.

I. May 1980

The claimant argues that the Commission ignored proper evidence in finding that he had not suffered a heart attack in May 1980. The claimant points out that the records of Florida Memorial Hospital indicate that he had been experiencing right arm pain for a few months before his July 1980 infarction. The claimant also complains that the Commission and arbitrator both failed to mention the testimony of Dr. Heckman that arm pain could mean a myocardial infarction and the testimony of Dr. Greenberg that there can be a delay between the time of physical exertion and a later infarction. The claimant also notes the testimony of his wife, who testified that he had been experiencing arm pain for a month before his July 30 infarction. The claimant tries to compare his case to repetitive-trauma cases, contending he is arguing the various dates as manifestation dates of his cardiac troubles that were caused by the physical and mental stresses of his work environment.

The employer argues that there was no evidence that the claimant suffered a heart attack in May 1980. The employer concedes that the claimant’s symptoms were consistent with coronary disease, but argues that there was no causal connection between the claimant’s employment and this disease. The employer points out that the claimant complained of arm pain while resting at home. The employer argues that the hospital records in Florida support its position that there was no May 1980 heart attack. Those records merely note that Dr. Meyers found the possibility of a prior myocardial infarction, but do not con-elude that one had occurred. The employer further argues that, even if the claimant suffered a heart attack before July 1980, there is no evidence that it happened as early as May. The claimant’s wife testified that the claimant’s previous arm pain occurred approximately one month before July 30, which would mean around the first of July. The employer further notes the testimony of Dr. Meyers that the claimant was suffering from exogenous obesity, essential hypertension, and situational anxiety. The employer refutes the claimant’s repetitive-trauma theory and asserts that even if such an argument could be made, the claimant would still have to prove that the injury was work related.

We find that the Commission’s conclusion that the claimant suffered no heart attack in May 1980 was not against the manifest weight of the evidence. The circuit court relied on the Commission’s statement that the claimant did not testify to or offer any evidence of a coronary incident in May 1980. The court also noted the Commission’s statement that no physician testified that the July 30 infarction was related to stress in May. The bottom line is that there was no medical evidence of an infarction in May 1980, and the Commission’s decision with regard to this claim was clearly not against the manifest weight of the evidence.

II. July 30,1980

All of the doctors who testified in this case agree that the claimant suffered an acute myocardial infarction on July 30, 1980, while vacationing in Florida. The dispute is over whether this heart attack was work related. The claimant argues that the Commission ignored evidence that this heart attack was causally related to the claimant’s job-related stress. The claimant argues that he had a “nerve-wracking, stressful job.” The claimant further relies on Dr. Greenberg’s testimony that myocardial infarctions which occur in relation to activity can occur at some time remote from the activity. The claimant cites Associates Corp. v. Industrial Comm’n (1988), 167 Ill. App. 3d 988, 522 N.E.2d 102, for the proposition that some act of employment only needs to be a causative factor of the claimant’s condition, rather than the sole, or even principal, causative factor.

The employer argues that there is no evidence to connect the claimant’s myocardial infarction of July 30, 1980, to his employment. The employer points out that the claimant was vacationing in Florida when the heart attack occurred. Further, the claimant indicated on insurance forms that his condition was not work related. The employer also argues that there was no objective evidence to show that the claimant’s occupation of monitoring gauges on a panel was stressful. The employer also notes that the records of Sarasota Memorial Hospital indicate that the claimant had several risk factors: the claimant smoked a pipe, he was overweight but did not recognize this, he did not engage in regular aerobic exercise, he was under stress, and he appeared to have Type A personality characteristics.

We believe the circuit court properly concluded that the Commission’s finding that the claimant suffered no accidental injury arising out of and in the course of of his employment on July 30 was not against the manifest weight of the evidence. The court correctly noted that the claimant presented no medical testimony that the myocardial infarction was precipitated, even in part, by his employment activities. As previously noted, the Commission relied on the testimony of both Dr. Buckingham and Dr. Heckman that the type of infarction the claimant sustained could have happened whether the claimant was active or inactive. When a claimant’s condition has deteriorated to that point, compensation is denied. See Rock Road Construction Co., 37 Ill. 2d 123, 227 N.E.2d 65.

III. December 12, 1980

The claimant argues with respect to this claim that the Commission ignored testimony that he was supposed to slowly increase his work load upon returning to work. The claimant also argues that he had to deal with an hour-and-a-half-long emergency on this date in addition to his usual activities. The claimant essentially reargues the facts with respect to December 12, noting the arm pain he experienced and also the records of Mercy Hospital showing possible inferior infarcts. The claimant further argues that it was error for the Commission to conclude that he failed to give notice to the employer of an injury on this date. The claimant points out that he told his foreman about the incident when he returned to work the following Monday.

The employer argues that the claimant’s recitation of his work load on December 12 is irrelevant because the claimant suffered no compensable accident. The employer noted the testimony of Dr. Heckman that the claimant’s condition was unchanged since August and the testimony of Dr. Greenberg that the claimant suffered no infarction on that date.

We agree with the employer. The evidence indicated only that the claimant suffered arm and neck pain; the evidence does not indicate that an infarction occurred. The claimant’s own expert, Dr. Green-berg, testified that no infarction occurred on December 12. Clearly, the Commission’s decision was not against the manifest weight of the evidence.

IV. December 18,1980

The claimant believes this to be the most compelling of his claims and devotes most of his argument to this date. The claimant first argues that the employer’s own exhibits indicate that the claimant had a heart attack on December 18, and therefore, this should be held to be an admission by the employer that an infarction occurred on this date. The exhibits the claimant refers to are insurance forms wherein the claimant fills out the top portion and the claimant’s attending physician fills out the bottom portion. The employer used these exhibits to show that the claimant marked “illness” rather than “work injury.” On the bottom of these forms is Dr. Heckman’s diagnosis of a possible myocardial infarction on December 18. The claimant argues that this indicates an admission by the employer that the claimant suffered a heart attack on that date, and also that the employer received notice. The claimant further argues, based on Sohio Pipe Line Co. v. Industrial Comm’n (1976), 63 Ill. 2d 147, 345 N.E.2d 468, that a claimant’s statement on an insurance form that his disability was not due to an accident does not preclude compensation for a heart attack. The claimant then goes through an exhaustive repetition of the facts in this case and reiterates the fact that both Dr. Heckman and Dr. Greenberg found that the claimant suffered an infarction on December 18. The claimant argues that it was error for the Commission to ignore Dr. Heckman’s and Dr. Greenberg’s testimony. The claimant then makes the familiar arguments that activity at work only needs to be a cause of the heart attack, that a preexisting condition does not make a heart attack noncompensable, and that a compensable injury will be found upon a showing that a preexisting illness was aggravated by conditions in the workplace.

The employer relies on the testimony of Dr. Buckingham that the claimant suffered no infarction on December 18. The employer also notes the letter that Dr. Heckman wrote, which stated that he believed the claimant’s coronary artery disease was unrelated to his employment. The employer argues that the Commission was faced with a conflict in the evidence and resolved that conflict in favor of the employer. The employer states that the claimant was reduced to rearguing the facts and that the Commission’s resolution of the conflicts in the facts was not against the manifest weight of the evidence.

We find that the Commission was correct in denying compensation to the claimant for this claim. The Commission’s decision was not against the manifest weight of the evidence because of Dr. Buckingham’s testimony. The Commission must choose between conflicting medical testimony and is entitled to draw reasonable inferences from it. (Rambert v. Industrial Comm’n (1985), 133 Ill. App. 3d 895, 477 N.E.2d 1364.) Also, Dr. Heckman testified that if the claimant did suffer an infarction on December 18, it resulted primarily from the infarct in July 1980. The evidence indicates that, as of July 1980, the claimant could have suffered an infarction without any exertion whatsoever. As previously noted, compensation is denied when a claimant’s condition has deteriorated to that point. Surely, then, any infarction following the July 30 accident would also not be compensable, particularly if that infarction was primarily a result of the previous one. The circuit court properly concluded that the Commission’s decision was not against the manifest weight of the evidence.

The final issue is whether the employer received notice of the claimant’s alleged injuries. The employer argues that it did not receive proper notice of any injuries in May or December 1980. The claimant argues that any defect in notice should be waived because the employer failed to provide him with knowledge of his rights under the Act, failed to provide him with the Commission handbook, and because the employer has never raised the issue.

The circuit court properly noted that the issue of notice is only secondary, and first a compensable injury must be found. The evidence in this case indicates that there was no compensable accident. Our conclusion that the findings of the Commission were not against the manifest weight of the evidence renders a discussion of this issue moot.

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

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and RARICK, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM DUNCAN LAND, Defendant-Appellant.
    Fourth District
    No. 4—91—0724
    Opinion filed March 4,1993.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1991, a jury convicted defendant, William Land, of three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)) of his eight-year-old daughter, C.L. The trial court later sentenced him to three consecutive 20-year prison terms. Defendant appeals, arguing that (1) the trial court erred by admitting C.L.’s hearsay statements under section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115— 10), (2) the State failed to prove him guilty beyond a reasonable doubt of two of the three convictions because C.L. testified at trial that the sexual conduct occurred only one time, (3) the trial court erred by not allowing defendant to introduce evidence that other persons had sexually abused C.L., and (4) the trial court committed plain error by failing to instruct the jury on an essential element of the crime charged.

We disagree with all of defendant’s arguments and affirm.

I. Background

Prior to February 1990, defendant, his wife (Joyce Land), C.L. (born in May 1983), and their two sons lived together on Washington Street in Bloomington. In February 1990, the family moved to Olive Street in Bloomington. In August 1990, C.L. went to live in a foster home with Wilma and A1 McLaughlin for reasons that the trial court held were inadmissible and therefore not revealed at trial.

Starting in February 1990, and at the request of C.L.’s public school, C.L. visited weekly with Diana Quick, an outreach caseworker and counselor for McLean County center for human services. As a part of C.L.’s therapy, Quick and C.L. kept a “journal about anything.” Although C.L. could not write, Quick would write whatever C.L. wanted Quick to write in the journal.

On October 6, 1990, Quick and C.L. (then seven years old) discussed what should go in the journal during one of their weekly meetings. C.L. spoke about some books a friend had shown her about insects, noting that these books were “good books,” unlike the books her father owned. When Quick asked her what she meant, C.L. responded that her father’s books “were dirty books that had pictures of men and women with no clothing.” She also told Quick that her father would show the pictures in the books to her and her brothers. C.L. further recalled that her father made her cry when he showed her the pictures, but he would tell her that there was nothing to cry about. C.L. added that he would eventually do “bad stuff [to her], *** like sex.” C.L. remembered that sometimes her mother held C.L.’s arms when her father was doing this “bad stuff” to her and would tell her father to “stop hurting her baby” as she did so.

Because C.L. liked to draw, Quick gave C.L. some markers and paper to draw about these events as she talked about them. As she did so, Quick recalled that C.L. pounded the markers on the paper, breaking three of them. Quick also recalled that “[s]he was crying, stammering, [and] repeating herself frequently.”

Quick then brought C.L. to speak with Detective Michael Fazio of the Bloomington police department. As Quick listened, Fazio asked C.L. if she knew why he wanted to speak with her. C.L. said that she did and told Fazio that her father hurt her by spanking her and having sex with her. C.L. told Fazio that defendant would show her “ ‘dirty, filthy books,’ ” which made her cry. Defendant would then spank her and tell her that “ ‘this is what I do with mom and it’s okay to do it with you[, too].’ ” C.L. told Fazio that her father did these things both when they lived in the house they currently lived in (Olive Street) and when they lived in their previous house (Washington Street).

Fazio asked C.L. to tell him about the last time she had sex with her father. C.L. told Fazio that it occurred in the front room at the Olive Street address. Defendant placed her on the couch, took off her clothes, and then put “it” inside of her, which badly hurt her. Her uncle then knocked on the front door. C.L.’s mother came downstairs to answer the door, saw defendant having sex with C.L., and started hitting defendant, shouting “ ‘[D]on’t hurt my baby.’ ” Defendant stopped, and C.L. and defendant then dressed.

Fazio asked C.L. to elaborate on what she meant by “having sex” by using drawings of a naked, adult white male and a naked, white, female, grammar-school-age child, with front and back views. Because C.L. had said that defendant had hurt her, Fazio asked C.L. what defendant had hurt her with. C.L. circled the penis on the male drawing, calling it his “dick.” Fazio asked C.L. where he hurt her, and C.L. circled the vaginal area of the female, which she called her “tutu.” Fazio asked her if defendant touched her anywhere else. C.L. circled the breast on the female drawing, and said that defendant touched her breast with his breast when he lay on top of her.

Fazio asked her if defendant touched her anywhere else. C.L. pointed to the male’s penis and then circled the female’s buttocks, saying that he “ ‘puts it in there,’ ” clarifying that “it” meant defendant’s penis. Using a ballpoint pen and its cap to demonstrate what “in” and “out” meant, C.L. demonstrated that when she said defendant “put it in there,” she meant that defendant penetrated her vagina and her anus with his penis.

C.L. also told Fazio that defendant would kiss her on the lips. Fazio asked her if defendant ever put his penis in her mouth, to which she responded “no.” He also asked her if she remembered any dates, using holidays and birthdays as reminders, but C.L. could not remember any specific dates.

After speaking to C.L., Fazio went to defendant’s residence on Olive Street. After Fazio advised defendant of C.L.’s accusations and his Miranda rights, defendant voluntarily accompanied Fazio to the Bloomington police station. Defendant accused Fazio of making up the accusations, claiming that Fazio merely wanted to harass his family. He denied keeping any pornographic books in his house or any books that contained pictures of naked men and women and challenged Fazio to search his house. Fazio took defendant up on his offer and asked defendant to sign a departmental form indicating that defendant consented to the search. Defendant did so. Fazio then placed him in a cell and returned to defendant’s residence to search it.

When he arrived at defendant’s residence, Fazio met defendant’s wife. He informed her that he had arrested defendant and told her that defendant had consented to a search. Fazio asked for her consent, which she gave by signing the consent form below defendant’s name.

Fazio first searched defendant’s bedroom because C.L. had told him that defendant kept his “dirty books” and magazines there. Fazio found two Penthouse magazines, a paperback book entitled “Sex in Later Life” that described sex acts in text, and a small Copenhagen chewing tobacco can that contained a pipe-cleaner bent into a figure of a person masturbating. One Penthouse magazine also had two additional pages of pictures from another magazine showing men and women engaging in sex acts.

Fazio returned to the police station and confronted defendant with these items. Defendant then accused Fazio of planting the items in his home.

A grand jury thereafter indicted defendant on three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14). Two counts alleged sexual penetration involving defendant’s penis and C.L.’s vagina between January 3 and August 3, 1990, and the other count alleged sexual penetration involving defendant’s penis and C.L.’s anus.

Before trial, the trial court conducted a hearing pursuant to section 115 — 10(b)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115— 10(b)(1)) to determine whether Fazio, Quick, and C.L.’s foster mother, Wilma McLaughlin, could testify about hearsay statements made by C.L. regarding these accusations. Fazio, Quick, and McLaughlin all testified at this hearing, and the court found these hearsay statements admissible.

At trial, Fazio and Quick both testified to the above facts. When C.L. testified, she became scared and initially testified that she could only remember one incident where her father gave her a “French kiss” on the mouth. Although she initially testified that she “forgot” about any other incident where defendant would touch her, the prosecutor reminded her of her conversation with Detective Fazio. Through leading questions, C.L. answered that defendant did touch her with his private parts. However, C.L. again stopped, saying that she “forgot” what had happened. When asked if she understood that “it’s important here today to talk about that and tell these people what happened,” C.L. responded “no.”

The judge asked the jury to leave the courtroom for a moment and gave the prosecutor a chance to speak to C.L. on the record in the jury’s absence. C.L. then admitted that she felt scared to talk in front of the jury about what had happened. When asked if she could be “strong enough” to talk about it, she initially said “no” but eventually said that she would try. Before the jury returned, defense counsel raised the issue of C.L.’s competency but did not object to her competency. Nonetheless, the court still formally ruled C.L. competent to testify.

The jury returned, and C.L. testified that defendant touched her “[tjhis place, and the bottom in the back,” using her hand to point to where she meant. However, when asked if she had words for those places, she responded, “No, I forgot.” The prosecutor then asked her to circle the parts she meant on drawings of a naked male adult and a naked female child. C.L. circled the man’s penis and the child’s vagina. However, after further questioning, C.L. said that he did not put his penis “inside” of her, and that it stayed “outside.”

The prosecutor asked her if he touched her anywhere else. C.L. responded that he did not. Then the prosecutor showed her a drawing of the back view of a naked female child and asked C.L. if she knew what it was. C.L. responded it was her bottom. The prosecutor asked her if defendant had touched her there, and C.L. responded that he did with both his penis and his hand. Using the drawing, C.L. demonstrated that defendant had placed his penis along the fold between her buttocks. She said that he did not put his penis inside her, although she did admit that it hurt when he placed his penis there.

C.L. then testified that this conduct happened only once. The prosecutor asked her if she remembered telling Detective Fazio, Diana Quick, and her foster mother that it had happened more than once, and C.L. responded that she did. However, as she testified, she said that she could only remember it happening once. She also testified that it happened only when they lived on Washington Street. The prosecutor then questioned her about the dirty pictures. After explaining that her father would show her the pictures and that she told him that she did not like looking at them, she froze up again when asked how her father would respond or react after that.

C.L. also testified that her mother did not know about what defendant would do to her, although she then admitted that her mother walked in on them once. When asked what her mother did when she walked in, C.L. changed her reply to, “No, she didn’t. *** No, she didn’t say anything because she wasn’t there, either.” Thereafter, C.L. again became unresponsive until the prosecutor asked C.L., “Do you think things happened to you that you *** can’t tell us today?” C.L. responded, “Yes.” She also said that the things she told her foster mother, her foster father, Detective Fazio, and Diana Quick did happen.

C.L. was equally uncooperative on cross-examination. However, she did again testify that defendant touched her with his penis only once. Defense counsel also asked her if she got mad when her father would punish her. C.L. responded that she did, but when asked if she ever made up any stories about her father because she was mad at him, she said she did not.

C.L.’s foster mother, Wilma McLaughlin, testified that she had two daughters of her own, the youngest of whom shared a bedroom with C.L. She characterized C.L. as someone who could remember things well, but only when her memories were triggered by certain events. When those reminders happened, C.L. would tell what she remembers without much hesitation.

McLaughlin testified that C.L.’s telling her about what defendant had done to her was one such instance of C.L. suddenly revealing memories in great detail. The same day that C.L. told Quick about what defendant had done, C.L. also told McLaughlin’s youngest daughter. The daughter immediately came to McLaughlin saying “ ‘Mom, [C.L.] was telling [me] something I think she needs to tell you.’ ” McLaughlin then testified to the following:

“[C.L.] came down, and *** told me how her dad had been on top of her and her mother had come in and had taken a hold of [C.L.j’s arm while her dad was on top of her. They were on a bed, and [C.L.] was on her back, *** her father was on top of her, and her mother came in and took a hold of her. She demonstrated this [while] [w]e were in the kitchen[.] [S]he held her arms up *** and demonstrated to me how she was held[.] [S]he said her arms were over her head and she was leaning backwards over the bed ***. And I asked her if her mother was holding her, and she said [her mother] was trying to pull her out from under him. *** [T]he same night[,] when I was putting her to bed[,] I asked her where she lived when her dad did this to her[.] ***
*** I asked her if she lived on West Olive or on West Washington, and she said both. And I said, ‘You mean he did it two times?’ ” And she said, ‘He did it lots of times at both houses.’ ”

McLaughlin added later that C.L. said that her mother was yelling “ ‘What are you doing to my baby’ or *** ‘Stop doing that to my baby.’ ” She added that C.L. never told her anything more specific, such as whether sexual penetration had occurred, and McLaughlin did not ask for further specifics.

Defendant testified that he never had any sexual contact with C.L. He claimed that they had a normal, close, loving relationship, and that sometimes she would kiss him “out of the blue” just to tell him that she loved him. He added that she had called him her “pony” because he gave her rides on his shoulders. He did not understand why she made the allegations that she had. He added that he rarely punished her, only making her sit down for a half hour to an hour as the most severe punishment. He claimed that he never spanked her or physically punished her.

Regarding the pornographic magazines, defendant claimed that he did not know the books were under his mattress when he signed the consent form. However, he admitted that he had found them there a few days before he was arrested as he looked for the soap opera digest that he kept under his mattress (even though he testified earlier that he could not read). He said that he saw the cover of a pornographic book but did not look inside. When shown the book at trial, he said, “I think it was this one, [but] I’m not for sure.”

Defendant claimed that the magazines and book belonged to his wife’s brother, Robert Arnold. Defendant explained, “He comes around [to my house] drunk, and he’s got them with him in this little red bag. And he leaves them. I tell him not to leave them, you know. I don’t want them around there. But he gets drunk, and he does that.” Defendant added that he did not want them in his house because “I just don’t believe in that kind of filth.”

Defendant also testified that he willingly spoke to Fazio and consented to the search of his house because he did not remember that the magazines were under his mattress. He claimed that he had a memory disorder that caused him to unexplainably forget things “every couple days.” He also denied accusing Fazio of planting the magazines and book in his bedroom, and claimed instead that, in a fit of anger, he merely told Fazio that he would sue Fazio if Fazio did not let him go.

Defendant’s wife corroborated defendant’s claim that her brother had left the pornographic material at their house when he was drunk. She testified that she had found them in her house and put them between the mattress and box springs of her bed. Although she claimed that she disliked pornography because it exploits women, she did not throw the magazine and book away because “[t]hey were [my brother’s] property and I figured he’d be back and want them.” She claimed also that her children had never seen the book or magazine because they could not go in her bedroom.

Mrs. Land also added that she never caught defendant molesting C.L., nor did she ever find him on top of her. She added that she and defendant had a good relationship. Indeed, she claimed that she — not defendant — mostly disciplined C.L., and that C.L. would go to defendant to get things when she would refuse. They also went on family outings frequently.

Based on the above evidence, the jury convicted defendant of all three counts of aggravated criminal sexual assault.

II. Analysis

A. Hearsay Statements Admitted Pursuant to Section 115 — 10

Because of the problems C.L. experienced testifying at trial, defendant’s convictions depended in large part on the hearsay statements made by C.L. to Fazio, Quick, and McLaughlin. Defendant first argues that the trial court erred in admitting these statements under section 115 — 10 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). That section states the following:

“(a) 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, pars. 115 — 10(a), (b).

For clarity, we will detail the testimony presented at the section 115 — 10(b)(1) hearing because the trial court must determine whether the time, content, and circumstances provided sufficient safeguards of reliability based solely on the testimony presented at that hearing. See People v. Back (1992), 239 Ill. App. 3d 44, 47-51.

1. Testimony Presented at the Section 115 — 10 Hearing

At the hearing, the State called Fazio, Quick, and McLaughlin, who all testified that C.L. had told them that defendant had molested her. The State first called Fazio, who testified that he had previously talked to C.L. twice before about two other men who had molested her. On October 6, 1990, Quick reported to Fazio that C.L. had told Quick about her father also molesting her. Fazio thus spoke to C.L. that afternoon in an interview room at the Bloomington police station.

While Quick sat and listened to their conversation, C.L. told Fazio that she knew why she was there, and started telling Fazio that three men, including her father, had molested her. Regarding her father, C.L. said that he had engaged in sex with her, which she said had “ ‘hurt’ ” her. C.L. also said that her father had shown her dirty, filthy books that made her cry. When she cried, her father spanked her.

Fazio added that he asked C.L. what she meant by “having sex,” and C.L. told him about an incident that occurred on their couch in their home on Olive Street in Bloomington. While her father was “ ‘doing it,’ ” her Uncle Donnie knocked on the door. Her mother came down to answer the door and caught defendant having sex with C.L. Her mother started hitting her father and tried to pull C.L. out from under him. They then stood up, dressed, and answered the door.

Fazio continued that he used anatomically correct drawings of a naked male adult and a naked female child to help C.L. identify body parts and what she considered as “having sex.” C.L. circled the male penis, which she called a “dick,” and circled her vaginal area, saying that her father put his dick “ ‘inside’ ” her “ ‘tutu.’ ” Fazio asked her if any other contact occurred. She said it did, and circled the breasts on the female child drawing. She then circled the breasts of the male drawing, explaining, “ ‘Well, that happens when he lays on me.’ ” She also circled the mouth, saying that her father kissed her. Because she also had told Fazio that another of the men who had molested her had placed his penis in her mouth, he asked her if her father had done so, as well. She responded that her father had not.

Fazio initially did not remember her complaining about anal sex. However, after rereading his report, Fazio added that C.L. also demonstrated on the drawings and told him that her father had placed his penis in her anus, and that it also hurt.

On cross-examination, defense counsel attempted to prove that C.L. had confused her father with the other men who had molested her. Fazio testified that C.L. had since told him that a total of six men had molested her, including her father and her older brother. However, Fazio testified that he had opened the interview with a question asking C.L. if she knew why she was there and she responded, “ ‘Because of what I told Diane.’ ” When Fazio asked what she told Diane, C.L. responded “ ‘Dad has sex with me.’ ”

Regarding C.L.’s demeanor during the interview, defense counsel asked Fazio if she appeared emotionally distressed in any way. Fazio did not respond, and defense counsel followed up by asking if C.L. cried or asked for help from Quick, to which Fazio responded that she did not. Instead, Fazio testified that when C.L. remembered an incident, she appeared very sure of what she had said.

Fazio testified that C.L. could not specify any dates. He had estimated the dates on his report from the time periods in which she lived at the locations at which she claimed the sex had occurred.

Fazio concluded by clarifying that he generally conducted nonleading interviews in which he would let the child control the interview. If the child left certain things unaddressed or unclear, he would then ask for clarification, as he did with C.L., when he asked her what she meant when she said that her father had sex with her.

Quick testified to her background counseling troubled children and about what C.L. had told her about defendant. Quick testified that she began working with C.L.’s entire family and meeting with C.L. individually at the end of February 1990. Regarding C.L., teachers had reported that she frequently talked about blood and violence, wet her pants in school, and drew sexually explicit pictures with exaggerated bodily parts, including pictures with babies in her stomach.

Quick met with C.L. weekly from February 1990 to October 1990. She described the October 6, 1990, meeting with C.L. in which C.L. first told Quick about her father’s molesting her. The subject came up during a conversation about their “journal-about-anything.” As they spoke about some “good” pictures of insects that a friend of hers had shown her, C.L. noted how they differed from the “bad” pictures her father showed her. C.L. added that her father had sex with her after showing her the pictures, that it occurred at nighttime at their Washington Street address, and that her mother had held C.L.’s arms as she told C.L.’s father to “stop hurting her baby.” She also told Quick that her uncle had knocked on the door, whereupon they stopped and pulled up their pants. However, C.L. did not use more specific terms than “sex,” and Quick did not ask her to specify what she meant.

Quick indicated that C.L. spoke in an “echoic” manner when describing these things, meaning that C.L. would repeat, “ ‘he did bad stuff, he did bad stuff, he did bad stuff,’ echoing her pattern of speech.” Quick observed from this behavior and what C.L. said that C.L. felt scared to talk about it. She also related that as C.L. drew a picture about it, she broke three markers by pounding them against the paper.

Quick returned C.L. to her foster home, reported C.L.’s allegations to an Illinois Department of Children and Family Services (DCFS) social worker, and later brought C.L. to the police station to speak with Fazio. Quick then corroborated some of Fazio’s testimony regarding what C.L. had told Fazio, particularly that C.L. had demonstrated what her father did by circling bodily parts on anatomical drawings.

However, instead of stating — as Fazio did — that C.L. appeared sure as she spoke, Quick testified that C.L. “appeared nervous and had trouble standing still.” Quick said that C.L. also spoke in a echoic manner when talking to Fazio. Quick also testified that C.L. gave long, extensive, and descriptive answers to Fazio’s questions, and did not limit her answers to “yes” or “no.”

McLaughlin also testified at the section 115 — 10 hearing. Similar to her testimony at trial described earlier, she testified that C.L. first told her about her father’s molesting her on October 6, the same day C.L. spoke to Fazio and Quick. C.L. first told McLaughlin’s daughter, who said to McLaughlin that C.L. “ ‘told me something that I think she needs to tell you about her mom holding her.’ ”

McLaughlin testified that C.L. then told McLaughlin about her father’s molesting her, and that the molesting had occurred at both her home on Washington Street and her home on Olive Street. McLaughlin then asked C.L. if it had happened twice, and C.L. responded, “ ‘No, he did it lots of times at both houses.’ ” McLaughlin also testified that C.L. told her about the specific incident when her mother had tried to pull C.L. out from under her father as he “ ‘was doing bad things to me.’ ” McLaughlin added that C.L. did not use any terms more specific than “having sex,” and that she tried not to ask C.L. for more specific details, even though C.L. had spoken about details in “street terms” when describing what other men had done to her.

About a month later, C.L. again talked to McLaughlin about C.L.’s father’s molesting her. As it rained outside, C.L. spoke about a time when she ran with her father to the house of a family friend. McLaughlin asked C.L. if the person to whose house they ran had ever done anything to her, and C.L. responded that he had not done anything to her, unlike father, who had done bad things to her.

McLaughlin added that C.L. sometimes thereafter added clarifying details to what happened, such as that her mother said, “Stop hurting my baby,” as she pulled on C.L.’s arms. McLaughlin also testified about how certain things or events would trigger C.L.’s memory, whereupon she would elaborate in great detail about what she remembered, likening it to a “flood of memorfies].”

At the end of the hearing, defense counsel emphasized two factors in arguing that the time, content, and circumstances of C.L.’s statements did not provide sufficient safeguards of reliability. First, defense counsel argued that no inference should arise from C.L.’s vocabulary. Although defense counsel acknowledged that a seven-year-old using sexually explicit language can indicate that her allegations are true, here C.L.’s vocabulary instead came from the fact that other men — who had pleaded guilty at the time of this hearing to molesting C.L. — had molested C.L.

Second, defense counsel also emphasized the difference between Fazio’s and Quick’s descriptions of C.L.’s demeanor at the initial police station interview. Defense counsel admitted that this difference did not negate that C.L. actually said the words that comprised the allegations, but argued that it did negate the reliability of her allegations.

Based on the above evidence, the trial court found that the time, circumstances and content of what C.L. had told Fazio, Quick and McLaughlin all indicated the reliability of those statements. The trial court therefore held them all admissible under section 115 — 10 of the Code.

2. Analysis

a. Standard of Review

In People v. Deavers (1991), 220 Ill. App. 3d 1057, 1069, 580 N.E.2d 1367, 1375, this court held that a trial court’s determination that out-of-court statements under section 115 — 10 of the Code were admissible would not be overruled unless that decision was “contrary to the manifest weight of the evidence.” Similarly, the Fifth District Appellate Court held that this standard of review applies to section 115 — 10 cases. (People v. McMillan (1992), 231 Ill. App. 3d 1022, 1031, 597 N.E.2d 923, 928.) However, since Deavers and McMillan, the supreme court has stated that the standard of review of a trial court’s decision to admit hearsay statements under section 115 — 10 does not differ from the standard of review generally applied to a trial court’s decision on the admissibility of any evidence. (People v. Zwart (1992), 151 Ill. 2d 37, 44, 600 N.E.2d 1169, 1172.) In Zwart, the supreme court characterized a trial court’s finding pursuant to section 115 — 10 as an ordinary evidentiary question and further stated that “questions regarding the admissibility of evidence lie within the discretion of the circuit court. A reviewing court may overturn a trial court’s determination only when the record clearly demonstrates that the court abused its discretion.” (Zwart, 151 Ill. 2d at 44, 600 N.E.2d at 1172.) Thus, we decline to apply the standard of review set forth in Deavers and McMillan and instead will apply the supreme court’s standard set forth in Zwart.

b. Section 115 — 10 Hearsay

Admitting hearsay statements denies a defendant the opportunity to cross-examine the out-of-court declarant, thereby implicating the defendant’s right to confront the witnesses against him. (See People v. West (1992), 234 Ill. App. 3d 578, 585-88, 598 N.E.2d 1356, 1361-63; People v. Coleman (1990), 205 Ill. App. 3d 567, 579-84, 563 N.E.2d 1010, 1018-21.) Therefore, the standards regarding the right to confrontation provide guidance on how to interpret the requirement of section 115 — 10 of the Code that the trial court find that the time, content, and circumstances of the hearsay statements provide sufficient safeguards of reliability.

In Idaho v. Wright (1990), 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146, the United States Supreme Court held that incriminating hearsay statements made by a child victim of sexual abuse must meet two requirements before they are admissible: (1) in the usual case, the prosecution must either produce the declarant or demonstrate the declarant’s unavailability; and (2) the statement must bear adequate “indicia of reliability.” Such “indicia of reliability” can come from the statement’s fitting into one of the firmly established hearsay rules or by “a showing of particularized guarantees of trustworthiness.” Wright, 497 U.S. at 816, 111 L. Ed. 2d at 653, 110 S. Ct. at 3147.

The Court concluded that “the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.” (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3148.) In particular, a court should not consider corroborating evidence when evaluating the facial reliability of the hearsay statements, but should solely evaluate the circumstances when the child-declarant made the statements. (Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) The Court listed some factors to consider when determining the reliability of such hearsay statements, including, but not limited to, (1) spontaneity and consistent repetition, (2) the mental state of declarant, (3) use of terminology unexpected of a child of a similar age, and (4) lack of motive to fabricate. Wright, 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.

In Coleman, this court held the following regarding Wright’s impact on section 115 — 10 of the Code:

“[T]he required finding [under section 115 — 10(b)(1)] that the statement provides ‘sufficient safeguards of reliability’ must be understood to be of a comparable nature with a finding that the circumstances of the statement render the declarant ‘particularly worthy of belief’ and, in reaching this decision, the court must consider only those circumstances which surround the making of the statement.” Coleman, 205 Ill. App. 3d at 584, 563 N.E.2d at 1021.

In this case, defendant argues that the timing and content of the statements did not provide sufficient safeguards of reliability such that C.L.’s statements are particularly worthy of belief. Regarding the timing, defendant emphasizes both that C.L. made her allegations after eight months in a foster home and that C.L. did not mention her father’s molesting her when she had previously reported that two other men had molested her. Regarding the content, defendant emphasizes that C.L. did not provide much specific information, nor could she provide any specific dates, even when asked to use holidays and birthdays for comparison. Indeed, Fazio admitted that he had compiled the dates in the charges based only upon when C.L. lived at the two addresses at which she claimed her father molested her. Defendant does not argue on appeal (as defense counsel argued at the hearing) that the purportedly inconsistent accounts of C.L.’s demeanor at the October 6, 1990, police station interview make her statement unreliable.

The State initially responds that defendant has waived any challenge to McLaughlin’s testimony. At the section 115 — 10 hearing, defense counsel concluded her closing remarks by stating the following:

“With regard to the foster mother, [Wilma McLaughlin,] I don’t have any reason to question the reliability of statements made to her, and I think in fact they are reliable.”

We agree that defendant has thus waived any challenge to McLaughlin’s testimony.

The State also argues that the defendant improperly raises on appeal different theories (as described above) concerning the unreliability of C.L.’s statements than the theories defense counsel argued at the section 115 — 10 hearing. We agree that doing so deprived the trial court of the opportunity to specifically address each of the claimed discrepancies, and thereby deprives us of the trial court’s insight from its inherently better vantage point. Nonetheless, the testimony at the hearing revealed all these discrepancies. The trial court thus knew of them and tacitly rejected them by holding that the time, content, and circumstances provided sufficient safeguards of reliability. We cannot say that the trial court abused its discretion in so holding.

Regarding the timing, the purported eight-month delay in C.L.’s reporting of her father’s actions does not inherently undermine the reliability of C.L.’s statement, especially in light of the fact that defendant was her father. (See People v. Booker (1992), 224 Ill. App. 3d 542, 552-54, 585 N.E.2d 1274, 1282-83 (hearsay statements reliable despite four-year delay, holding that “[promptness in reporting the abuse is not an element of section 115 — 10”).) First, the delay, if any, was at most eight months. C.L.’s family moved to Olive Street in February 1990, and C.L. told Fazio, Quick, and McLaughlin that the molesting occurred at both addresses in October 1990; therefore, the Olive Street incidents must have happened within eight months of C.L.’s first reporting them. On the other end of the spectrum, the shortest possible delay was two months, the time between C.L.’s moving to a foster home and her reporting the incidents.

Second, the jury knew of the delay and could fully assess its impact on C.L.’s credibility. The delay is an objective fact, the importance and impact of which do not depend on whether the statements come in through direct testimony or indirect hearsay testimony.

Third, the fact that defendant is C.L.’s father fully explains the delay. As opposed to a situation where a neighbor or a baby-sitter allegedly molests a child-victim, a child-victim’s father ordinarily holds such an important and revered position in a child’s life that the child victim of sex abuse rarely realizes that anything “bad” has happened; or, if the victim does realize it, a child’s reporting that a parent has sexually abused him or her must be extraordinarily difficult and traumatic, given the almost certain family disruption that will surely follow. Accordingly, we do not find it surprising that C.L. first revealed such abuse in casual conversation with her counselor a few months after being separated from her family and placed in foster care.

Regarding the fact that C.L. did not mention her father when she reported the two other men, the jury could not assess the impact of this testimony because evidence of C.L.’s prior sexual activity — including the fact that others had sexually molested her — is inadmissible under the rape-shield statute. (See Ill. Rev. Stat. 1989, ch. 38, par. 115— 7.) However, we do not find that this discrepancy inherently undermines the reliability of C.L.’s statements. We refuse to hold that child victims must report all incidents of sexual abuse at the same time or forever be barred from having the courts consider their subsequent allegations reliable or “particularly worthy of belief.” Although a court should consider this factor’s impact in the overall assessment of the reliability of a child-victim’s allegations, this factor does not automatically render the statements inadmissible under section 115 — 10 of the Code. Here, the trial court did not find that this factor undermined the reliability of C.L.’s statement. We do not consider that decision an abuse of discretion.

Regarding the purported lack of specific details or dates in C.L.’s allegations, we disagree that these discrepancies exist. C.L. described to Fazio that defendant inserted his penis in her vagina and her anus by circling those body parts on anatomical drawings and saying defendant hurt her by putting his penis “inside” her. Although more details might have further bolstered the reliability of C.L.’s statements, the details C.L. provided did make the statements sufficiently reliable.

Furthermore, because C.L. told Fazio, Quick, and McLaughlin that her father had sex with her at both her Olive Street and Washington Street residences, she did mark two time frames in which the events occurred. The State charged defendant only with two counts of vaginal sex based on these two time frames, even though C.L. vaguely told McLaughlin that defendant “did it lots of times at both houses.” Thus, the lack of specific dates helped defendant more than it harmed him in that, first, their absence did not undermine the reliability of C.L.’s statements at all, and, second, their absence limited the State to merely two charges of vaginal sex and one charge of anal sex.

Finally, these purported discrepancies did not outweigh the other clear indicia of reliability, including but not limited to the following: C.L. appreciated the importance of the allegations; C.L. appeared disturbed to reveal this information, especially when talking initially to Quick; C.L. greatly trusted the people to whom she spoke; Fazio generally did not ask leading questions except to clarify details; C.L. described what happened without much prompting; and C.L. limited her allegations to anal and vaginal sex, even when specifically asked if defendant had inserted his penis in her mouth as other men had done. We also find her description of the one event that she did describe in detail — where her mother caught her father molesting her, started hitting her father, grabbed C.L.’s arms to pull C.L. out from under him, and shouted, “Stop hurting my baby” — especially vivid and facially reliable. These factors, dealing with the time, content, and circumstances of C.L.’s allegations, support the trial court’s determination that the hearsay statements made by C.L. to Fazio, Quick, and McLaughlin provided sufficient safeguards of reliability. Therefore, we do not find that the trial court abused its discretion in admitting those statements under section 115 — 10 of the Code.

B. Insufficiency of the Evidence Regarding Two of Defendant’s Convictions

Defendant next argues that the State failed to prove him guilty of two of the three counts of aggravated criminal sexual assault because C.L. testified at trial that “he only did it one time” at their Washington Street address, and denied that she told Fazio or anyone else that it happened more than once. We disagree.

The Illinois Supreme Court has recently stated the following standard for reviewing the sufficiency of the evidence:

“When faced with a challenge to the sufficiency of the evidence, the reviewing court applies the reasonable doubt standard as set forth in People v. Collins (1985), 106 Ill. 2d 237, 261[, 478 N.E.2d 267, 277]. This standard, derived from Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, does not require the court to “ ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” (Emphasis in original.) [Citation.] [Instead], the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261[, 478 N.E.2d at 277; citation].) *** The standard gives ‘full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ (Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789[; citation].)” (People v. Campbell (1992), 146 Ill. 2d 363, 374-75, 586 N.E.2d 1261,1265-66.)

Therefore, a reviewing court will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses, and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as to create a reasonable doubt of the defendant’s guilt. Campbell, 146 Ill. 2d at 375, 586 N.E.2d at 1266; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

Although defendant correctly points out that C.L. repeatedly testified at trial that “he did it only one time,” defendant has selectively quoted from portions of C.L.’s testimony. As outlined above, C.L. had a very difficult time testifying. (At one point while on the witness stand, she turned her back to the courtroom, and the prosecutor needed to ask her to turn around.) In addition, C.L. retracted her statement that she told Fazio that it only happened once, and testified that the things she had told Fazio — -as well as the things she had told her foster parents and Quick — did happen. C.L. also testified at trial that she did not make up stories about her father because she was mad at him. C.L.’s foster mother testified that C.L. could remember things well, but only when her memories were triggered by certain events. Finally, the jury witnessed C.L.’s demeanor at trial, and could weigh her testimony along with the testimony of Fazio, Quick, and McLaughlin, who all testified that C.L. told them that defendant engaged in both vaginal sex and anal sex with her several times at both houses. Therefore, viewed in the light most favorable to the prosecution, the evidence at trial sufficiently supported all three of the jury’s verdicts.

C. Evidence That Other Men Had Molested C.L.

Defendant next argues that the trial court erroneously excluded all evidence that other men had molested C.L. The court based this ruling on the rape-shield statute (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7). Defendant attempts to distinguish this case from the ordinary case where a defendant might try to admit evidence of prior sexual activity by arguing that defendant here did not seek to introduce this evidence to show the victim’s consent. Instead, defendant argues that the evidence was relevant to whether C.L. had confused defendant with another person. Defendant thus argues that “the trial court’s ruling contravened the purpose of the rape[-]shield statute and violated defendant’s constitutional right to present a defense.”

In pertinent part, the rape-shield statute provides the following:

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

The statute does not limit its protection to evidence of consent, but instead clearly bars the admission of prior sexual activity — except the prior sexual activity between the accused and the alleged victim — for any reason. (See People v. Sandoval (1990), 135 Ill. 2d 159, 170-71, 552 N.E.2d 726, 731; People v. Bell (1991), 217 Ill. App. 3d 985, 1004, 577 N.E.2d 1228, 1242.) We therefore reject defendant’s attempt to narrowly construe the rape-shield statute as limited to prohibiting using the victim’s prior sexual activity as evidence of consent.

Defendant also argues that excluding this evidence denied him his constitutional right to confrontation. (U.S. Const., amend. VI.) Initially, we question the likelihood that C.L. could have confused her own father with the other men who molested her. Moreover, defendant did not make an offer of proof by asking C.L. on the record (but away from the jury) whether she could have confused defendant with other men. Despite C.L.’s trouble testifying, she might have dispelled any doubt over this purported confusion, especially outside the presence of the jurors, whose presence likely contributed significantly to C.L.’s discomfort on the witness stand.

Defendant’s posture on appeal is to ask this court to reverse his conviction and remand for a new trial in the hope that C.L. at the new trial might reveal some confusion over whether her father sexually assaulted her, as did some other men. However, offers of proof are designed to eliminate such speculation and not only to give the trial court the opportunity to better understand the nature of the proffered evidence — and thereby reevaluate its prior ruling — but also to give courts of review the opportunity to see precisely the nature of the evidence the appellant complains the trial court improperly excluded. By failing to present an offer of proof on this point, defendant has waived this argument on appeal. In so holding, we are mindful of People v. Andrews (1992), 146 Ill. 2d 413, 420-21, 588 N.E.2d 1126, 1131, where the supreme court addressed the defendant’s argument that the trial court wrongly excluded his proffered evidence and wrote the following:

“It is well recognized that the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court. [Citations.] The purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper. [Citation.] The failure to make an adequate offer of proof results in a waiver of the issue on appeal.” (Emphasis added.)

Because of defendant’s failure to make an offer of proof at trial, this court cannot know the nature of the evidence defendant claims the trial court wrongly excluded. We decline to speculate what an offer of proof might have revealed; thus, we have no basis upon which to conclude that the trial court erred in depriving defendant of the opportunity to show the jury C.L.’s alleged confusion or uncertainty about who sexually assaulted her.

Defendant also argued at the trial level that he was concerned that the State would present a closing argument that C.L., a child of tender years, would have no other way to be acquainted with sexual terminology and experiences other than to have engaged in such acts with defendant. Defendant argued that such an argument by the State would mislead the jury because the court and parties knew that the other three men had pleaded guilty to sex offenses involving C.L.

In denying defendant’s request to reveal C.L.’s sexual involvement with these other three men, the trial court acknowledged the defendant’s concerns regarding possible argument by the State about C.L.’s knowledge of sexual experiences and terminology. The court stated the following:

“If the State attempts to *** assert that the complaining witness wouldn’t have *** knowledge of this, wouldn’t use this terminology in some other fashion but for the defendant’s activities, then it seems to me that the State has taken unfair advantage of the defendant, and at that point I’m going to have to look very carefully. [So] I’m trying to *** warn both of you ahead of time [about the State’s doing so.]”

We believe the trial court appropriately handled this aspect of defendant’s argument, and our review of the State’s closing argument reveals that the argument the defendant was concerned about was never made. We also note that defendant never even raised this issue in his post-trial motion.

D. Jury Instruction on Mental State

Defendant next argues that his conviction must be reversed because the jury instructions for criminal sexual assault did not include a mental state. However, defendant waived this issue for review because he failed to object at trial or in his post-trial motion. We also find that the instructions given do not constitute plain error. (See People v. Smith (1991), 209 Ill. App. 3d 1043, 1060, 568 N.E.2d 482, 493.) We have previously ruled that a mental state instruction is not required when instructing the jury on the elements of aggravated criminal sexual assault. Smith, 209 Ill. App. 3d at 1061, 568 N.E.2d at 493; People v. Burton (1990), 201 Ill. App. 3d 116, 122, 558 N.E.2d 1369, 1374.

III. Conclusion

For the reasons stated, we affirm defendant’s convictions.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.