author: PRESIDING JUSTICE WOMBACHER delivered

text:
    PARK PLAZA, INC., Plaintiff-Appellant, v. LINCOLNLAND PROPERTIES, INC., et al., Defendants-Appellees.
    Third District
    No. 3-88-0451
    Opinion filed April 3, 1989.
    Rehearing denied July 12, 1989.

      Larry J. Ratzel, of New Berlin, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Edward R. Green, Special Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE WOMBACHER delivered

the opinion of the court:

The plaintiff appeals the trial court’s order dismissing its complaint and cause of action with prejudice.

In March of 1967, Russell Lesperance (hereinafter Lesperance), a shareholder in several corporations owning seven apartment complexes, contacted W. Joseph Gibbs (hereinafter Gibbs) concerning the sale of these properties. Gibbs was the principal incorporator of Lincolnland Properties, Inc. (hereinafter Lincolnland), the defendant herein.

Lincolnland Properties, Inc., contracted to purchase seven apartment projects from Lesperance. Two apartment projects in question were situated in Peoria County, Illinois, and were commonly known as Golfview 42 and Golfview 24, and are the subject of this appeal. Lincolnland executed a $60,000 promissory note for Golfview 42 and a $30,000 note for Golfview 24 to the seller. Subsequent to the execution of these promissory notes, the corporate sellers assigned their interest in all these properties to Ginkids Investments, Inc. The plaintiff, Park Plaza, Inc. (hereinafter Park Plaza), is the successor to Ginkids Investments, Inc.

Lincolnland believed it could not operate the apartment properties without refinancing a second mortgage on several of the properties in question through Lesperance. If refinancing could not be obtained by Lesperance by March 1, 1968, some of the properties in question were to be paid by applying one-half of the net cash flow to the purchase price according to a modification agreement executed on October 5, 1967. Lesperance could not obtain a refinancing commitment and refused to acknowledge the validity of the October 5, 1967, agreement. Lincolnland commenced an action in Sangamon County, known as Lincolnland v. Butterworth, case No. 179 — 69, to enforce the provisions of the October 5, 1967, agreement.

The trial court upheld the validity of the agreement of October 5, 1967, and also found that Lincolnland paid the notes on several of the properties (not including Golfview 24 or Golfview 42) in accordance with the October 5, 1967, agreement. The court also ordered Lincolnland to pay the holders of the notes covering Golfview 24 and Golfview 42, which Lincolnland did and acquired title to same. The Sangamon County circuit court’s decision was upheld by the Fourth District Appellate Court in Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907, 382 N.E.2d 1250.

On December 3, 1984, Park Plaza filed suit in Peoria County, the subject of the present appeal. Lincolnland responded with a “Motion to Dismiss or in the Alternative, to Transfer Venue.” The Sangamon County circuit court issued a permanent injunction on March 21, 1985, enjoining Park Plaza from proceeding with this action in Peoria County. The court held that all the rights and liabilities between the parties, including those pertaining to Golfview 24 and Golfview 42, as well as the contracts, notes, agreements, and payment rights pertaining thereto, have been fixed by previous decisions of the Sangamon County circuit court. The Fourth District Appellate Court dismissed the appeal of this injunction for lack of jurisdiction. Thereafter, the Sangamon County circuit court issued a final order resolving the remaining issues in this cause and held Park Plaza was the alter ego of the other plaintiffs who filed suit throughout Illinois and should be treated as the same entity. The permanent injunction remained in effeet indefinitely.

This injunction barred all similar proceedings against Lincolnland within and without Illinois. The subsequent causes of action, including the Peoria County action, are barred by res judicata and collateral estoppel.

The circuit court of Peoria County dismissed Park Plaza’s complaint because Park Plaza could not establish it was not subject to the permanent injunction of the Sangamon County circuit court. Park Plaza contends the Sangamon County circuit court’s order of March 21, 1985, should not prohibit the Peoria County action from proceeding. We disagree and affirm the circuit court of Peoria County.

In each case filed against Lincolnland subsequent to the issuance of the permanent injunction, the plaintiffs, including Park Plaza, have been held to be the alter ego of Ginkids Investments, Inc., the assignee of the original owners. Park Plaza was also a party to an appeal from which a final order barred it from proceeding with a similar action. The Sangamon County circuit court found that the Peoria County action is also barred by release because Lincolnland paid Ginkids in full for the notes covering Golfview 24 and Golfview 42.

Park Plaza initially claims that the Sangamon County orders of March 21, 1985, and June 4, 1986, were preliminary, not permanent, injunctions. This issue was resolved by the Fourth District Appellate Court in Princeton Offices, Inc. v. Lincolnland Properties, Inc., in an unpublished Rule 23 order. Reference to such orders is permissible to support contentions such as res judicata. (107 Ill. 2d R. 23.) That court held that a final judgment existed. All issues were finally disposed of. The duration of the order was until further order of the court. Even though every injunction is subject to modification when circumstances change, the power does not prevent an injunction from being permanent. (Material Service Corp. v. Hollingsworth (1953), 415 Ill. 284, 112 N.E.2d 703.) Because Park Plaza and Princeton have been held to be the same entity, Park Plaza is barred by the doctrine of collateral estoppel from asserting again in this court that the June 4,1986, injunction was only preliminary.

Park Plaza secondly contends the injunction issued by the Sangamon County circuit court did not constitute a final judgment on the merits. Illinois courts of equity have the power to enjoin a party from proceeding with subsequently filed actions in the courts of this and other States when necessary to restrain the maintenance of vexatious and harassing litigation. (Block & Co. v. Storm Printing Co. (1976), 40 Ill. App. 3d 92, 351 N.E.2d 271.) Lincolnland paid all notes and satisfied all judgments rendered prior to the Peoria County action, including those pertaining to Golfview 24 and Golfview 42. When Park Plaza attempted to relitigate its claims regarding Golf-view 24 and Golfview 42, the Sangamon County circuit court enjoined it from proceeding. Park Plaza was unsuccessful in appealing that injunction.

Collateral estoppel would have estopped Park Plaza from relitigating this matter if a full hearing on the merits had been allowed in Peoria County. Collateral estoppel is an extension of the doctrine of res judicata which bars relitigation of matters previously decided in an earlier cause of action. (Kramer v. Chicago Title & Insurance Co. (1979), 69 Ill. App. 3d 1015, 387 N.E.2d 1105.) The Sangamon County circuit court previously ruled that this cause of action was barred by the doctrines of release, res judicata, and collateral estoppel.

Park Plaza also alleges the trial court’s dismissal of this action, based on the earlier injunction in Lincolnland v. Butterworth, deprived it of its rights of “due process” and “property” under the United States and Illinois Constitutions. Park Plaza was represented by counsel throughout these proceedings. A hearing on its motion to vacate was held and Park Plaza failed to file any responsive affidavits. Park Plaza was afforded a full opportunity to be heard. This same argument was also rejected in the case of Princeton Offices, Inc. v. Lincolnland Properties, Inc., an unpublished Rule 23 order.

The Peoria County circuit court did not err in dismissing Park Plaza’s complaint and cause of action with prejudice in light of the Sangamon County circuit court’s permanent injunction and the other appellate decisions that have been disseminated following their full consideration and adjudication.

Based on the foregoing, the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY MOUNSON, Defendant-Appellant.
    Third District
    No. 3-87-0639
    Opinion filed June 9, 1989.
    Rehearing denied July 13, 1989.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

Defendant, Henry Mounson, was convicted following a jury trial of the offenses of felony murder and aggravated battery arising out of an altercation in the Kankakee County jail on February 27, 1986, which resulted in the death of Jerome Combs, a correctional officer on duty that evening. The circuit court of Kankakee County sentenced defendant to serve concurrent terms of 35 and 5 years, respectively, in the Department of Corrections. Defendant appeals from his conviction and sentence for felony murder.

The issues before us are: (1) whether the Illinois felony murder statute violates constitutional assurances of proportionate penalties and due process; (2) whether the fitness hearing at which defendant was found restored to fitness to stand trial violated minimum due process guarantees; (3) whether the evidence against defendant was too contradictory and confusing to support a finding of guilt of felony murder beyond a reasonable doubt; and (4) whether the sentencing court erroneously considered factors implicit in the offenses for which defendant was convicted. We affirm.

The State’s case tended to establish that on the evening of February 27, 1986, while residing at the Kankakee County Detention Center, defendant began waving a towel in front of one of the television camera monitors for the cellblock dayroom to attract the attention of the correctional officers then on duty. One of the officers, Della Hagler, turned on the intercom and asked defendant what he wanted. Defendant responded that he had been trying to get attention all day without success and then he threw the towel over the camera. He refused to remove it and challenged Hagler to come up to the cellblock and remove it herself.

Hagler solicited the assistance of the male officers on duty and proceeded upstairs to the cellblock with Officers Derrell Upton, Antonio Moran, Jerome Combs, and Walter Johnson, their supervisor. Defendant and one other inmate were in the dayroom when the officers arrived. Defendant cursed the officers monitoring the closed circuit television, demanded a cigarette and refused to return to his cell before 10 p.m. Defendant removed his shower slippers and grabbed a table. The male officers attempted to physically force defendant into his cell. Defendant resisted by kicking, bucking and grabbing onto the cell bars. The victim, Combs, was at defendant’s feet as he, Moran and Upton attempted to carry the defendant, still struggling, in a prone position into a cell. Defendant kicked Combs in the chest and Combs collapsed. An expiration of air was heard, and the officers noticed that Combs was on the floor with his head against the cell bars, his eyes were glazed, and he was not breathing.

The officers’ resuscitation efforts proved futile, as did those of the paramedics who were called to the scene. Combs was pronounced dead upon his arrival at the hospital. The Kankakee County medical examiner, Dr. James Blanding, determined that Combs died from asphyxiation due to aspiration of gastric contents. Blanding’s autopsy also revealed that Combs — a 24-year-old, weighing about 250 pounds and about 6 feet 2 or 3 inches tall — had an enlarged, diseased heart; but Blanding found no indication that the heart had malfunctioned or was related to Combs’ death.

Defendant was charged with murder in two counts — based on a killing by conduct which defendant knew created a strong probability of death or great bodily harm (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2)) (count I), and while attempting and committing the forcible felony of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(3)) (count II). Defendant was also charged with aggravated battery in two counts — based on knowingly and intentionally causing bodily harm to Jerome Combs, knowing Combs to be a correctional institution employee engaged in the execution of his official duties (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 3(a)(1), 12 — 4(b)(6)) (count III), and knowingly and intentionally making physical contact of an insulting and provoking nature with Derrell Upton, Antonio Moran and Walter Johnson, knowing them to be correctional institution employees engaged in the execution of their official duties (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 3(a)(2), 12 — 4(b)(6)) (count IV). At defendant’s request, the jury was also instructed and given verdict forms on the offenses of involuntary manslaughter and reckless conduct. The jury found defendant not guilty of murder as charged in count I and not guilty of either involuntary manslaughter or reckless conduct. Defendant was found guilty of felony murder as charged in count II and of aggravated battery as charged in counts III and IV.

In this appeal, defendant argues that the felony murder statute, as applied to aggravated battery, is unconstitutional. Defendant posits that the mental state for felony murder as charged in this case is less culpable than that of involuntary manslaughter, and, since the sentencing scheme for the former, a Class X offense, is disproportionate to that for the latter, a Class 3 felony, the statute cannot withstand scrutiny under the due process and proportionate penalty clauses of the Illinois and Federal Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§2, 11). In support of his argument, defendant cites to our supreme court’s opinion in People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.

Constitutional challenges to the felony murder statute as applied to aggravated battery were generally rejected by this court in People v. Carpi (1976), 44 Ill. App. 3d 364, 358 N.E.2d 355. Nonetheless, because defendant’s argument based on Wisslead places a slightly different slant on the issue, we choose to reassess our views in the context here presented. In Wisslead, defendant was charged with unlawful restraint and armed violence predicated on unlawful restraint. The court, in finding that the armed violence statute violated constitutional guarantees of due process and proportionate penalties, compared the offense of armed violence with the offenses of aggravated kidnaping and forcible detention. The court noted that when the presence of a gun was added to unlawful restraint, a Class 4 felony, the offense could be charged as armed violence, a Class X felony. However, when the same weapon was added to a more serious predicate offense — kidnaping, a Class 2 felony — the offense became aggravated kidnaping, a Class 1 felony. Similarly, the offense of forcible detention, a Class 2 felony, includes all of the elements of armed violence predicated on unlawful restraint, but carries a lesser penalty than the Class X offense of armed violence.

In this case, the mental state of simple battery, a Class A misdemeanor, is intentionally or knowingly causing bodily harm or making physical contact of an insulting or provoking nature. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 3(a).) Simple battery is enhanced to aggravated battery when the defendant further knows that the individual harmed is a correctional institution employee. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(b)(6).) When the element of the individual’s death is added, the offense becomes felony murder. The mental state for involuntary manslaughter, by comparison, is recklessness. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a).) By definition, recklessness as applied here is conscious disregard of a substantial and unjustifiable risk that great bodily harm or death will result. Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.

Defendant contends that the “conscious disregard” mental state as applied to involuntary manslaughter is necessarily a more culpable mental state than the “intentional or knowing” mental state as applied to aggravated battery. Since the jury found defendant not guilty of involuntary manslaughter, the argument continues, it would be illogical to sustain a conviction for felony murder because that offense carries with it a greater penalty even though it is based on a less culpable mental state.

Defendant’s argument proceeds from the faulty premise that recklessness as applied here is in fact a more culpable mental state than that required for the predicate offense for felony murder, i.e., aggravated battery. Initially, we do not agree that the mental state element for aggravated battery as applied here is derived solely from the definition of simple battery. Indeed, the battery of a correctional institution employee would not support a charge of aggravated battery under section 12 — 4(b)(6) without the additional mental state element of the accused’s knowledge that such employee is a correctional officer engaged in his official duties. Thus, the enhancement from simple battery to aggravated battery is not, as defendant would suggest, based solely on the status of the victim, but is based as well upon defendant’s knowledge of the victim’s status. We find, therefore, that the enhanced mental state of knowingly or intentionally committing a battery of a correctional institution employee known to be engaging in his official duties is not less culpable than consciously disregarding a substantial risk that one’s acts will result in death or great bodily harm.

Moreover, unlike the situation in Wisslead, when we compare the sentencing schemes for involuntary manslaughter and aggravated battery we find that the two offenses are not, in fact, disproportionately penalized. Both offenses are Class 3 felonies. It is not, therefore, incongruous that when death results during an aggravated battery, the offense is punished more severely than if defendant had acted recklessly and the victim had not been known to be a correctional officer engaged in his official duties. Accordingly, defendant’s constitutional challenge must fail.

Defendant next contends that the hearing at which he was found restored to fitness to stand trial deprived him of his right to due process of law. Prior to trial, in May of 1986, defendant’s retained counsel, attorney Earl Washington, indicated to the court that he was experiencing difficulty gaining the cooperation of defendant and that defendant’s conduct was such as to call into question his mental capacity. Accordingly, the court appointed Dr. Erwin Baukus to examine defendant. At a subsequent hearing on fitness, Dr. Baukus diagnosed defendant’s condition as “anti-social personality disorder.” He described defendant as too impatient and too impulsive to cooperate in his defense with his attorney. Based on Dr. Baukus’ prior association with defendant, he opined that with treatment defendant could be expected to be restored to fitness within a year. The court, accordingly, found defendant unfit to stand trial and remanded him to the Department of Mental Health and Developmental Disabilities for proper placement and treatment.

On April 21, 1987, the matter was recalled for a hearing on fitness. On that date, defendant appeared without counsel. The court noted that the Department of Mental Health had reported that defendant was restored to fitness and asked defendant if he had talked to attorney Washington. Defendant said he had not, but he thought Washington was still representing him. The matter was continued. On June 5, attorney Washington appeared on defendant’s behalf. Washington declined the court’s offer of another hearing, as did the State’s Attorney, and both counsel stipulated to a March 5, 1987, report of Dr. Percival Tiongson, a staff psychiatrist with the Chester Mental Health Center. A portion of the report was read into the record: “Mr. Mounson has currently attained his fitness for trial and therefore I recommend that he be referred back to the legal system.” The court accepted the parties’ stipulation to the report, found defendant fit to stand trial and set the date for his trial. Attorney Washingson subsequently withdrew his appearance, and defendant proceeded to trial represented by appointed counsel.

Relying on precedent condemning the trial court’s acceptance of a stipulation to a doctor’s conclusion that a defendant is fit for trial (see, e.g., People v. Thompson (1987), 158 Ill. App. 3d 860, 511 N.E.2d 993), defendant asks that his convictions be reversed and his cause be remanded for a new inquiry into his fitness to stand trial.

In Thompson, this court granted the relief here requested for failure to meet minimal due process standards in a fitness hearing. We there stated:

“[T]he parties simply stipulated to the findings of the two doctors contained in the reports and to their conclusion that the defendant was fit to stand trial. Unlike the situation in Lewis [People v. Lewis (1984), 103 Ill. 2d 111, 468 N.E.2d 1222], the parties here did not stipulate that, if called to testify, qualified psychiatrists or psychologists who had examined the defendant would testify that in their opinion the defendant was fit to stand trial. Instead, the parties stipulated to, and the judge accepted, the conclusion that the defendant was fit to stand trial. The distinction is a fine one, we agree, but it is one drawn by our Illinois Supreme Court in Lewis.” 158 Ill. App. 3d at 864, 511 N.E.2d at 996.

This court further noted that it was clear from the record in Thompson that the trial court did not in fact exercise its discretion at the restoration hearing, did not even review the reports, and that the court’s decision of fitness was based solely on the parties’ stipulation. We also believe it noteworthy that defendant’s mental illness was an integral factor in the defense of Thompson’s cause. Although the nature of Thompson’s mental condition does not appear in the opinion, Thompson entered a plea of guilty but mentally ill to the charge of armed violence within four months of his restoration hearing.

Having reviewed the record presently before us, we find that this case falls on the other side of the “fine line” defined in Thompson. Here, it is clear that the trial court had received Dr. Tiongson’s report prior to April 21, 1987, and had reviewed it. The court briefly questioned defendant and received responsive, nonhostile replies. On June 5, the trial court accepted counsel’s stipulation to the psychiatrist’s report — not merely his conclusion. The court then made its finding of fitness. Because defendant’s “mental condition,” as described by Dr. Baukus at the 1986 hearing, was in the nature of a personality disorder, the court was in a position to weigh the psychiatrist’s March 5, 1987, report and reach its determination of defendant’s fitness based not only on the stipulated report, but on the court’s independent, in-court observations as well. The record further demonstrates that defendant was able to consult with and cooperate with his appointed counsel after attorney Washington withdrew from the case. Under the circumstances, we conclude that the restoration hearing in this case did not offend minimal due process guarantees and further inquiry into defendant’s fitness to stand trial is not warranted.

Defendant next challenges his conviction on the ground that the evidence against him was so confusing and fraught with contradictions that it failed to prove his guilt beyond a reasonable doubt. It is true that the various occurrence witnesses did not concur with one another as to several details in their accounts of the events leading up to Combs’ death. Their recollections differed in insignificant respects and reflected the witnesses’ various perspectives in seeing and hearing the altercation that evening. The witnesses were cross-examined, and the inconsistencies were well probed by defense counsel. In defense of the charges, defendant introduced Dr. Craig Travis, a board-certified emergency physician, who testified that, in his opinion, Combs had died of a heart attack. Dr. Travis was not a pathologist and he had neither examined the victim nor attended the autopsy. His opinion was based only on his review of the medical examiner’s report and the emergency report made after Combs was received at the hospital.

It is well established in this State that “[i]f the decision of the trier of fact is to convict, and if that decision is based on credible and substantial evidence, it will not be set aside because of minor inconsistencies which the trier of fact resolved in favor of the State.” (People v. Boone (1988), 180 Ill. App. 3d 98, 107, 534 N.E.2d 1266, 1271, citing People v. Devine (1981), 101 Ill. App. 3d 158, 163, 427 N.E.2d 1277.) In this case it was the province of the jury, as finder of fact, to determine whether the witnesses were worthy of belief. On review of the record before us, we do not find the various witnesses’ testimony so unsatisfactory or incredible as to leave a doubt of defendant’s guilt. The jury was entitled to accept the State’s expert testimony as to the cause of Combs’ death over defendant’s expert witness. Accordingly, we affirm defendant’s conviction.

Lastly, defendant argues that the sentencing court improperly considered factors implicit in the offenses -for which he was convicted. Defendant prays for a reduction of his 35-year sentence. Again; we have painstakingly reviewed the - record of the court proceedings and find that we must reject defendant’s position. The court prefaced its sentencing decision with the observation that certain statutory factors in mitigation (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.1) are the converse of statutory factors in aggravation (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2). The court then reviewed the statutory factors in mitigation and found them generally wanting. In rejecting the first factor in mitigation, the court observed that defendant’s conduct did cause or threaten serious physical harm to another — it left one man dead. The court proceeded to consider other relevant factors in mitigation before turning to the factors in aggravation. Then, the court expressly found that defendant’s extensive history of criminality, together with the need to deter others and the lack of any possibly mitigating evidence, warranted a substantial term of imprisonment.

While under other circumstances the sentencing court’s recitation of its reasons for rejecting statutory factors in mitigation might be so interwoven with the court’s consideration of factors in aggravation as to require remandment for a new sentencing hearing, we do not find this to be such a case. Based on our review of that portion of the record here complained of within the context of the court’s entire sentencing decision, we find that the sentencing judge was merely expressing his reasons for determining that no mitigating circumstances were present. (See People v. Adams (1988), 168 Ill. App. 3d 588, 590, 522 N.E.2d 819, 821 (“The court’s explicit rejection of *** mitigating factors neither was equivalent to aggravating with those factors nor was improper under Conover [People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906]”).) The court’s conclusion in this regard, coupled with permissible factors found in aggravation, support the court’s decision to impose a sentence of imprisonment on the high side of the range statutorily allowed. In sum, we find no abuse of the sentencing court’s discretion in setting a 35-year term in this case.

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

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    KIM BACHMAN, Indiv. and as Mother and Next Friend of Brandi Bachman et al., et al., Plaintiffs-Appellees, v. SHARON & LO’S PLACE, INC., et al., Defendants-Appellants (J.J.’s River City Landing et al., Defendants).
    Third District
    No. 3-88-0715
    Opinion filed June 12, 1989.
    Rehearing denied July 31, 1989.
    HEIPLE, J., specially concurring.
    E. Richard Johnson, of Peoria, for appellants.
    William Brown, of Peoria, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiffs, Kim Bachman et al., brought suit against the defendants pursuant to the Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135). The defendants-appellants, Sharon & Lo’s Place et al. (hereinafter the defendants) bring this interlocutory appeal from the trial court’s denial of their motion to dismiss two counts of the plaintiffs’ complaint.

The plaintiffs are the spouse and children of Howard Bachman. After he was killed in a motorcycle accident on July 7, 1985, the plaintiffs sued the defendants under the Dramshop Act. Count II of the complaint alleged that the defendants were liable under the Act to the plaintiffs for injury to their means of support. Count IV of the complaint alleged that the defendants were liable under the Act to the plaintiffs for damage to their property.

The defendants filed a motion to dismiss counts II and IV of the complaint. The trial court denied the motion but granted the defendants’ subsequent motion to certify the issue for interlocutory appeal (107 Ill. 2d R. 308). The trial court certified the following question for review:

“For an accident occurring on July 7, 1985, in which an alleged intoxicated person was killed while operating a motor vehicle, and no third person’s conduct contributed to the accident, does the Dram Shop Act [citation], as then applicable, provide a cause of action for the spouse of the alleged intoxicated person to recover for property damage, including damage to the motor vehicle and funeral and medical expenses? If so, is the cause of action an ‘in consequence’ cause of action or is it a ‘by’ cause of action?”

Prior to discussing the certified issue, we note that the plaintiffs have filed a motion to strike part of the defendants’ brief. The plaintiffs argue that the part which addresses count II of the complaint should be struck because the trial court certified an issue of law which concerned only count IV. The plaintiffs correctly point out that in an interlocutory appeal the reviewing court may only address the question certified by the trial court. (Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill. App. 3d 676, 396 N.E.2d 1366.) We agree with the plaintiffs that the question certified by the trial court concerned only count IV. Accordingly, we grant the plaintiffs’ motion to strike and shall not consider the part of the defendants’ brief addressing count II.

The defendants argue on appeal that the trial court erred in denying the motion to dismiss count IV. They note that under the Dramshop Act a cause of action may be maintained in either of two ways, based on the following statutory language:

“Section 6 — 21. Every person who is injured in person or property by any intoxicated person, has a right of action *** against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. *** An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person ***.” (Ill. Rev. Stat. 1983, ch. 43, par. 135.)

An action for injury to property caused by an intoxicated person is often referred to as a “by” cause of action, and an action for loss of means of support caused by an intoxicated person or in consequence of his intoxication is often referred to as an “in consequence of” cause of action. Reese v. Roth (1978), 62 Ill. App. 3d 937, 379 N.E.2d 932.

The defendants argue that under the facts alleged by the plaintiff a “by” cause of action may not be maintained. They contend that the spouse of an intoxicated person suing for injuries caused by the intoxicated person is limited to an “in consequence of” action. The defendants rely on Hernandez v. Diaz (1964), 31 Ill. 2d 393, 202 N.E.2d 209, where the court stated that the most prevalent use of the “in consequence of” theory was in loss of support cases where the provider of support was also the intoxicated person. See also Overocker v. Retoff (1968), 93 Ill. App. 2d 11, 234 N.E.2d 820.

The authority cited by the defendants does not state that the plaintiffs in this case would be precluded from asserting a “by” action. Moreover, when the statutory language is clear, this court should give effect to its plain and ordinary meaning. (People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666.) The statute clearly states that a person injured in her property by an intoxicated person may recover for the loss. The spouse in this case sufficiently alleged in her complaint that she had been injured in her property, because she stated that she was liable for medical and funeral expenses arising out of the accident. (Ill. Rev. Stat. 1987, ch. 40, par. 1015; Ragan v. Protko (1978), 66 Ill. App. 3d 257, 383 N.E.2d 745.) Accordingly, we hold that the plaintiffs may attempt to recover for injury to their property under a “by” cause of action. Our conclusion is supported by Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116, where the court stated in dicta that the wife of a husband injured by his own intoxication may recover for injury to property under a “by” cause of action. See also Shepherd v. Marsaglia (1961), 31 Ill. App. 2d 379, 176 N.E.2d 473.

The judgment of the circuit court of Tazewell County denying the motion to dismiss count IV of the complaint is affirmed.

Affirmed.

STOUDER, J., concurs.

JUSTICE HEIPLE,

specially concurring:

The Dramshop Act provides in pertinent part:

“Section 6 — 21. Every person who is injured in person or property by an intoxicated person, has a right of action *** against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. *** An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person ***.” Ill. Rev. Stat. 1983, ch. 43, par. 135.

I concur with the result reached in this case. Although the discussion in the opinion relating to the distinction between a “by” cause of action and an “in consequence” cause of action has support in the reported decisions, I find such distinction to be unfortunate. The terms “by” and “in consequence” are equivalent expressions. Attempts to distinguish between the two expressions represent gratuitous judicial accretions in the law which are unnecessary to the purposes of the statute and which, I would surmise, were never contemplated by its drafters or enactors.


author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY KELLY, a/k/a Wayne Kelly, Defendant-Appellant.
    Third District
    No. 3-88-0371
    Opinion filed June 26, 1989.

      HEIPLE, J., concurring in part and dissenting in part.
    Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant was charged with two counts of aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(b)(1), (c)). The alleged victims of the offenses were five-year old Amy Sims and her seven-year-old cousin, Sara Sims. After a jury trial, defendant was found guilty of aggravated criminal sexual assault against Sara and aggravated criminal sexual abuse of both girls. He was found not guilty of aggravated criminal sexual assault against Amy. Defendant was sentenced to eight years in the Department of Corrections on the Class X felony and five years for the lesser offense against Amy, the sentences to run concurrently. Defendant appeals from his convictions.

The State’s evidence as presented at trial established that Sara Sims is the daughter of Patricia Sims, who was married to a Fred Hill for a period of time prior to July 1986. Sara lived with her mother in a trailer park in Colona, Illinois. Fred Hill resided in another trailer in the park after he and Patricia were divorced. Between June and the end of August 1986, Patricia baby-sat in her home for her niece, Amy. Patricia’s sister, Sharon Sims, frequently took care of Sara at her home in Green Rock. Sharon testified that during the period of July and August 1986, Sara was very dirty when Sharon came to pick her up at Patricia’s home. Sara wanted a lot of baths, and she became quiet and cried frequently during this period. However, Sharon did not attribute Sara’s behavior to any abuse at the time.

On April 11, 1987, Sara telephoned Sharon and asked her to pick her up. Sara was quiet and wanted a bath. After she was dressed for bed, Sara began crying. According to Sharon, Sara said she was sorry and that she hurt between her legs. Sharon undressed the child and inspected Sara’s vaginal area, noting that it was red and raw. Sara continued crying. She was shaking and acted very scared. Sharon asked Sara what had happened. Sara said that her mother had hit her with a flyswatter. Not satisfied with the response, Sharon again asked how she had been hurt. This time, Sara said that Fred Hill had poked her with his finger. The following morning, Sharon took Sara to a hospital for an examination.

Because of suspected abuse, Corporal Heidi Owens of the Colona police department came to Sharon’s home on April 12 to investigate. After interviewing Sara, Owens had Fred Hill arrested and his trailer was searched for photographs. An appointment was made for Sara to see Dr. Linda Ozaki, a pediatrician practicing in Davenport, Iowa, on April 15. Ozaki’s examination of Sara revealed an enlarged introitus, a tear at the back of the hymen and marked redness next to the hymen. Ozaki testified that her findings were consistent with a finger having been inserted in the child’s vagina; however, she was unable to specify when the injuries had occurred. She could determine only that the injury to the hymen had not occurred within several days immediately preceding her examination.

Meanwhile, on the evening of April 14, Sharon received a telephone call from Vicky Sims, Amy’s mother, indicating that Amy had been sexually abused by Fred Hill. Sharon immediately telephoned Owens, who launched another investigation. At the time, Amy was staying with her aunt, Kelly Tinney, at a trailer in the same park where Fred Hill and Patricia Sims lived. Owens talked with Amy for a while, but she became too upset and Owens returned to her regular duties. About an hour later, Mrs. Tinney called Owens back, stating that Amy refused to go to bed until she talked with Owens again. Owens went back out to the trailer park, and this time Amy said that a second person, a “cross-eyed” man named Tom, was involved.

On April 16, Vicky telephoned Sharon and told her about Amy’s report of another man. Sharon then sat down with Sara and asked her if anyone else had hurt her like Fred Hill had. At first Sara only cried and refused to talk about it. When she did acknowledge that there had been another man, she described him as a “cross-eyed” man named Tommy Kelly. According to Sharon, Sara said that he had “poked her with his finger too.” At that point, Sharon reported again to Owens, and proceedings against defendant were initiated.

Owens testified that when Sharon and Sara came to her office on April 16, Owens showed Sara some pictures confiscated during the search of Fred Hill’s trailer. Sara immediately identified defendant from one showing defendant and Fred Hill together on a couch in the living room of Hill’s trailer.

Dr. Ozaki testified that she examined Amy Sims on April 20 and found that she had an enlarged introitus, but no signs of bruising or tearing of the vagina. Ozaki stated that her findings were consistent with finger penetration.

Fred Hill was tried and convicted separately before defendant’s case came up for trial. In this case, Amy and Sara were both found competent to testify. Amy, with the aid of anatomically correct dolls, testified that defendant had touched her in her private area with his finger, that it hurt, and that he told her if she told anybody “they would send [her] away from home.” Amy testified that Fred had “touched her down here” as well. She said that she and defendant were in the living room of Fred’s trailer when defendant had touched her, and Fred had touched her in the kitchen.

Sara, also using the dolls, testified that defendant had touched her with his finger “in [her] naughty place.” At the time, her panties were off and she and defendant were in the living room or kitchen of Fred’s trailer. Amy and Fred were in the kitchen. She also stated that Fred had touched her in her “naughty place” when they were all in the living room. Afterwards, the men told the girls to “keep [their] mouths shut.” Sara testified on cross-examination that Fred Hill had been bothering her for a long time, even when he was married to her mother.

Over defendant’s objection, the State introduced testimony of Pamela Klein, a psychotherapist with expertise in the area of child sexual abuse and molestation. Klein testified to a theory of behavior known as the rape trauma syndrome. She described delayed disclosure within that context and explained the “double bind” or “approach avoidance situation” where a child is told to keep a secret and has also been taught to mind. In a molestation situation, the child knows what happened is wrong, but she is unable to communicate information about it. Klein, who had interviewed both girls prior to the trial, testified that their behavior — including their failure to report the molestation promptly, their refusal to disclose information to their mothers and their failure to identify both men when they initially disclosed that they had been molested — was not inconsistent with rape trauma syndrome.

Defendant and several friends and family members testified on defendant’s behalf. Defendant acknowledged having stayed overnight in Fred Hill’s trailer once in July 1986, but denied having seen either of the girls on that occasion. Defendant usually stayed with his mother or in an apartment in LeClaire, Iowa, and with his uncle in Moline, Illinois, during July and August when the girls were molested. Defendant testified that he worked every day from August 2 until sometime in October 1986 on a driveway for the mother of his friend, Russell Williams. Defendant’s alibi was substantially corroborated by witnesses called by the defense.

In rebuttal, the State called Roger Sims, Amy and Sara’s 16-year-old uncle, who testified that he frequently went swimming in the Rock River with friends in July and August 1986 and would stop by Fred Hill’s trailer on the way. Sims testified that he had been introduced to defendant by Hill and had seen him in the trailer that summer on two, three or four occasions. Sims was certain that he had seen Sara in the trailer when defendant was there, but he could not state that Amy was there when he saw defendant in the trailer.

Defendant was found guilty of three of the four offenses charged and sentenced to concurrent terms of imprisonment, as aforesaid. His post-trial motion was denied, and he appeals from his convictions. The issues on appeal are: (1) whether the trial court erred in allowing testimony of hearsay statements of the minor victims; (2) whether the single-photograph identification procedure used by the investigator was impermissibly suggestive in this case; (3) whether the testimony of Pamela Klein was improperly admitted; and (4) whether the jury’s verdicts were contrary to the manifest weight of the evidence.

Defendant first argues that the corroborative complaint testimony of Sharon Sims and Heidi Owen was improperly admitted because the minors’ complaints were not made promptly and were elicited by suggestive questioning by the witnesses, and the witnesses’ testimony focused on the identification of the perpetrator rather than on the fact that a complaint was made. Currently section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) provides in pertinent part:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule: ***
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10, as amended by Pub. Act 85 — 837, eff. Jan. 1, 1988.)

In its current form, the statute permits hearsay testimony concerning the details of sexual acts reportedly perpetrated upon the minor victims beyond the mere fact that a complaint was made. Compare Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10, as amended by Pub. Act 83— 1067, §3, eff. July 1,1984.

Defendant’s contention that the minor victims’ delay in reporting the sexual acts renders their hearsay statements irrelevant and thus inadmissible has been consistently discounted by the Illinois Appellate Court interpreting section 115 — 10. (See People v. Bailey (1988), 177 Ill. App. 3d 679, 683, 532 N.E.2d 587, 590 (and cases cited therein).) The court’s reasoning is that “[i]n the absence of a statutory requirement [that] there be no unexplained delay, *** it was the intent of the legislature that any evidence of delay in making the complaint will affect the weight, rather than the admissibility, of the evidence.” (Bailey, 177 Ill. App. 3d at 683, 532 N.E.2d at 590.) This reasoning applies with equal force to defendant’s argument that Sara’s statements to Sharon Sims and Corporal Owens were in part elicited by questioning. Accordingly, we find no reversible error in the trial court’s admission of the hearsay testimony of Sims and Owens concerning the circumstances of the sexual acts reported by Sara.

Further, hearsay testimony of Corporal Owens relative to Sara’s identification of defendant was clearly admissible under section 115 — 12 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 12). Sara testified at trial, was available for cross-examination concerning her prior identification and made a positive in-court identification, thereby assuring the reliability of Owens’ hearsay testimony. (See People v. Page (1987), 163 Ill. App. 3d 959, 974, 516 N.E.2d 1371, 1382, citing People v. Hudson (1985), 137 Ill. App. 3d 606, 484 N.E.2d 1246 (“Both the officer and the declarant must be present in court subject to cross-examination to assure the reliability of the [hearsay] statement”).) Moreover, with respect to Sharon Sims’ hearsay testimony of Sara’s identification of defendant, admission of her statement was merely cumulative, and, under the circumstances, if error, it was harmless beyond a reasonable doubt.

Nor do we find error in the trial court’s denial of defendant’s motion to suppress the minor victims’ out-of-court identifications. As a rule, the use of a single-photograph display is unduly suggestive and gives rise to a substantial likelihood of irreparable misidentification if the totality of the circumstances surrounding the identification renders it unreliable. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) Defendant in this case was described by specific, unique characteristics — his name and crossed eyes. He was further described as a friend of Hill’s. These characteristics — together with the children’s certainty upon viewing the photograph of defendant and Hill, and the circumstances surrounding the offenses that rendered the likelihood of misidentification remote (see People v. Pruden (1982), 110 Ill. App. 3d 250, 442 N.E.2d 284, 289 (and cases cited therein)) — support the court’s decision to admit evidence of the out-of-court, single-photograph identifications in this case.

Next, defendant argues that the admission of Pamela Klein’s testimony as an expert was improper because she was not qualified as a behavioral psychologist, psychiatrist or physician pursuant to section 115 — 7.2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2). Prior to January 1, 1989, section 115 — 7.2 provided:

“In a prosecution for an illegal sexual act perpetrated upon a victim, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, expert testimony by a behavioral psychologist, psychiatrist or physician relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2.)

This legislation was added by Public Act 85 — 837, which became effective on January 1, 1988. We note that Public Act 85 — 837 contains other substantive changes to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10) and to section 12 — 13 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13), which provide some insight into the legislative intent of section 115 — 7.2. In section 115 — 10, as indicated earlier in this opinion, the legislation significantly expanded the scope of admissible hearsay testimony of a child victim’s out-of-court statements concerning sexual offenses. In section 12 — 13, the legislation provides for Class X sentencing in subsequent convictions of criminal sexual assault.

The gist of the amendments to sections 115 — 10 and 12 — 13 is to liberalize the hearsay rule in prosecutions for sexual offenses against children and to permit more severe sentences for repeat offenders. Likewise, it is apparent that section 115 — 7.2 was enacted for the purpose of admitting in prosecutions for sexual offenses expert testimony that might otherwise be excluded on grounds of relevancy. Given the tenor of the legislation, it is our opinion that the legislature’s list of professionals who may testify to post-traumatic stress syndrome was not intended to be an exclusive, but rather a generic, list of professionals who are qualified to give expert testimony as to a victim’s psychological and physiological reactions to a sex offense. The decision whether to admit such testimony through witnesses not specifically enumerated by the statute remains within the sound discretion of the trial court. (We note that the provision was subsequently clarified by deleting the list of professionals and replacing it with “an expert qualified by the court.” See Pub. Act 85 — 1279, amending section 115— 7.2, eff. Jan. 1, 1989.)

In this case, the State introduced Klein’s testimony to explain the minor victims’ delayed and fragmented reports of the offenses. Although Klein’s professional title is “psychotherapist” and she does not claim a doctorate degree, the record on appeal establishes that her expert qualifications in the area of child sexual abuse are legion. Her testimony was undeniably relevant on the issue of whether the children were victims of one or both of the men charged with the offenses. Under the circumstances, we find no abuse of the court’s discretion in admitting Klein’s expert testimony relating to post-traumatic stress syndrome.

Lastly, we address defendant’s contentions that the jury’s verdicts are contrary to the manifest weight of the evidence. Defendant first argues that the convictions must be reversed because the State failed to prove any specific date of the offenses. This contention is meritless. The exact date of the offenses was neither an element of the crimes charged, nor a factor in determining whether the prosecution was time barred. And, given defendant’s alibi defense that he was never at Hill’s trailer when the victims were there, defendant was not prejudiced by lack of proof of the precise date of the offenses. See People v. Long (1977), 55 Ill. App. 3d 764, 370 N.E.2d 1315.

Defendant also contends that the State failed to prove penetration or that any offense at all had occurred. We agree that there was insufficient proof of penetration. The hearsay evidence indicated that Sara complained to Sharon Sims that defendant had “poked” her. At trial, Sara testified only that he had “touched” her in her “naughty place.” Without more, neither statement would support a conviction based on penetration. (See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f)) (defining “penetration,” inter alia, as an “intrusion, however slight, of any part of the body of one person *** into the sex organ *** of another person.” (Emphasis added)).) Although Dr. Ozaki’s testimony established that the vaginas of both girls may have been penetrated, there was no evidence that defendant had done so. The jury was left to speculate whether Fred Hill or defendant or both had penetrated the girls. Under the circumstances, we reverse defendant’s conviction for the offense of aggravated criminal sexual assault and vacate his sentence of eight years for that offense.

The record on appeal supports the jury’s verdict finding defendant guilty of the aggravated criminal sexual abuse of both victims. Clearly, the jury was not required to and in fact did not believe defendant’s alibi defense. Accordingly, we remand this cause for reinstatement of defendant’s conviction for aggravated criminal abuse of Sara (count IV) and for sentencing thereon. See People v. Pecina (1985), 132 Ill. App. 3d 962, 477 N.E.2d 820 (wherein this court reversed defendant’s conviction of felony murder and remanded cause for reinstatement of jury verdicts on intentional murder charges which had been vacated by trial court solely for the purpose of avoiding multiple convictions for single murder).

The judgment of the circuit court is affirmed in part, reversed in part and remanded with directions.

Affirmed in part; reversed in part and remanded.

STOUDER, J., concurs.

JUSTICE HEIPLE,

concurring in part and dissenting in part:

The defendant, Wayne Thomas Kelly, was charged with two counts of aggravated criminal sexual assault against five-year-old Amy Sims and her seven-year-old cousin, Sara Sims. Following a jury trial, the defendant was convicted of one count of aggravated criminal sexual assault against Sara and was convicted of aggravated criminal sexual abuse against both girls. I agree with the majority that the jury’s verdict finding the defendant guilty of aggravated sexual abuse of both victims should be upheld. I do not agree, however, with that portion of the majority opinion which found that there was insufficient proof of penetration to support a conviction for the offense of aggravated criminal sexual assault.

Sexual penetration is statutorily defined as “any intrusion, however slight *** of any *** object into the sex organ or anus of another.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).) The question of whether penetration has occurred is one for the jury to determine after examining the evidence presented at trial. (People v. Morgan (1986), 149 Ill. App. 3d 733.) A reviewing court should not set aside a guilty verdict unless the evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused’s guilt. People v. Yates (1983), 98 Ill. 2d 502.

In the instant case, Sharon Sims, Sara’s aunt, testified that when she was giving Sara a bath she noticed that Sara’s vaginal area was very red and raw. Sharon further testified that when she asked Sara how the defendant had hurt her, Sara responded “he had poked her with his finger too.” Sara, with the aid of anatomically correct dolls, testified at trial that the defendant had touched her “naughty place” while she was lying down with her panties off and that it felt “bad.” Dr. Ozaki then testified that the evidence supported a finding that Sara’s vagina had been penetrated.

This testimony reveals that the jury verdict cannot be considered unreasonable or improbable. The jury could have concluded that if the defendant had “poked” Sara’s vaginal area with his finger until it hurt that this would constitute penetration under the statute.

Nevertheless, the majority maintains that the testimony of Sharon was improper to the extent that it added the element of penetration which was not specifically testified to by Sara. Merely because Sara did not recite the magic words that defendant placed his fingers “into” her vagina, however, is no reason to discount Sharon’s testimony. Section 115 — 10 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10) provides in relevant part:

“(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: * * *
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter of 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.” (Emphasis added.)

The statute simply does not state that the child must first specifically testify in court to the element of penetration before Sharon can be allowed to testify to Sara’s out-of-court statement which referred to the defendant “poking” Sara’s vagina. Sara’s statement to Sharon described a detail of the defendant’s sexual misconduct which related to the element of penetration. Thus, Sharon’s testimony was proper under the statute. Consequently, I would uphold the jury verdict in its entirety and affirm the defendant’s conviction for the offense of aggravated criminal sexual assault.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT HOBSON, JR., Defendant-Appellant.
    Third District
    No. 3-88-0722
    Opinion filed June 21, 1989.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Roosevelt Hobson, Jr., was charged with unlawful use of a weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(4).) The offense was enhanced from a misdemeanor to a Class 4 felony because he had a prior conviction for the same offense. (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(b).) Following a bench trial, the defendant was convicted and sentenced to 15 months’ probation, conditioned upon his serving 38 days in the county jail. He appeals. We affirm.

Prior to trial, the defendant filed a motion in limine requesting that the State be prohibited from introducing any evidence of his prior conviction. In support of his motion, he relied upon Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, which held that a defendant’s prior uncounseled conviction could not be used to enhance a subsequent conviction from a misdemeanor to a felony. The defendant’s motion alleged that even though he had been represented by counsel in the prior case, the representation was ineffective and therefore amounted to no representation. Thus, he contended that his prior conviction could not be used to enhance his present offense.

At the hearing on the motion, the defendant testified about his prior conviction. He stated that he had been stopped by a Peoria police officer because the light over his car’s license plate was not working. After the officer issued him a ticket for the violation, another officer arrived on the scene and the two began searching the defendant’s car. According to the defendant, the officers did not produce a search warrant nor did they obtain his consent. A gun in the glove compartment was subsequently found, and the defendant was arrested for unlawful use of a weapon.

The defendant further testified that he was represented by the public defender in that case, but that he only met with his attorney on the day of the arraignment and on the day he entered his guilty plea. He also testified that the public defender did not tell him that a motion to suppress might prevent the gun from being used as evidence. No motion to suppress was made. The court accepted the defendant’s plea of guilty and entered a judgment of conviction. It then sentenced him to one year of probation, conditioned upon his serving five days in the Peoria County jail. The defendant did not file a motion to withdraw his guilty plea and did not appeal his conviction or sentence.

After hearing the defendant’s testimony, the trial court denied his motion in limine and the case proceeded to trial. The evidence showed that on November 21, 1987, police officer Ron Shipp was called to investigate a fight at a convenience store. The stipulated testimony of Officer Shipp was that when he arrived at the scene a bystander told him that if anyone was going to be arrested it should be the man with the gun. The bystander then pointed in the direction of two black males. Officer Shipp subsequently searched the defendant and retrieved a loaded .38 caliber gun from his waist. Based on the evidence, the trial court convicted the defendant of unlawful use of a weapon.

On appeal, the defendant argues that his testimony at the motion in limine hearing established that the prior misdemeanor conviction was obtained in violation of his sixth amendment right to the effective assistance of counsel. He also argues that because of this denial of his right to the effective assistance of counsel, the use of the prior conviction as an enhancing factor in the instant case deprived him of his constitutional right to due process of law.

We need not determine whether the defendant was denied his right to the effective assistance of counsel, because we find that he pled guilty to the prior misdemeanor charge and is therefore estopped from collaterally attacking his prior conviction. It is well established that a voluntary plea of guilty waives all nonjurisdictional errors, including violations of constitutional rights. (People v. Ondrey (1976), 65 Ill. 2d 360, 357 N.E.2d 1160; People v. Weathers (1980), 83 Ill. App. 3d 451, 404 N.E.2d 1011.) By pleading guilty to the prior offense, the instant defendant waived any claim that he was denied effective assistance of counsel in that case. (See People v. Sprinkle (1976), 39 Ill. App. 3d 740, 350 N.E.2d 536.) Accordingly, we find that the defendant has waived any claim of ineffective assistance of counsel and that the prior misdemeanor conviction was properly used to enhance the current offense from a misdemeanor to a felony.

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

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD TYRREL, Defendant-Appellant.
    Third District
    No. 3-88-0485
    Opinion filed June 8, 1989.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Greg McClintock, State’s Attorney, of Monmouth (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Donald Tyrrel, was convicted of two counts of aggravated criminal sexual assault after the court found he performed acts of sexual penetration against seven-year-old Amity Caldwell. He was sentenced to concurrent 20-year terms of imprisonment, and the remaining charges against him were dismissed. The defendant appeals and raises issues regarding the court’s refusal to make certain accommodations for his hearing impairment, the State’s bill of particulars, and effective assistance of counsel. We affirm.

The defendant was charged on April 29, 1987, with three counts of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1).) The State later added two counts of aggravated criminal sexual assault and two counts of indecent solicitation of a child (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 6(a)). Counts II and V, which alleged that the defendant performed acts of sexual penetration against seven-year-old Amity Caldwell, were severed from the other counts and were tried together.

The defendant was initially represented by a public defender, then he hired a private attorney, whom he later fired. He then requested a public defender be reappointed, and for a period of time, he was represented by his privately retained attorney and a public defender. At various times before trial, the defendant also claimed he was attempting to procure the services of attorneys in Rock Island, Illinois, Montana, and Maryland. The case did not proceed to trial until over one year after the initial charges were filed, because the defendant waived his right to a speedy trial and requested continuances, and because a multitude of pretrial motions were filed, which required numerous pretrial hearings to be held. All of the issues raised on appeal arise out of the proceedings which took place prior to trial.

The defendant suffered from a hearing impairment, and prior to trial, he filed motions requesting, among other things, that an expert be appointed to examine him in order to determine his fitness to stand trial and requesting that the State provide him with a hearing aid. At the hearing on the various motions, the defendant’s mother, Nyla Tyrrel, testified that she became aware of the defendant’s hearing problem when he was approximately three months old. The defendant received a hearing aid when he was six years old, and he attended a school for the hearing impaired for one year. Mrs. Tyrrel stated that the defendant wore hearing aids almost continuously for several years until 1983 or 1984. She indicated that at the time of his arrest, the defendant had been attempting to obtain a hearing aid from a State agency. The witness further testified that the defendant had difficulty hearing high-pitched voices and that background noise made it hard for the defendant to understand what was said.

The defendant testified he stopped using a hearing aid in 1983 or 1984 when the device slipped out of his pocket and was chewed up by a dog. He stated he attempted to obtain a new hearing aid in 1986. He, too, testified that background noises interfered with his ability to understand what was being said and that he had difficulty hearing children’s voices.

The trial court acknowledged the defendant had a history of hearing loss, but determined there was not a sufficient basis to raise a bona fide doubt as to the defendant’s fitness to stand trial because of his hearing impairment. The court stated it had been in contact with the defendant during the course of proceedings for approximately a year, in hearings and pretrial conferences, and had observed the defendant and his ability to communicate with his attorney. It noted that the defendant offered notes or suggestions to his attorney and many times, after the court discussed matters with the attorneys, the defendant had asked to be heard upon the points raised. Based on its observations of the defendant and contacts with him, the court concluded that the defendant was able to hear sufficiently to ensure he received a fair trial. The court indicated certain accommodations would be made, such as proceeding slowly and cautiously while making certain everyone could be heard.

The defendant also filed a motion for a bill of particulars on September 17, 1987, seeking the exact date, time, and location of the offenses. Counts II and V alleged that the offenses occurred on or about January, February, or March of 1987. At the October 2 hearing on the motion, the State agreed to respond to the defendant’s motion, but informed the court that it would be difficult to provide more specific details due to the young ages of the witnesses and the fact that the incidents occurred over a period of months. The court allowed the defendant’s motion and noted the State’s response would be as full and complete as it could be, based on what had been said. Subsequently, numerous hearings were held on the defendant’s fitness to stand trial and need for testing and a hearing aid, on motions of the defendant’s attorneys to withdraw, and on motions to continue. At a May 6, 1988, hearing on various motions, the defendant noted the bill of particulars had not been filed. The State informed the court it would respond by May 10, and the attorney for the defendant stated, “That’s fine. I have no objection.”

At the conclusion of a May 13 hearing, the defendant reminded the court that the bill of particulars needed to be filed. The prosecutor stated he had forgotten about it, but would file the response. On May 20, the defendant filed a motion for sanctions against the State for its failure to file the bill of particulars. The State filed the bill of particulars as to counts II and V on May 23. The bill stated that the conduct complained of occurred on several occasions at the defendant’s residence at night between September of 1986 and March of 1987.

At the hearing on the defendant’s motion for sanctions, the defendant requested that the State be precluded from presenting any witnesses in the case. The State responded that it had provided the defendant with full discovery, including the information contained in the bill of particulars, in May or June of 1987, and that the bill contained as much specific information as the State could obtain from the victim, who was then only eight years old. The court denied the motion for sanctions, noting that the case had been difficult to bring to trial, that the State responded to the motion for the bill of particulars, that discovery had previously been provided, and that the defendant’s case had not been prejudiced.

The defendant also filed a pretrial motion to suppress statements he made to the police following his arrest, alleging the statements were not voluntary and were made without benefit of counsel. At the hearing on this motion, the public defender and the defendant’s private counsel appeared on the defendant’s behalf. After hearing the testimony and the arguments of counsel, the court denied the defendant’s motion to suppress.

The cause was scheduled to proceed to trial before a jury on May 31, 1988, but on May 30, the defendant waived his right to a jury trial. A bench trial was held before Judge Stephen Evans on June 1 and June 2, and on June 6, Judge Evans issued an opinion letter stating he found the defendant guilty of both counts of aggravated criminal sexual assault. The defendant was later sentenced to concurrent 20-year terms of imprisonment. This appeal followed.

The defendant claims the trial court’s refusal to provide him a hearing aid and its refusal to find a bona fide doubt as to his fitness to stand trial resulted in a denial of his right to confront his witnesses and prevented him from adequately assisting in his defense. The State submits the trial court did not abuse its discretion in ruling as it did on these issues. We agree with the State.

There is no dispute that the defendant suffered from a hearing impairment and wore a hearing aid for many years. Nor is there any dispute that the accused has the right to be present and assist at his trial. Under the circumstances in this case, we find the court’s rulings did not result in the denial of a fair trial. The defendant’s hearing loss in no way rendered him unable to understand the proceedings against him. The record establishes that despite his disability, the defendant communicated with his counsel and the court during the trial and various pretrial proceedings. The trial judge, who was in a superior position to observe the defendant and to evaluate his behavior and ability to comprehend the proceedings, properly took into account his personal observations of the defendant in determining whether a bona fide doubt existed. (People v. Branson (1985), 131 Ill. App. 3d 280.) Judge Evans specifically noted that he had observed the defendant in numerous proceedings for over one year, noted the defendant had communicated with his attorneys, listened attentively, and asked to be heard on certain issues after they were discussed among the judge and the attorneys. This led the court to believe there was not a bona fide doubt as to fitness. We agree that the record demonstrates that the defendant was able to understand the nature of the proceedings against him and he was able to cooperate with counsel. Accordingly, we find that the trial court did not abuse its discretion in refusing to find a bona fide doubt as to fitness.

The defendant’s assertion that the court’s denial of his request for a hearing aid deprived him of a fair trial is similarly unpersuasive. It is well established that a trial court should afford a handicapped defendant reasonable facilities for confronting and cross-examining the witnesses as circumstances will permit. However, the exact manner in which this result is reached must depend on the circumstances of the case and, to a considerable extent, be left to the sound discretion of the court. (People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 287.) In the instant case, the trial court was clearly concerned about the defendant’s hearing impairment, but as detailed above, the court was convinced from its observations of the defendant that he communicated with counsel and the court, responded appropriately to questions asked of him, and actively participated in the proceedings. In denying the defendant’s motion for a hearing aid, the court stated the trial would be conducted more slowly and cautiously if necessary to ensure the defendant heard everything that was said. The record of proceedings discloses that witnesses were occasionally instructed to speak more loudly, and questions and answers were repeated if the defendant indicated he had been unable to hear them. Based on the foregoing, we hold that the court’s refusal to provide the defendant a hearing aid was not an abuse of discretion.

The defendant also contends he was denied a fair trial because the State filed the bill of particulars late, just nine days before trial, and because the bill expanded the time period in which the offenses allegedly occurred. The State argues that the defendant was not prejudiced by the timing of the filing of the bill of particulars or by the contents of the bill. Again, we agree with the State.

The parties acknowledge that the purpose of a bill of particulars is to provide more specificity so the defendant is able to understand the nature of the charges or prepare his defense. (People v. Aud (1972), 52 Ill. 2d 368.) The original charges alleged that the offenses occurred in January, February, or March of 1987. At the hearing on the defendant’s motion for a bill of particulars, which was held on October 2, 1987, the State agreed to respond to the motion, but informed the court that it would be difficult to provide more specific details because the victim was very young and because the acts alleged occurred over a period of months. The filing of the bill of particulars was again raised at a May 6, 1988, hearing. The court allowed the State to file its response on May 10, 1988, but it was not filed until May 23. The bill stated that the alleged offenses occurred between September 1986 and March 1987. At the hearing on the defendant’s motion for sanctions, the court denied the motion after it determined that the State did not intend to harm the defendant’s case and that the defendant suffered no prejudice.

The State’s response to the defendant’s bill of particulars was clearly late, and it expanded the time span in which the offenses allegedly occurred. However, we find that neither of these circumstances resulted in any prejudice to the defendant. From discovery material the defendant received early in the case, the defendant was informed that the victim told police the events took place at the defendant’s house during the previous six to eight months. Further, the defendant merely made nonspecific allegations that the late filing and the contents of the bill of particulars hindered his defense, but has failed to demonstrate that he suffered any prejudice. Moreover, the defendant did not request a continuance in order to better prepare his defense in response to the bill of particulars. We agree with the trial court that there was no intent on the part of the State to prejudice the defendant, that the State responded as fully as it was able given the victims’ young age, and that the defendant has not established any prejudice. Accordingly, the trial court’s denial of the motion for sanctions does not constitute reversible error.

Finally, the defendant argues he was denied effective assistance of counsel at the hearing on his motion to suppress because his attorney failed to adequately cross-examine a witness. The State correctly contends that this issue has been waived. Our supreme court has repeatedly held that a defendant’s failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal. (See, e.g., People v. Enoch (1988), 122 Ill. 2d 176.) The defendant filed two post-trial motions but failed to raise this issue in either one of them. Therefore, the issue of counsel’s incompetency at the suppression hearing has been waived. Furthermore, as the evidence against the defendant was not closely balanced, justice does not require the application of the plain error doctrine.

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

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE WOMBACHER

text:
    GERTRUDE BART et al., Plaintiff-Appellee and Cross-Appellant, v. UNION OIL COMPANY OF CALIFORNIA, Defendant-Appellant and CrossAppellee.
    Third District
    No. 3-87-0814
    Opinion filed February 3, 1989.
    Rehearing denied July 20, 1989.

      Robert H. Joyce, Gus A. Paloian, Brent I. Clark, and Sarah A. Biety, all of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Mark A. Lies II, of counsel), for appellant.
    Patrick J. Crimmins, of Clancy & McGuirk, P.C., of St. Charles (Wendell W. Clancy and John Hoscheit, of counsel), for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Defendant, Union Oil Company of California, operated an oil refinery in Lemont, Illinois. On July 23, 1984, an explosion occurred at the refinery at 5:52 p.m. Subsequently, a second explosion and fire took place at approximately 6:20 p.m. Alex Bart, a security guard at the refinery, was killed in the explosion; his body was discovered at 9 p.m. In all, the remains of 17 victims were found. The decedent’s widow, Gertrude Bart, brought suit in the capacity as special administrator of the estate of her husband to recover damages resulting from the accident.

Mr. Bart was employed as a security guard by the Industrial Patrol Service Corporation. Industrial assigned Bart to perform security services in the premises of the defendant’s refinery. On the day of the accident, Bart was assigned to the beach patrol, which required him to patrol the defendant’s property outside the boundaries of the refinery. Even in the case of emergency (a “222” alarm) he was to remain outside of the refinery. Bart’s patrol was to end at 6 p.m. The last time he was seen alive was at 5:30 p.m. while he was inside the plant. There was no explanation for his presence at that location, although the plaintiff contends Bart was responding to the “222” alarm, which was given shortly after 5:16 p.m.

Mr. Bart was 63 years of age at the time of his death. His wife of 45 years was 66 years at the time. The Barts had five adult sons. Bart was earning $6.10 per hour and was working on a part-time basis when the accident occurred.

Mrs. Bart’s suit sought damages for personal injury and wrongful death under both the theories of negligence and res ipsa loquitur. The defendant filed a third-party complaint against numerous entities who had designed, built and repaired the vessel responsible for the accident.

On June 4, 1987, a trial commenced. On July 17 the jury reached a verdict in favor of the plaintiff in the total amount of $3 million. Specifically, the verdict reflected $700,000 for conscious pain and suffering; $16,000 for loss of wages; $80,000 for loss of services; $4,000 for funeral expenses and $2,200,000 for loss of love, affection and guidance. On October 29, 1987, the defendant’s motion for remittitur was granted in part and the court remitted $1,200,000 of the $2,200,000 amount awarded for loss of love, affection and guidance. The court entered an unconditional judgment for the plaintiff in the amount of $1,800,000.

The defendant brings this appeal raising numerous issues for review pertaining to alleged trial court errors. The plaintiff raises three issues upon cross-appeal. After a thorough review of the trial and court records, this court has determined that this cause must be reversed and remanded for retrial. Due to the quantum of points raised pursuant to that end, we shall address in this disposition only those matters we considered most meritorious in prompting our determination and which will assist upon retrial.

I

Initially, we consider the defendant’s contention that Mr. Bart was a “loaned employee” and thus his exclusive remedy lay within the purview of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.).

The determination of one’s employment status is dependent upon a range of specific factors, articulated in the case law of this State. While a cursory appraisal of the facts at bar might conceivably allow a trier to conclude that Bart was a loaned employee, we determine that the trial court’s disposition of the motions seeking summary judgment and directed verdict were based upon the correct legal conclusion that Bart was an employee of Industrial Patrol. The trial court's holdings will not be disturbed upon this issue, and the defendant’s position that a directed verdict or a judgment notwithstanding the verdict was mandated is incorrect as a matter of law.

We next consider whether the $700,000 verdict figure for conscious pain and suffering can stand in light of the record and proof at trial.

No witnesses testified that Mr. Bart was seen subsequent to the initial explosion and prior to discovering his dead body. The testimony presented by the plaintiff on this issue, that of the coroner’s pathologist, Dr. Blum, was speculative and, therefore, inconclusive. Dr. Blum testified that based on his knowledge of the relevant facts, Bart may have survived the first explosion and suffered pain prior to his death. However, he also testified that it was equally probable that Bart may not have sustained injury prior to the second explosion. This testimony is not a sufficient basis to support the survival claim verdict.

The evidence presented concerning the time period involved must do more than provide speculation that the decedent was conscious and suffered pain. (Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 476 N.E.2d 599.) Accordingly, the court erred in instructing the jury on this matter; more properly, a directed verdict lay on this claim. In any event, a judgment non obstante verdicto should have been entered after the verdict.

Further, Dr. Blum’s testimony was improperly admitted inasmuch as it was in violation of Supreme Court Rule 220(d) (107 Ill. 2d R. 220(d)). The rule directs that, to the extent that the facts known, or opinions held by an expert, have been developed in discovery proceedings through interrogatories, depositions, or requests to produce, the expert’s direct testimony at trial may not be inconsistent with, nor go beyond, the fair scope of the facts known or opinions disclosed in such discovery proceedings. When deposed prior to trial, Dr. Blum stated he could not opine, based upon a reasonable degree of medical certainty, whether Mr. Bart had suffered any conscious pain and suffering. The rules of evidence should be interpreted and applied to secure fairness in administration and to prevent unfair prejudice. The purpose of Rule 220 is to permit litigants to ascertain and rely upon the opinions of experts retained by their adversaries. (107 Ill. 2d R. 220, Committee Comments.) Consequently, paragraph (d) limits the permissible scope of an expert’s testimony to those opinions expressed in response to discovery.

Next, we find that the trial court’s decision to remit the jury award for loss of consortium, as distinct from its procedure, was well founded. The trial court remitted $1,200,000 of the $2,200,000 verdict awarded for loss of love, affection and guidance. However, we believe that the ultimate award of $1 million for loss of consortium appears intolerably high in light of the facts in evidence in the record. After a thorough review of the record, we find that there is no real evidentiary basis for the $1 million remitted verdict figure. We believe that considering the decedent’s age and the emancipation of his children extends the subject recovery beyond the flexible limits of fair and reasonable compensation. However, upon retrial, the plaintiff will have the opportunity to remedy such deficiency by supplying a more substantial and relevant evidentiary basis upon which to rest the consortium component of the verdict.

Neither the evidence, nor the weight of the evidence, sustains such a figure as the one we review today. When a reviewing court believes that an excessive award is the result of sympathy or prejudice, the errors need be cured by remandment for new trial because findings pertaining to material facts may have been influenced by such improper elements. (See Barrow v. Lence (1958), 17 Ill. App. 2d 527, 151 N.E.2d 120.) Thus, this court exercises the broad powers of remandment with which it is endowed to achieve a just and equitable result for the litigants, and orders a new trial in pursuance of the better attainment of justice.

II

While the decisions made above are dispositive of this appeal, there are additional serious issues which deserve detailed comment. Accordingly, we consider the defendant’s allegation that the trial court erred in admitting the photographs of the charred bodies of victims William Drury and Kenneth Armour, as well as enlarged photographs of Mr. Bart’s remains. This court finds that the probative value of the photographs of Mr. Drury and Mr. Armour was far outweighed by the prejudicial and inflammatory effect they produced. Furthermore, the testimony received concerning Mr. Drury’s injury and subsequent death should not have been admitted. See Vujovich v. Chicago Transit Authority (1955), 6 Ill. App. 2d 115, 126 N.E.2d 731.

The photographs of Mr. Bart’s badly burned body were not necessary to show material facts or conditions. Collectively, these photos and the testimony related thereto were far more prejudicial than probative in regard to the death of Bart. The subject photographs would not be otherwise admissible, except to prove pain and suffering prior to death, and, as we have noted, there was no evidence found in the record to substantiate the contention of plaintiff that decedent Bart was alive at the time he sustained burns. It is true that where evidence is probative as to the issues, but indirectly prejudicial, the trial court may admit such pictures or exhibits. However, where such evidence is not probative and is prejudicial in character, it is error to admit such exhibits, pictures, etc., as evidence. See Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906.

The defendant’s next assertion of error relates to the trial court’s action in ordering a remittitur without the plaintiff’s consent. (See Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E.2d 604.) When a trial court determines that a damage award exceeds the amount of damages properly proven, it may enter a remittitur. Remittitur is a judicial determination of recoverable damages and is not equated with mutual concessions by, or agreement among, parties litigant. A court does not have authority to enter or order a remittitur unless the prevailing party litigant consents thereto. (McElroy v. Patton (1970), 130 Ill. App. 2d 872, 265 N.E.2d 397.) It must be noted that the normal disposition in the case of an error in the practice of remittitur would be to remand the cause to afford the plaintiff an opportunity to accept the remittitur, with the knowledge that a refusal to accept such a remittitur would require a new trial on the issue of damages. Since we have previously determined a new trial is necessary for other reasons, this issue is unlikely to arise again and need not be further considered.

We now turn to the defendant’s contention that the plaintiff’s res ipsa loquitur theory was inapplicable as a basis for recovery. The res ipsa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if the plaintiff demonstrates that he or she was injured. It is applicable when the precise cause of injury is not known by the plaintiff. (Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 501 N.E.2d 1270.) The duty of the trial court in the first instance is to decide whether, as a matter of law, the res ipsa loquitur doctrine applies at all. Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216.

To avail itself of the res ipsa loquitur doctrine, the plaintiff must demonstrate that he was injured (1) in an occurrence that would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of the defendant, and (3) under circumstances indicating the injury was not due to any voluntary act or neglect on the part of the one claiming the doctrine. Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569.

In the instant case, proffered testimony indicated that a crack or blister in a vessel at the refinery probably reacted with the hydrogen inside the vessel and led to the subject explosions. However, the mere identification of the probable cause does not determine whether the injury would have occurred in the absence of negligence. (See Coffey v. Brodsky (1987), 165 Ill. App. 3d 14, 518 N.E.2d 638.) If there is an inference of general negligence and proof of specific negligence, it should then be for a jury to determine under which theory, if any, the plaintiff should prevail. (Erckman v. Northern Illinois Gas Co. (1965), 61 Ill. App. 2d 137, 210 N.E.2d 42.) The court properly allowed both specific negligence and res ipsa loquitur to go to the jury; a directed verdict was not warranted by the facts at bar.

We next consider the matter of the trial court’s refusal to give the defendant’s jury instruction calling for a determination of whether Mr. Bart’s status was that of a licensee or an invitee. Upon appeal the defendant urges that a determination of Bart’s legal status would critically impact the nature of the duty it owed him. It asserts that the trial court’s failure to properly instruct the jury removed a vital issue from the jury’s domain and resulted in the imposition of a higher standard of care than was warranted by the evidence. This court finds that the subject instructions were not relevant to any issue raised or framed in the pleadings of this case or in the formal proof. The defendant has not sustained his burden of proving that an evidentiary basis existed upon which to enter the proffered instructions.

Ill

Among the plethora of issues raised by the defendant on this appeal there is another group of asserted errors which deserve comment, even though they are not in any way dispositive of the appeal. We note that the discovery process was fairly administered and the defendant’s objections pertaining thereto will not be addressed by this court. Further, the extensive evidence of H2S gas is irrelevant to the issues and should not have been admitted over objection at trial.

The defendant contends that the trial court erred in admitting the testimony of the plaintiff’s experts because they lacked the necessary skill and experience to render an opinion. The sufficiency of qualifications of an expert rests largely in the sound discretion of the trial judge. The degree and manner of knowledge and experience required of an alleged expert is directly related to the complexity of the subject matter and the corresponding likelihood of error by one insufficiently familiar therewith. (People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795.) After assessing the admission of the expert testimony in the trial court on the basis of the assistance it provided for the trier of fact, we sustain the introduction of the testimony.

IV

Upon cross-appeal, the plaintiff asserts that the trial court erred in dismissing its counts based upon alleged violations of the Public Utilities Act (Ill. Ann. Stat., ch. 1112/s, par. 1 — 101 et seq. (Smith-Hurd 1988)) and the Gas Pipeline Safety Act (Ill. Ann. Stat., ch. 1112/s, par. 551 et seq. (Smith-Hurd 1988)). Also raised for review is the propriety of the trial court’s denial of the plaintiff’s request for prejudgment interest.

The Public Utilities Act (Ill. Ann. Stat., ch. lll2/3, par. 1 — 101 et seq. (Smith-Hurd 1988)) regulates the operation of public utilities. The trial court ruled that this defendant was not a public utility within the meaning of the Act and dismissed the appropriate counts from the complaint.

We affirm the trial court’s dismissal. The mere fact that the thing sold by a company is fuel or a product or service ordinarily sold by public utility companies does not of itself render the seller a public utility. (Mississippi River Fuel Corp. v. Illinois Commerce Comm’n (1953), 1 Ill. 2d 509, 116 N.E.2d 394.) In Mississippi River Fuel Corp., the court stated:

“ ‘A public utility implies a public use of an article, product or service, carrying with it the duty of the producer or manufacturer, or one attempting to furnish the service to serve the public and treat all persons alike, without discrimination. * * * When once determined to be a public utility under the statute the company must furnish all who apply, and the service it furnishes must be without discrimination and without delay.’ ” (1 Ill. 2d at 516, 116 N.E.2d at 398, quoting Highland Dairy Farms Co. v. Helvetia Milk Condensing Co. (1923), 308 Ill. 294, 300-01.)

In the instant case the defendant has not held itself out to be a public utility and there has been no proffered evidence that the Illinois Commerce Commission has exercised jurisdiction over the defendant as a public utility.

Next, the Illinois Gas Pipeline Safety Act (Ill. Ann. Stat., ch. 1112/3, par. 551 et seq. (Smith-Hurd 1988)) promulgates safety standards for the operation of pipeline facilities. The trial court dismissed the appropriate counts concerning the Act from the plaintiff’s complaint in ruling that the Act did not provide civil damages for an individual plaintiff.

We sustain the trial court’s dismissal. Under the statute, actions to recover penalties under the Act must be brought in the name of the People of the State of Illinois. The action is to be prosecuted by the Attorney General. (See Ill. Ann. Stat., ch. 1112/3, par. 557(c) (Smith-Hurd 1988).) We have found no case authority where a reviewing court has implied a private cause of action from the Act.

Lastly, we sustain the trial court’s denial of prejudgment interest. There is no statutory authority authorizing a trial court to impose prejudgment interest.

For all of the foregoing reasons the judgment of the circuit court of Will County is affirmed in part and reversed in part and remanded for further proceedings and a new trial consistent with this opinion.

Affirmed in part; reversed in part and remanded.

STOUDER, P.J., and SCOTT, J., concur.