author: JUSTICE HARRISON

text:
    BOATMEN’S NATIONAL BANK OF HILLSBORO, Plaintiff and Counterdefendant-Appellee, v. HOWARD F. WARD, Indiv. and as Trustee, et al., Defendants and Counterplaintiffs-Appellants.
    Fifth District
    No. 5—91—0169
    Opinion filed June 22, 1992.
    — Rehearing denied July 29, 1992.

      Donald W. Jenkins and C. Elizabeth Belmont, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellants.
    Kelly D. Long, of Kelly D. Long Law Offices, of Hillsboro, and Robert B. Hoemeke and Duane L. Coleman, both of Lewis, Rice & Fingersh, of Clayton, Missouri, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Boatmen’s National Bank of Hillsboro (the Bank) filed suit in the circuit court of Montgomery County to foreclose on defendant Howard E Ward’s farm. In his answer, Ward raised as an affirmative defense that the Bank should be estopped by its misconduct from collecting the debt he owed. Based on the same allegations of misconduct, Ward also filed a counterclaim against the Bank for damages. The specific misconduct charged by Ward was that the Bank had breached a fiduciary duty to him. Ward’s counterclaim was first tried before the jury, which returned a verdict in his favor in the amount of $248,614.96. The jury also awarded Ward an additional $1 in exemplary damages on the grounds that the Bank’s breach of its fiduciary duty was willful and wanton.

Following the jury’s verdict, the court ruled that the Bank was still entitled to recover on its foreclosure claim. The court awarded the Bank damages exactly equal to the jury’s verdict in favor of Ward, $248,614.96. After receiving additional evidence, the court also awarded the Bank an additional $178,217 to compensate it for the attorney fees it had expended or would be expending in collecting on the debt. As soon as these rulings were made, the court sent the case back to the jury for a determination as to whether Ward was entitled to additional damages on his counterclaim. The jury found that he was and increased his damage award by $300,000.

On September 21, 1990, the circuit court entered judgment on the jury’s verdict in favor of Ward on his counterclaim in the amount of $548,615.96, which consisted of the $248,614.96 original compensatory award and the $1 exemplary award plus the jury’s $300,000 supplemental award. From this, the court deducted the $248,614.96 which it had awarded to the Bank on its foreclosure suit and the Bank’s $178,217 in attorney fees. With this adjustment, Ward was left with a net judgment against the Bank in the amount of $121,784, and the court ruled that his debt to the Bank was fully satisfied.

Following various post-trial motions, the circuit court affirmed its judgment against Ward on the Bank’s foreclosure action, but it found that under the terms of the debt instruments executed by Ward, he could only be held liable for $36,000 of the Bank’s attorney fees. It therefore ordered a remittitur of the attorney fee portion of the Bank’s judgment against Ward from $178,217 to $36,000. The circuit court also set aside in its entirety the damages awarded to Ward, granting judgment notwithstanding the verdict to the Bank on Ward’s counterclaim. Ward now appeals. For the reasons which follow, we reverse the circuit court’s judgment and reinstate the jury’s verdict with certain modifications.

On this appeal, Ward first argues that the circuit court erred in entering judgment notwithstanding the verdict against him on his counterclaim for breach of fiduciary duty. We agree. In a lengthy and detailed written judgment, the circuit court explained that it had entered judgment notwithstanding the verdict on the counterclaim because, based on its reading of the record, it believed that the jury was simply wrong. In the judge’s words, “I believe I am correct and the Jury was in error.” This was an improper test.

Jury verdicts should not be disturbed on a motion for judgment notwithstanding the verdict merely because the jury could have found differently or because the judge might have found other conclusions to be more reasonable.(Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 512, 492 N.E.2d 1364, 1365.) A judgment notwithstanding the verdict should be entered only when all of the evidence, when viewed in the light most favorable to the party who prevailed at trial, so overwhelmingly favors the party who lost at trial that no contrary verdict based on that evidence could ever stand. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 139-40, 554 N.E.2d 223, 226.) Where the evidence demonstrates a substantial factual dispute or where the assessment of the witnesses’ credibility or the resolution of conflicting evidence may determine the outcome, a court errs in entering judgment notwithstanding the verdict. Wade v. City of Chicago Heights (1991), 216 Ill. App. 3d 418, 441-42, 575 N.E.2d 1288, 1304.

Under these criteria, judgment notwithstanding the verdict was improper on the counterclaim for breach of fiduciary duty. The elements of that counterclaim were explained to the jury in an instruction tendered by the Bank. The instruction provided:

“A fiduciary relationship is created where confidence is reposed on one side and resulting superiority and influence is found on the other. In order to establish a fiduciary relationship between Howard F. Ward and [the] Bank, Mr. Ward must show that:
First, Howard F. Ward placed trust and confidence in [the] Bank;
Second, Howard F. Ward must also show that [the] Bank actually or impliedly, agreed to exercise the Bank’s judgment on behalf of Howard F. Ward; and
Third, [the] Bank gained influence and superiority over Howard F. Ward.
Factors to be considered in determining whether a fiduciary relationship exists include the degree of kinship, disparity of age, health, mental condition, education and business experience between the parties, and the extent to which the allegedly servient party (Mr. Ward) entrusted the handling of his business and financial affairs to the other ([the] Bank) and reposed faith and confidence in the other.
Once a fiduciary relationship is established, [the Bank] must then show the fairness of the transaction at issue.
If you determine from the evidence that the conduct of the defendant was a breach of this relationship between the parties, you should award as damages the value of whatever you may find him to have gained as a result of this wrong.
If you should further find that the defendant’s conduct was willful and wanton, then you may consider in addition an award of punitive damages.”

In this case, there was ample evidence from which the jury could have found the existence of a fiduciary duty in accordance with this instruction. The record showed that Ward was a farmer in his sixties whose mental health was in decline. Although he was capable of conducting his personal affairs, his accounting procedures were haphazard. He used what one Bank employee described as “shoe box record keeping.” Ward had close and long-standing personal ties to the Bank and many of its key employees. Ward’s father was formerly a member of the Bank’s board of directors. He had known the Bank’s president, Earl Chapin, for 30 years, both in business and socially. He had known the Bank’s senior vice-president, David White, for the same length of time. White had worked with Ward’s father at the Bank and regarded Ward as a personal friend. So close was the relationship that when Ward became embroiled in a custody dispute during his divorce from a previous wife, White offered Ward the Bank’s financial assistance to help him keep custody of his son.

Expert testimony adduced by Ward showed that his financial situation deteriorated badly between 1979 and 1983, when the region suffered a serious drought. During this period, Ward came to rely more and more on the Bank to help him manage his financial affairs. Ward had only a ninth-grade education, and he did not even prepare his own financial statements when he needed to to borrow money. He relied on the Bank to do this for him. He evidently came to trust the Bank so much that he would sign the documents it prepared for him without even reading them. According to Tom Justison, the Bank officer who was most heavily involved with Ward beginning in 1983, Ward would simply glance at the documents and sign them. When the Bank suggested that Ward subscribe to an accounting service, he did so. When he became eligible for emergency drought relief loans from the Federal government, the Bank helped him get them.

Evidently, his friends at the Bank were the only ones to whom Ward confided the details of his finances. As his situation worsened, he met with representatives of the Bank incessantly. Justison denied that he ever told Ward how to operate his farm. He admitted, however, that he would give Ward his opinion on various matters when asked, and he was evidently asked a great deal. By Justison’s own account, Ward met with him between 25 and 50 times a year between the years 1984 and 1988. As all of this was happening, the Bank was fully aware of Ward’s situation and his personal problems, and the extent of his dependency on the Bank was, or should have been, manifest. Yet, the Bank’s representatives did nothing to distance themselves from Ward. They made no effort to keep him at arm’s length when carrying out business dealings with him. Nor did they ever suggest that he might benefit from independent advice from some third party. Rather, they seemed entirely content for Ward to allow them to exercise their judgment on his behalf.

The trust and confidence Ward placed in the Bank allowed it to gain influence and superiority over him. In the end, he was willing to accept uncritically whatever requirements the Bank imposed so long as he was able to continue his farming operations. Under these circumstances, there was ample support for the jury’s conclusion that a fiduciary relationship existed between the Bank and Ward. The Bank cites numerous authorities in an attempt to refute this conclusion, but in each case the facts are distinguishable from those present here.

In granting judgment notwithstanding the verdict in favor of the Bank on Ward’s counterclaim, the circuit court held that even if the Bank did owe a fiduciary duty to Ward, “its conduct toward Ward does not begin to constitute a breach of that duty.” This conclusion is also untenable. As the jury instruction quoted above indicates, once a fiduciary relationship between the Bank and Ward was established, the Bank was required to show “the fairness of the transaction at issue.” This instruction encapsulated the general proposition that

“[w]here a fiduciary relationship exists at the time of a transaction whereby the dominant party appears to gain, the transaction is deemed presumptively fraudulent but such presumption is not conclusive and may be rebutted by clear and convincing proof that the dominant party has exercised good faith and had not betrayed the confidence reposed in him [citation]. The burden rests upon the dominant party to produce such evidence. In general, to overcome this presumption of fraud and undue influence the dominant party must show: (1) full disclosure of all relevant information to the subservient party; (2) adequate consideration; (3) competent and independent advice to the principal before completing.” Glass v. Burkett (1978), 64 Ill. App. 3d 676, 680-81, 381 N.E.2d 821, 824.

In this case, the disputed transaction involved the restructuring of Ward’s debt to the Bank in 1984. Prior to this restructuring, Ward’s financial situation had degenerated to the point that it no longer supported the amount of credit which had been extended to him by the Bank. The Bank examiners had begun to question the situation, and the Bank, which had previously and repeatedly noted in internal meetings that Ward might be in difficulty, ultimately concluded that it would not extend further credit to him. When Ward was advised of this decision, he became distraught. He recalled at one point breaking down in tears in his barn. He considered filing for bankruptcy but “didn’t know who to go to or where to start it.” Plaintiff’s experts testified that filing bankruptcy was precisely what plaintiff Ward should have done. An independent ad-visor would have so recommended to Ward, but Justison admitted that he never suggested this as an option.

The jury could have found that the reason Justison did not suggest bankruptcy is that it would have left the Bank with a substantial loss. Not including a life insurance policy payable on Ward’s death, the amount of Ward’s debt exceeded the amount of security the Bank had by approximately $73,500. The Bank’s solution was to obtain more collateral from Ward. The Bank already had a mortgage on 33 acres of pasture owned by Ward and on Ward’s undivided one-third interest in an additional 99-acre tract. This original mortgage was cancelled, and a new one was issued on the same property to secure a $100,000 promissory note. The only other real estate Ward had an interest in was a 152-acre parcel of land which had previously belonged to his father. Ward had only a life estate in that property. The remainder was to go to his children. The Bank agreed, however, that if the children would mortgage their interest in the property along with Ward, thereby providing it with an additional $100,000 in security, it would continue to finance Ward so that he could maintain his farming operations.

One of Ward’s daughters, Barbara Terneus, apparently obtained legal counsel to advise her on the matter, and she refused to participate in the scheme. A second daughter, Mary Ann Dillon, did agree to sign the mortgage for her father. Before proceeding, Dillon discussed the matter with David White, the senior vice-president at the Bank. White would not tell her how much her father owed. Dillon did not believe that her father should be incurring additional debt, but White told her, “Come on, Mary Ann, all he needs is two good years.” White told Dillon that the plan was sound and that she did not need to consult a lawyer. Dillon had previously worked for White’s father, and she ultimately signed the mortgage because of her trust in White. She testified that she would not have done so had the request come from someone at the Bank she did not know.

Dillon spoke with her sister Sharon Lohman and endorsed the plan. Lohman testified that she was worried about signing the mortgage. She did not talk with anyone from the Bank before proceeding, and her father would not tell her why he wanted her to sign it. She recalled her conversation with Dillon and stated that Dillon had told her she had talked to David White, who had claimed that it was simply “paper work for the auditors.” She also stated that Dillon had told her of White’s assurance that “this won’t come back on them.” After this conversation, Lohman called White directly. Like Dillon, she trusted White. He told her that the mortgage “was just more or less paper work,” and that it “wasn’t anything to be worried about.”

In reality, the evidence showed that this transaction was much more than a question of simple paper work. Ward could not possibly have resolved his debt problems after “only two good years,” as White represented. In fact, the experts agreed that there was no reasonable chance that Ward could ever pay off his debts under the new financing plan. Although the Bank did permit Ward to continue his farming operations for several more years, his farming operations were basically doomed at the time the new plan was implemented. The only real beneficiary under the plan was the Bank. Its previous loss exposure of $73,000 was, after various adjustments were made and the new security was offered, converted to a situation where it had substantially more security than it needed to cover Ward’s debt. According to one expert, the new plan was, for Ward’s daughters, tantamount to a forfeiture of their interest in the 152-acre parcel.

Plaintiff, for his part, made substantial interest payments to the Bank in the years which followed, but he was unable to reduce the principal on either of the two $100,000 notes secured by the mortgages. By the time of trial, his indebtedness to the Bank totaled $248,614.96. By contrast, one of plaintiff’s experts testified that had Ward not followed the Bank’s plan and had instead filed for bankruptcy, as he should have, he would not only have avoided this debt but would actually have made several hundred thousand dollars. Overall, according to the expert, Ward may have been more than a half a million dollars better off. Under these circumstances, the jury could certainly have found that the Bank failed to sustain its burden of showing that the disputed transaction was fair. With respect to the issue of liability, the circuit court therefore erred in entering judgment notwithstanding the verdict in favor of the Bank on Ward’s counterclaim.

In its lengthy order, the circuit court indicated that had the Bank not been entitled to judgment notwithstanding the verdict, it would at least have deserved a new trial on Ward’s counterclaim. At no point in the judgment, however, did the court actually make a conditional grant of a new trial in the event its judgment notwithstanding the verdict were reversed. Given the care and detail which the circuit court devoted to its judgment, we do not believe that this omission was inadvertent. Because the circuit court did not enter such a conditional order for a new trial, the question of whether a new trial might have been warranted is not properly before us.

Even if we assumed that the circuit court’s judgment could be construed as granting a conditional right to a new trial, that judgment could not stand. The standard of review on an appeal from a trial court’s grant of a new trial is whether the trial court abused its discretion. (Bishop v. Baz (1991), 215 Ill. App. 3d 976, 980, 575 N.E.2d 947, 951.) In this case, the circuit court thought that a retrial would be necessary because Tom Justison, one of the Bank’s employees, was improperly examined regarding an unrelated case in which he was accused of misconduct in the handling of a Bank customer’s affairs. As it turns out, that case had been vacated, a fact which Ward’s counsel overlooked. We do not believe, however, that counsel’s error was any basis for a new trial. References to the vacated case were brief, and the Bank did not even raise a contemporaneous objection the first time that the case was mentioned. We note, moreover, that when it was eventually discovered that the judgment had been vacated, the court issued a strong admonition to the jury to disregard it. The record in this case is voluminous, and after having studied it carefully, we are at a loss to understand how this one incident could have had any real impact on the jury’s verdict. The error was harmless and cannot serve as the predicate for a new trial.

In referring to the possibility of a new trial, the circuit court also opined that one of Ward’s experts should not have been allowed to give her opinions as to Ward’s damages. The circuit court’s particular objections warrant no protracted discussion. We think it sufficient to say that those objections go to the weight of the expert’s testimony and not to its admissibility. The Bank had ample opportunity to cross-examine the expert and availed itself of that opportunity. It was for the jury to consider the significance of the expert’s opinions and the validity of her conclusions, and it made that decision. The court has no right to usurp the jury’s decision simply because it would have decided the matter differently. Yet, that is precisely what would be happening if a new trial were granted here. No new trial should have been granted. The jury’s verdict in favor of Ward on his counterclaim for breach of fiduciary duty must be reinstated.

Having concluded that the circuit court should not have set aside the jury’s verdict in favor of Ward on his counterclaim for breach of fiduciary duty, we also find that the circuit court erred in entering judgment in favor of the Bank on its foreclosure action. As indicated at the outset of our discussion, Ward raised as an affirmative defense to the foreclosure the same breach of fiduciary duty which gave rise to his counterclaim. Specifically, Ward contended that the Bank’s breach of fiduciary duty should estop it from attempting “to collect on any or all of its notes, mortgages or security agreements [with Ward].” Although we have found no lilinois authority directly on point, the parties have not disputed the validity of such a defense. Nor have they disputed that, if established, the defense would be complete. Both the promissory notes and the mortgages by which they were secured would be rendered unenforceable.

The questions of whether the Bank owed a fiduciary duty to Ward and whether that fiduciary duty was breached were thus common and fundamental to both the counterclaim and the affirmative defense. There is no dispute that the counterclaim was an action at law, while the foreclosure was equitable in nature. This did not, however, give the circuit court the right to make a finding on the question of breach of fiduciary duty independent of that made by the jury. Where, as here, legal and equitable proceedings are tried together, the jury’s verdict governs factual issues common to them. In the Federal courts, this rule is compelled by the need to protect a litigant’s right to a jury trial under the seventh amendment to the United States Constitution (U.S. Const., amend. VII). (Williamson v. Handy Button Machine Co. (7th Cir. 1987), 817 F.2d 1290, 1293-94.) Although the seventh amendment does not apply to State court proceedings (Hattaway v. McMillan (11th Cir. 1990), 903 F.2d 1440, 1451 n.16), our State has its own constitutional guarantee of the right of trial by jury (111. Const. 1970, art. I, §13), and we believe that it compels the same conclusion. Accordingly, we believe that the circuit court erred when it disregarded the jury’s verdict and proceeded to decide the fiduciary duty question independently. We must therefore also reverse the circuit court to the extent that it entered judgment in favor of the Bank on its complaint for foreclosure.

On the foreclosure claims, judgment shall be entered in favor of Ward. Because there can now be no foreclosure against Ward, Ward will not, of course, sustain any additional damages, such as attorney fees, on account of such a foreclosure. The factual predicate for the jury’s award of an additional $300,000 during the second phase of its deliberations has been eliminated. Thus, while we are reinstating the jury’s verdict in favor of Ward on his counterclaim, the amount of the judgment will be limited to the jury’s initial determination of $248,614.96 in compensatory damages and $1 in punitive damages.

In its judgment, the circuit court opined that it would “be wholly unconscionable” to allow the jury’s damage award to stand, while at the same time barring the Bank from foreclosing on its mortgages or otherwise collecting on its promissory notes. We disagree. Allowing Ward to keep his land, avoid the promissory notes, and recover damages would put him in a better position than he was in prior to the Bank’s wrongful conduct. As we have previously-indicated, however, had Ward declared bankruptcy as he should have, instead of throwing in more collateral and adding to his debt load, he would have been more than a half a million dollars better off than he was at the time of trial, taking into account both the money he would have earned and the debt he would have avoided. We note, moreover, that Ward ended up paying well over $100,000 in interest on his debt obligations, and that even after he receives his damage award and his property free from debt, he will still owe nearly $50,000 to the Federal government on the FmHA loan which was obtained in connection with the Bank’s 1984 restructuring plan. In addition, there was evidence that the financial strain Ward experienced as a result of having to operate under a plan which was essentially unworkable contributed, at least in part, to the deterioration of his mental health, culminating in a suicide attempt.

For the foregoing reasons, the judgment of the circuit court of Montgomery County is reversed. Pursuant to our authority under Supreme Court Rule 366 (134 Ill. 2d R. 366), we hereby enter judgment in favor of Ward and against the Bank on the Bank’s complaint for foreclosure. We reinstate the jury’s verdict in favor of Ward and against the Bank on Ward’s counterclaim for breach of fiduciary duty, and we enter judgment on that verdict in the amount of $248,614.96 in compensatory and $1 in punitive damages.

Before ending our discussion, there is one final administrative matter we must address. The Bank’s original foreclosure action named Mary Ann Dillon and Sharon Lohman as defendants. The circuit court dismissed those defendants from the case. Thereafter, it dismissed separate counterclaims Lohman and Dillon had filed against the Bank. Lohman and Dillon originally appealed the dismissal of their counterclaims, but after joining in Ward’s notice of appeal, they took no further steps to prosecute their appeals. They filed no briefs and did not appear or even request oral argument. On the Bank’s motion, their appeals are hereby dismissed.

Reversed; verdict reinstated, judgments entered; motion to dismiss appellants Mary Ann Dillon and Sharon Lohman granted.

RARICK and H. LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RETHA JOHNSON, Defendant-Appellant.
    Second District
    No. 2—89—1372
    Opinion filed July 10, 1992.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, and James P. Palermini, of Huck, Bouma, Martin & Charlton, of Glen Ellyn, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Joseph Ciaccio, of Springfield (William L. Browers, John X. Breslin, and Norbert J. Goetten, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Retha Johnson, appeals her conviction and sentence for abuse of a long-term care facility resident (Ill. Rev. Stat. 1987, ch. 38, par. 12—19(a)). She contends on appeal that (1) she was not proved guilty beyond a reasonable doubt where the evidence did not establish that an actual physical injury occurred; (2) count III charging abuse should have been dismissed because (a) it did not sufficiently set forth the nature and elements of the offense, (b) it improperly joined several distinct offenses in a single count, and (c) section 12 — 19 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 12—19(a)) is unconstitutional.

The defendant was charged by indictment on July 7, 1989, in the circuit court of Lake County, with seven counts of aggravated battery, two counts of intimidation, and one count of abuse of a long-term care facility resident.

Prior to trial, the defendant filed several motions to dismiss, including a motion to dismiss count III of the indictment charging abuse of a long-term care facility resident on the ground that it did not set forth the nature and elements of the offense charged with sufficient specificity and on the ground that section 12 — 19 of the Code, which proscribed such abuse, is unconstitutional. The circuit court denied the defendant’s motions and the State was permitted, over the defendant’s objections, to amend count III of the indictment by deleting one of the victims’ names and replacing the conjunctive “and,” which linked the victims’ names, with the disjunctive “or.” On the State’s motion, count IV of the indictment was nol-prossed.

Following a bench trial, the defendant was convicted of two counts of aggravated battery (Cyrus Cranor and Ben August) and one count of abuse of a long-term care facility resident (Cyrus Cranor and Ben August). She was acquitted of counts VI through X of the indictment. The defendant was sentenced to 30 months’ probation, including one year’s intensive probation, on her conviction for abuse of a long-term care facility resident.

Winchester House is a facility operated by Lake County in Libertyville. Winchester House provides skilled and intermediate long-term care for its 359 elderly and chronically ill residents. Many of the residents are either physically or mentally unable to care for themselves, and nurses’ aides employed by Winchester House help feed them, clean them, toilet them, change their clothes and put them to bed at night. Some of the residents are difficult to work with and resist the aides’ efforts in performing those tasks.

The defendant, Retha Johnson, was employed at Winchester House as a certified nurse’s aide from June 23, 1986, until February 7, 1989, when she was discharged as a result of alleged incidents of abuse involving eight of the residents. There was testimony during the bench trial concerning seven of these residents. (The State deleted one resident’s name prior to trial.) Inasmuch as the defendant was acquitted of the charges relating to most of those residents, however, the following facts relate only to the offenses of which she was convicted.

Cyrus Cranor, an elderly resident of Winchester House, was a difficult patient whose mind “came and went.” He frequently verbalized his hatred for black people and often hurled racial slurs at the (female) defendant such as, “You black son of a bitch.” Sometimes, while the defendant was giving care to Cranor, he would strike out at her and try to hit her with his fist or scratch her or try to bite her.

Philip Buchanan, a senior nurse’s aide and close friend of the defendant’s, testified that the defendant would sometimes lose her temper and swear at Cranor. He observed the defendant hold Cranor’s arms and slap his face on several unspecified occasions. Buchanan observed scratches on Cranor’s face one or two times, and he believed that one scratch was caused by the defendant although he did not report it.

Bonnie Jones, another nurse’s aide, corroborated both Cranor’s racial slurs and the slapping incidents. Jones also testified that she and the defendant were attempting to put Cranor on a “Rollamode” and that Cranor refused to stand up. The defendant then yanked him up, and Cranor bumped his head on a cement wall, and exclaimed “ ‘Ouch. That hurts.’ ” Jones also testified that the defendant “would walk by [Cranor] and slap him upside of the head, hit him, just whatever, if he was sitting in a chair.”

Diane Mota, a nurse’s aide at Winchester House, testified similarly that the defendant had slapped Cranor. She related that Cranor was combative with the nurse’s aides, and he often struggled with them by swinging his arms as they tried to put him to bed. Mota testified that on an unspecified occasion, the defendant punched Cranor in the chest and slapped him in the face while trying to put him to bed.

Diane Mota testified that, one day in late December 1989, she brought a sack lunch to work that included jalapeno peppers. The defendant asked Mota for one of the peppers. Mota testified that the defendant then squeezed some juice from the pepper onto a spoon and fed it to Cranor. Mota testified that ’Cranor’s face turned red, his nose started running in reaction to the pepper juice, and he put his hands up over his forehead and tried not to look at the defendant.

Patricya Merchant testified that on an occasion in 1988 she saw the defendant put ground pepper from a paper packet into Cranor’s mouth. In response, Cranor spit and thrashed about, called the defendant “nigger,” and said, “Cut that out, cut that out.” Another nurse’s aide, Angela Spiller, saw the defendant place ground pepper in Cranor’s mouth, which caused him to spit and gag. Another aide also was present during this incident which occurred in June or July 1987.

Sharmaine Brown testified that the defendant would “clonk” Cranor on the upper side of his head with her finger by snapping the middle finger away from the thumb. Brown testified that Cranor would call people names such as “nigger” and make comments to them about their being “pretty little black girls.” Brown could not remember the date or month in which she observed the defendant “clonk” Cranor but stated that it would occur whenever she worked with the defendant. The “clonking” took place in the bathroom “when we would be pottying the patients and stuff.” Brown testified she often observed the defendant slap Cyrus Cranor “upside of the head” while they were in the bathroom. Brown worked in Cranor’s unit from 1985 to 1987.

Patricya Merchant testified that she observed the defendant bend Cyrus Cranor’s fingers backward toward his wrist. Cranor said, “Ouch. Ouch. Cut that out.” Merchant testified about “range-of-motion” therapy which involved bending a patient’s fingers into backward and forward positions and from side to side in order to prevent the hands from becoming malformed. Merchant stated that when she observed the defendant bending Cranor’s fingers, the defendant’s actions were “very similar” to range-of-motion therapy, which therapy was part of the defendant’s duties. Merchant stated that when Cranor hollered, the defendant laughed first and then stopped bending his fingers.

Another Winchester House employee, Patricia Sikula, testified that in January 1989 the defendant verbally abused Cyrus Cranor and twisted his nose while they were in the bathroom. At the time, Cranor was saying to the defendant, “ ‘Your face is black, girl, your face is black. What are you going to do to me? What are you going to do?’ [The defendant] said, ‘I’m going to kill you. I’m going to kill you,’ and twisted his nose like that, (indicating).” Sikula reported these incidents to the nurse and the senior nurse’s aide.

Ben August, the other Winchester House resident whom defendant was accused and convicted of abusing, was described by Diane Mota as an elderly man who was “halfway blind” and had no legs but good use of his arms. Patricia Sikula stated that Ben August had both legs amputated right below the knees and that he is blind. She described him as very old and “down below he’s sore, and when you touch him there, it’s just painful.” She stated Ben August is generally cooperative if you take the time to explain to him what you are doing before you do it. Bonnie Jones testified that on February 2, 1989, while in the same room with the defendant, she observed defendant and Pat Sikula working on Ben August. She heard a slap, and Pat later told her that the defendant slapped Ben August.

Diane Mota testified similarly that you have to tell Ben August what you are going to do before you do it so that you do not agitate him. On one occasion, she observed the defendant, without telling Ben August anything, begin to work on him. He became combative, “just swinging, you know, trying to hit her.” The defendant grabbed both of his hands, crossed his arms so that his closed fists rested on each of his shoulders, and said “if you don’t knock it off I’m going to break your fucking arms off.”

The defendant took the stand in her own defense, admitting during her testimony that she might have slapped Ben August using her right hand on his right cheek. She was not questioned concerning Cyrus Cranor, who was deceased at the time of trial.

The trial judge found the defendant guilty of counts I and V, the aggravated batteries of Cyrus Cranor and Ben August, respectively, and of count III, abuse of a long-term care facility resident as to Cyrus Cranor and Ben August. She was acquitted of all other remaining counts. On the State’s motion, which was based on the oiie-act, one-crime principle, sentence was imposed only on count III of the indictment for abuse.

The defendant first argues she was not proved guilty beyond a reasonable doubt of abuse of a long-term care facility resident because the “physical” injury included in the definition of “abuse” in section 12 — 19 of the Code requires more than the “bodily harm” required for the aggravated battery of an individual 60 years of age or older (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(b)(10)). She contends there must be an actual, visible physical injury, and because the State relied solely upon allegations of physical injury, as opposed to the mental injury or sexual offenses as otherwise provided for in the abuse statute, it was required to prove such injuries. In light of the court’s comment prior to sentencing that “[t]here were no injuries,” the defendant concludes the court erred in finding her guilty of abuse of a long-term care facility resident by means of physical injury. Further assuming, arguendo, that physical injury and bodily harm could be considered to be functional equivalents, she proceeds to argue that the evidence not only failed to establish physical injury but also did not establish the occurrence of even bodily harm to either Cyrus Cranor or Ben August. Consequently, she requests that this court also reverse her convictions of aggravated battery.

The State argues that both the “bodily harm” required under the aggravated battery statute and the “physical injury” required under the abuse statute are satisfied by evidence of pain, and a showing of visible injury is not required. Noting that the striking of a mentally ill person and the excessive use of force to effectuate restraint of such a person are both included in the definition of “abuse” under the Protection and Advocacy for Mentally Ill Persons Act (Ill. Rev. Stat. 1991, ch. 911/2, par. 1352), the State contends there is no rational reason to interpret the abuse of a long-term care facility resident any differently. The defendant has not filed a reply brief.

Defendant’s argument here presents in part an attack on her convictions of the aggravated batteries of Cyrus Cranor and Ben August. No sentences were imposed for those convictions, however, and they are not appealable. (People v. Caballero (1984), 102 Ill. 2d 23, 51-52; People v. McKendrick (1985), 138 Ill. App. 3d 1018, 1028.) This court’s focus on review, therefore, is simply on whether the defendant was proved guilty beyond a reasonable doubt of the offense of abuse of a long-term care facility resident.

Section 12 — 19 of the Code provides that “[a]ny person *** who abuses a long term care facility resident is guilty of a Class 3 felony.” (Ill. Rev. Stat. 1991, ch. 38, par. 12—19(a).) “Abuse” is defined as follows:

“ ‘Abuse’ means intentionally or knowingly causing any physical or mental injury or committing any sexual offense set forth in this Code.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 12-19(d)(1).

The phrase “physical or mental injury” has not previously been interpreted in the context of this statute. The amended indictment for abuse here charged the defendant “knowingly abused Cyrus Cranor, Goldie McEwen, Ben August, Rachael Martinez, Matthew Koch, Dessie Mattei or Lillian Grosso *** in violation of section 12 — 19(a).” The acts of abuse underlying the charge as to each resident were contained in separate indictments for aggravated battery against each of the respective residents. As to Cranor, it was alleged the defendant “slapped him with her hands, twisted his fingers, twisted his nose, and put pepper in his mouth.” As to Ben August, it was alleged the defendant “repeatedly slapped him and twisted his arms.”

“Abuse” is defined in the alternative in the statute as being comprised of either physical or mental injury which is intentionally or, as here, knowingly caused. “A person knows, or acts knowingly or with knowledge of *** (b) [t]he result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1991, ch. 38, par. 4—5.) The abuse indictment here did not specify which type of injury — physical or mental — the defendant’s conduct caused, but the record shows the State elected to proceed on the theory that the defendant’s actions caused physical injury. Consequently, our review of the sufficiency of the evidence proceeds in accord with that theory only. Cf. United States ex rel. Potts v. Chrans (N.D. Ill. 1988), 700 F. Supp. 1505 (criminal conviction should not be affirmed on the basis of a theory not presented to the trier of fact).

On review, this court is not to substitute its judgment for the trier of fact’s but is to review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the prosecution and reverse the judgment only if no rational trier of fact would have found the defendant guilty of the crime charged beyond a reasonable doubt. (People v. Hurtado (1991), 208 Ill. App. 3d 110; People v. Watkins (1990), 206 Ill. App. 3d 228; United States v. Atterson (7th Cir. 1991), 926 F.2d 649.) Moreover, this court’s review is of the trial court’s judgment, not its reasoning; the trial court’s judgment may be sustained for any appropriate reason regardless of whether the trial court relied on those grounds and regardless of whether the trial court’s reasoning was correct. People v. Morgan (1991), 142 Ill. 2d 410; People v. Stoudt (1990), 198 Ill. App. 3d 124.

At the conclusion of trial, the. court found that, as to the aggravated batteries of Cyrus Cranor and Ben August — both of which required proof of “bodily harm” (Ill. Rev. Stat. 1991, ch. 38, par. 12—4(b)(10)) as opposed to only “physical contact of an insulting or provoking nature,” which also can constitute simple battery (Ill. Rev. Stat. 1991, ch. 38, par. 12—3(a)(2))—the slaps to Cyrus Cranor and Ben August were “injurious” and were sufficient to establish defendant’s guilt of the offense of aggravated battery beyond a reasonable doubt. The slaps to Cyrus Cranor and Ben August were also considered by the court in finding the defendant guilty of abuse as to those two men. Subsequently, prior to sentencing the defendant for abuse, however, the court stated: “There are no injuries, although dispicable [sic] behavior.”

In its law-making function, the legislature has the power to define the terms used in a statute in any reasonable manner (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443; Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677) and may broaden or narrow the meaning the term otherwise would have (People v. Burmeister (1986), 147 Ill. App. 3d 218). Definitions of terms within a legislative enactment will be sustained to the exclusion of hypothetical indulgences. (Kirchgessner v. County of Tazewell (1987), 162 Ill. App. 3d 510.) Definitions themselves are often not clear, however, and may be subject to interpretation. (2A N. Singer, Sutherland on Statutory Construction §47.07, at 133 (Sands 4th ed. 1984).) Terms not otherwise defined will be given their ordinary and popular meaning (Union Electric Co. v. Department of Revenue (1990), 136 Ill. 2d 385; People v. Hurtado (1991), 208 Ill. App. 3d 110). The words of a statute must be read in light of the purpose to be served by the enactment (Munroe v. Brower Realty & Management Co. (1990), 206 Ill. App. 3d 699); consequences resulting from various constructions of the statute must be taken into consideration, and the court should select a construction which leads to a logical result and avoid one which the legislature could not have contemplated. Klier v. Siegel (1990), 200 Ill. App. 3d 121.

The ordinary meaning of “abuse” includes “mistreatment; injury,” and the word “injury” includes the meaning “physical harm or damage to a person” or “an injurious act” such as “an offense against a person’s feelings, dignity, etc.” (Webster’s New World Dictionary 6, 725 (1972).) “Harm” is defined in part as “hurt” which definition, in turn, includes “the sensation of pain.” Webster’s New World Dictionary 638, 686 (1972).

At trial, drawing an analogy between the home invasion statute (Ill. Rev. Stat. 1991, ch. 38, par. 12—11(a)(2)), which is designed to protect people while in a dwelling place, and the instant abuse statute, which is designed to protect residents of long-term care facilities, the State looked to cases interpreting the “injury” requirement of the home invasion statute in support of its argument that the physical “injury” contemplated in the abuse statute need not be visible in order to be considered an injury. (See, e.g., People v. Foster (1982), 103 Ill. App. 3d 372 (clear injury shown where the defendant pushed victim down into a chair with his hand around her throat while she struggled with him); People v. Shelby (1984), 123 Ill. App. 3d 153 (physical pain suffered by the victim during her swinging-kicking-screaming struggle with the defendant to remove his hand from her mouth showed the required injury); People v. Rachel (1984), 123 Ill. App. 3d 600 (where the defendant held a pillow over a child’s face preventing her from breathing properly, the lack of visible injury does not negate “injury” to her); People v. Geitz (1985), 138 Ill. App. 3d 670 (essential element of injury shown where victim was forced to pull pillowcase over her head, to urinate in a cup and drink from the cup, to drink water from the toilet, to lick the anus of a three-year-old child, and to have the defendant place his penis into her mouth and ejaculate).) The “injury” required under the home invasion statute has also been determined to include psychological trauma as well. (People v. Ehrich (1988), 165 Ill. App. 3d 1060, 1072 (as opposed to the terms “physical injury,” “physical harm” or “bodily harm” in the statutes, broader term “injury” in home invasion statute obviously intended to encompass psychological trauma caused to seven-year-old girl after invader placed his hand over her mouth and restrained her in her bedroom).) In contrast to the undefined term “injury” in the home invasion statute, the “abuse” defined in the instant statute specifically includes “injury” that is either “physical” or “mental” thereby relieving any doubt about the types of injurious consequences of abuse meant to be proscribed.

Here, the State finds support for its argument that the injury sustained from the defendant’s slaps constitutes physical injury and, thus, abuse, in the definition of “abuse” in section 2 of the Protection and Advocacy for Mentally 111 Persons Act, to wit:

“ ‘Abuse’ means any act or failure to act by an employee of a facility rendering care or treatment, which act or failure was performed knowingly, recklessly or with intentional disregard for the rights of a mentally ill person, and which caused, or may have caused, injury to a mentally ill person, and includes but is not limited to acts such as: (1) the rape or sexual assault of a mentally ill person; (2) the striking of a mentally ill person-, (3) the use of excessive force when placing a mentally ill person in bodily restraints; and (4) the use of bodily or chemical restraints on a mentally ill person which is not in compliance with federal ‘and State laws and regulations.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 911/2, par. 1352(2).

“Abuse” is defined similarly to the act at issue here in several other statutes, such as in section 1 — 101.1 of the Mental Health and Developmental Disabilities Code, as “any physical injury, sexual abuse, or mental injury inflicted on a recipient of services other than by accidental means” (Ill. Rev. Stat. 1991, ch. 911/2, par. 1—101.1); see also the Abused and Neglected Long Term Care Facility Residents Reporting Act (Ill. Rev. Stat. 1991, ch. 1111/2, par. 4163(d)) and the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1991, ch. 1111/2, par. 4151—103). The requirement of “physical or mental injury” under the Nursing Home Care Reform Act was satisfied where an employee of the plaintiff school dragged a resident on a concrete surface for approximately 10 feet causing abrasions to the resident’s back. See Grove School v. Department of Public Health (1987), 160 Ill. App. 3d 937, 940.

It is evident that by these various acts the legislature has undertaken to protect persons who are particularly vulnerable — the mentally and physically infirm and the aged — from three types of abuse: physical, mental and sexual. We do not believe that by enacting the statute at bar the legislature could possibly have intended that the intentional or knowing striking of a long-term care facility resident would constitute abuse only if the striking caused an actual, visible injury.

The cases cited by the defendant in support of her argument that the slapping was insufficient to cause even the “bodily harm” required in the aggravated battery statute, much less physical injury, are not persuasive. In People v. Benhoff (1977), 51 Ill. App. 3d 651, the defendant suddenly hit the police officer in the face with a fist and grabbed at the steering wheel while they were en route to the county jail. The officer affirmatively testified that he did not require hospitalization, suffer “any cuts or bruises,” “serious injuries,” or “any injuries at all.” The court concluded that no conviction of aggravated battery could be sustained. In People v. Veile (1982), 109 Ill. App. 3d 847, no bodily harm and, thus, no aggravated battery was found to have been committed where the defendant struck a police officer in the chest with her right fist. The officer, who was wearing soft body armor at the time, testified he was “jolted back” a little, but his uncontradicted testimony was that he was not injured by the blow. Finally, in People v. McBrien (1986), 144 Ill. App. 3d 489, the prosecution failed to establish beyond a reasonable doubt that the defendant committed aggravated battery where the officer on whose forehead and arm the defendant sprayed a liquid (mace) testified he felt only a “tingling” sensation, but no pain.

In distinguishing batteries caused by contact of an insulting or provoking nature and those causing bodily harm, the court in People v. Mays (1982), 91 Ill. 2d 251, 256, found the latter required “some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent.”

It is clear there was affirmative testimony in each of the above cases as to the absence of injury or pain and, thus, no aggravated battery was proved. Arguably, the officer in Benhoff experienced pain upon being struck in the face with the defendant’s fist; he was not questioned about whether he experienced pain, however, and the case was decided before Mays. Two other preMays cases found the requisite bodily harm had been caused despite any direct evidence at trial of visible injury. People v. Tripp (1978), 61 Ill. App. 3d 507, 510 (defendant struck correctional officer in the face with a fist and struck him several times in the side with a stapler); People v. Taylor (1977), 53 Ill. App. 3d 810, 816 (defendant kicked police officer in groin and head areas).

Here, Cyrus Cranor was deceased at the time of trial, and Ben August did not testify. Despite the fact the scratches observed on Cranor’s face were not specifically tied to the defendant’s actions, and, drawing all reasonable inferences in the prosecution’s favor, the court nevertheless reasonably could have concluded that these two elderly men felt pain when slapped by the defendant. Cranor was slapped in the face and also was “punched” in the chest by the defendant; August was slapped on at least one occasion with enough force to allow Bonnie Jones to hear it in another part of the same room. Thus, we do not construe the court’s comment that “[t]here were no injuries, although dispicable [sic] behavior” to preclude its finding of abuse but, rather, view it as simply an acknowledgment that there were no visible, permanent injuries. Notwithstanding the likely indignity also caused these two men by the defendant’s opprobrious behavior, the physical pain, however transitory, suffered by them cuts cleanly into the body of “physical injury” circumscribed within the Act’s definition of abuse.

We conclude that defendant’s guilt of the offense of abuse of a long-term care facility resident was proved beyond a reasonable doubt and no reversal is warranted.

The defendant’s next contention is that count III of the indictment, which charged the abuse offense, was insufficient to charge an offense in that it alleged no specific act of abuse, listed eight potential victims (until amended when one victim’s name was stricken) and did not sufficiently specify a date on which any act occurred. The State argues the indictment was specific enough to enable the defendant to prepare a defense and bar any future prosecutions where any elements missing from count III were supplied by the other counts of the indictment, which must be read as a whole, and that the dates in the indictment need only show that the offense charged was committed within the statute of limitations period and prior to the indictment.

The State correctly notes the well-established rule in Illinois that, in testing the sufficiency of a multicount indictment, elements missing from one count may be supplied by another count. (People v. Morris (1990), 135 Ill. 2d 540, 544; People v. Hall (1982), 96 Ill. 2d 315, 320; People v. Dworzanski (1991), 220 Ill. App. 3d 185, 196.) It also correctly argues that it need only establish that the offense charged was committed within the statute of limitations period and prior to the return of the indictment. (People v. Barlow (1989), 188 Ill. App. 3d 393, 402.) The correct standard on review, however, where the defendant has challenged the sufficiency of the indictment at trial, as defendant did here, is whether — considering only the indictment itself (People v. Rose (1976), 44 Ill. App. 3d 333) — it states the nature of the offense and adequately sets forth each element of that offense. People v. Young (1991), 220 Ill. App. 3d 488.

The essence of the defendant’s claim with regard to this issue is that count III failed to specify whether the abuse was committed by physical or mental injury or by sexual offense. Reference to the other counts of the multicount indictment, however, clearly apprised the defendant that she was being charged with abuse causing physical injury. Separate counts for aggravated battery relating to each of the seven victims listed in the amended abuse indictment described a physical act or acts of the defendant upon the body of each of the victims. Consequently, the court did not err in denying her motion to dismiss count III on the ground that it did not state an offense.

The defendant’s next contention is that the court erred in denying her post-trial motion to dismiss count III of the indictment because it was duplicitous in that it improperly joined several distinct offenses in a single count. The defendant refers here to the fact that count III charges abuse against seven separate victims.

“Duplicity” occurs when two or more offenses are charged in the same count, not from charging a single offense in more than one way or where different acts contribute to the same offense. (People v. Ross (1961), 21 Ill. 2d 419; People v. Simmons (1982), 105 Ill. App. 3d 402.) Duplicity “is unacceptable because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both.” (2 W. LaFave & J. Israel, Criminal Procedure §19.2, at 457 (1984).) Assuming, arguendo, that count III was duplicitous, improper joinder of offenses nevertheless may be waived (People v. Collins (1991), 214 Ill. App. 3d 98; People v. McKendrick (1985), 138 Ill. App. 3d 1018), such as where the issue is not raised until after the court has made its finding. See 2 W. LaFave & J. Israel, Criminal Procedure §19.2, at 457 (1984).

The defendant here did not raise the issue of the duplicity of count III until after the court had found her guilty of the abuse of Cyrus Cranor and Ben August and she filed her post-trial motion. Under these circumstances, we find the defendant waived the issue.

The defendant’s final contention is that section 12 — 19 of the Code is unconstitutionally vague because the term “mental injury” is not defined and, therefore, the statute inadequately specifies the conduct it proscribes and fails to provide an ascertainable standard for its enforcement.

The due process requirement of the United States and Illinois Constitutions that the proscriptions of a penal statute must be clearly defined (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2) assures that an individual cannot be held to have violated a statute unless the individual could reasonably have been expected to understand that the particular conduct was proscribed (Bouie v. City of Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697; People v. Garrison (1980), 82 Ill. 2d 444, 454). Where first amendment freedoms are not involved, the determination of whether a particular statute is void for vagueness is made with reference to the factual context of each case (People v. Haywood (1987), 118 Ill. 2d 263, 270), as opposed to hypothetical situations (People v. Vandiver (1971), 51 Ill. 2d 525, 529), since a defendant may be prosecuted under a statute without violating due process rights if his or her conduct clearly falls within the statutory proscription even though the statute may be vague as to other conduct. (Garrison, 82 Ill. 2d at 454.) Therefore, in order to sustain a facial challenge to the statute, the challenger “ ‘must demonstrate that the law is impermissibly vague in all of its applications.’ ” People v. Taylor (1990), 138 Ill. 2d 204, 211-12, quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 497, 71 L. Ed. 2d 362, 371, 102 S. Ct. 1186, 1193; Haywood, 118 Ill. 2d at 270.

The defendant here was not prosecuted for conduct causing “mental injury” but, rather, for conduct falling squarely within the proscription against abuse of a long-term care facility resident by causing “physical injury.” As such, defendant’s due process rights were not offended, and we need not further address her contention concerning the unconstitutional vagueness of the statute.

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

Affirmed.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK A. LAMBRECHT, Defendant-Appellant.
    Second District
    No. 2—90—0449
    Opinion filed July 9, 1992.

      G. Joseph Weller, Barbara R. Paschen, and Kathleen J. Hamill, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers, John X. Breslin, and Judith Z. Kelly, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

A jury convicted defendant, Mark A. Lambrecht, of one count of unlawful delivery of 15 or more grams of a controlled substance (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1401(a)(2)), two counts of unlawful delivery of more than one but not more than 15 grams of a controlled substance (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1401(b)(2)), and one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1402(b)). He was sentenced to serve concurrent terms of one, four, four and six years in prison for his offenses. Defendant presented an entrapment defense and asserts on appeal that (1) the State failed to prove beyond a reasonable doubt that he was not entrapped, (2) the trial court erred in excluding his expert witness’ opinion regarding his ability to commit the charged offenses, and (3) the trial court improperly questioned his expert witness.

In July 1988 police officer Ronald Vandergrift, a member of a five-county drug task force, started working with Nancy Smith, a confidential informant. Smith had been arrested the previous May on two felony counts of unlawful delivery of cannabis. However, she had reached an agreement with the State whereby the charges against her would be dismissed in return for her cooperation in setting up a cocaine buy. She was to provide information which would lead to the undercover purchase of two ounces of cocaine from a dealer in the area. A record of this agreement had been made in open court on June 14, 1988. The transcript of that proceeding was read to defendant’s jury. The charges against Smith were dismissed a few days after the defendant was arrested.

During June, Smith approached defendant about helping her to get some cocaine. On July 1 defendant telephoned Smith. She arranged to meet defendant later that day at a restaurant parking lot in Byron to buy a quarter ounce of cocaine. Vandergrift, who had no previous connection or contact with the defendant, drove Smith to the parking lot. Defendant, who was already there, walked to the passenger side of Vandergrift’s car and dropped a plastic bag of cocaine through the open window into Smith’s lap. Officer Vandergrift, who had also walked around to the passenger side of the car, testified that he heard defendant say something to the effect of “this is the best stuff you’ll ever have.” When Vandergrift asked if the bag contained a full quarter ounce, the defendant replied that he did not know because he had not weighed it himself. Vandergrift took the plastic bag from Smith and paid the defendant $500. The defendant told the officer that he was not making any money on the deal.

Vandergrift testified that he next arranged to buy an ounce of cocaine from defendant on July 3. Although that delivery did not work out, defendant gave Vandergrift his phone number, and, on July 6, Officer Vandergrift called defendant at his home in Wisconsin. At first, Vandergrift complained that the substance he had received on July 1 had been a gram short. The witness explained that he did this to let defendant know that he was weighing what he was getting and expected to get what he paid for. He then arranged to buy one ounce of cocaine from the defendant on July 8. On July 7, according to Vandergrift, he called the defendant four times, and defendant called Nancy Smith’s home three times regarding the deal.

On the evening of July 8, Officer Vandergrift and Smith again met defendant in the restaurant parking lot. This time defendant opened the hood of his car and placed a bag of cocaine on the car radiator. Vandergrift picked it up, but defendant reported that he had only been able to get a half ounce. Officer Vandergrift paid defendant $800, and defendant then showed him some white powder on the owner’s manual of his car and said, “[t]his is all I took, plus a couple lines that I did.” Defendant indicated that the small amount of cocaine was all he was getting out of the deal. Vandergrift said he discussed with defendant the future purchase of an ounce of cocaine but made no definite arrangements. Although Nancy Smith denied it during her cross-examination, Vandergrift said that Smith later told him defendant had called her on July 9, 10 and 11, trying to set up the one-ounce sale.

Vandergrift next contacted the defendant on August 18. Between August 18 and August 26 defendant contacted Officer Vandergrift three times. On August 26 Vandergrift tape recorded three telephone calls he received from the defendant. The tape was played for the jury. All three calls were connected with the arrangements for Vandergrift to buy one ounce of cocaine that evening. Defendant indicated that he had to stop at Maria’s to pick up the drugs and would meet Officer Vandergrift later. At one point defendant phoned Vandergrift to tell him he was on his way to Maria’s. He said he wanted to let him know “what’s going on instead of you getting nervous, or anything.”

Upon arriving at the Byron parking lot, Vandergrift, who was alone this time and wearing an eavesdropping device, got into defendant’s car. At defendant’s direction he found two bags of cocaine in a container between the front seats. The defendant also showed Vandergrift a small amount of cocaine, which he referred to as “[t]wo rocks.” Defendant said one “rock” had been taken from each of the two bags the officer had found between the seats and explained that that was what he got for delivering the drugs. A short time later defendant commented that it was nice to see “Ron” and added, “I thought you gave up on me, or you got some other source, or something.” He then explained that his wife knew what was going on and, for doing what they were doing, his wife got $100 and he got the cocaine he took out of the bags he delivered. When Vandergrift asked him what was in the two bags, defendant replied, “[t]oot. Toot-toot, the best toot.” After Vandergrift paid him $2,900 the defendant was arrested. The tape Vandergrift had been wearing during the drug buy was played for the jury.

In March 1989, some six months after the charges against her were dropped, Nancy Smith signed a statement in which she indicated that defendant never would have done what he did if she had not contacted him and pushed him into it. At trial she testified for defendant. Smith worked at the Kopy Kat restaurant in Oregon and knew defendant because he delivered food to the restaurant from a Wisconsin supplier. She decided to involve him in the setup because she thought he was naive and easy to fool. Too, because defendant was not from the Oregon area, she figured her friends would not find out that she had set someone up. Smith also had heard rumors that the defendant had made cocaine deliveries to the Kopper Kettle, another restaurant in Oregon, and had sold cocaine to Wayne Messenger at the Kopper Kettle. She knew, too, that defendant had recently worked with Martin Viveros, and Viveros had talked to her and others about selling and using drugs. Smith testified that defendant had not talked about selling drugs to her. Rather, when he came to the Kopy Kat to make deliveries, she approached him and told him she was in trouble and needed a lot of money. She asked him to help her buy cocaine so she could sell it to make the money she needed. Smith said she did not give defendant her phone number but did ask for his.

On cross-examination Smith conceded that she had voluntarily entered into the agreement with the State whereby her charges were dismissed and that she had been represented by an attorney at the time. She also acknowledged that she had not initiated the March 1989 statement. Rather, she had been approached by an investigator for defendant’s attorney. The investigator had come to the Kopy Kat, taken her oral statement, and returned a few days later with a typed statement for her to sign. Smith further admitted that she had never gone to the State’s Attorney and told him how she felt about involving defendant.

Defendant testified on his own behalf. His wholesale food delivery route in Ogle County included, among other restaurants, the Kopy Kat in Oregon. Early in 1988, he trained Martin Viveros to take over the route. Viveros talked about drugs but, according to defendant, did not mention that he was charged with conspiracy to sell cocaine. In May 1988 defendant resumed the Ogle County route because Viveros had quit. Defendant had known Nancy Smith since 1986 when he began the route but had never talked to her about drugs.

Defendant’s testimony was similar to Smith’s regarding Smith’s request for obtaining help in obtaining drugs. During an early June delivery at the Kopy Kat Smith came to him, appearing to be scared and in trouble, and said she needed cocaine because someone was after her to get the drug. Defendant said he told her he was not involved with drugs but offered to lend her money. Smith asked him to let her know if he ran across anybody, any place else in town, who might be willing to help her. She gave him her phone number so that, if he found someone who could help, that person could call her or he could call her and let her know. On June 17, Smith again asked for defendant’s help. Defendant testified that, when he told her he had no access to cocaine, Smith suggested that he contact Martin Viveros.

After June 17, Jody Schuman had taken over defendant’s Ogle County route. On June 28 Schuman gave defendant the message that Smith wanted him to call her. That same day Smith phoned defendant. She sounded upset and again asked for his help. Defendant said that Smith made him feel bad for her. The next day, June 29, while in Ogle County, defendant telephoned Viveros, hoping that he would deal directly with Smith. Viveros referred him to Maria, the woman he lived with, who agreed to sell defendant the cocaine.

On July 1 defendant and a friend of his, Lee Kruse, drove to Maria’s home in Rockford. Defendant knew where she lived from having worked with Viveros. Defendant called Smith from Maria’s phone and made arrangements to deliver one-quarter ounce of cocaine to her. Defendant’s account of the sale in the restaurant parking lot was similar in most respects to that of Vandergrift. However, defendant added that the man with Smith, whom he came to know as “Ron,” was big, heavyset, bearded and dressed in a jeans jacket, biker boots, and sunglasses. The man poked him in the chest and, in a threatening manner, said that one sale would not settle matters between himself and Smith, that defendant would have to deliver more drugs to him. Defendant’s offer to put “Ron” in touch with Maria was refused. After “Ron” paid defendant $500, defendant and Kruse drove to Maria’s, gave her the money, and returned to Wisconsin. Defendant’s description of “Ron’s” demeanor and conduct was essentially corroborated by Kruse.

Defendant further testified that “Ron” called him on July 2 and 3, demanding to buy one ounce of cocaine. When he asserted that he could not come up with the drugs, “Ron” threatened him. On July 6 “Ron” called a total of five times, still seeking an ounce of cocaine. Defendant at first refused, but, becoming tired and fearful for himself and Smith, he agreed to a July 8 delivery.

On July 8 defendant picked up a premeasured bag from Maria. He delivered it to “Ron” who claimed it did not contain a full ounce and ordered defendant to go back and get the other half ounce. Defendant refused and told “Ron” and Smith he would not deliver again. He took the $800 “Ron” paid him back to Maria. Defendant testified that he neither kept nor received money for the July 1 or 8 deliveries. Nor did he take any cocaine from the bags he delivered to “Ron.”

On August 18, according to defendant, “Ron” phoned, seeking two ounces of cocaine, and threatened him if he did not cooperate. “Ron” called again on August 22 and 23 and began threatening defendant’s family. After defendant agreed to meet him on August 26, “Ron” encouraged defendant to take some cocaine out of the bag for himself.

On the evening of August 26 defendant picked up two bags of cocaine from Maria. When he informed Maria that “Ron” had told him to take some out for himself, she gave him two folded paper packets containing cocaine. Defendant testified that he later met “Ron” and, out of fear, acted like “Ron’s” friend and tried to impress him. The sale took place and defendant was arrested.

Defendant was taken to the police station where, upon learning the possible sentence for the charges against him, he cried. Defendant testified, in essence, that after being coerced and threatened by various officers, and bribed by the prospect of a reduced sentence, he agreed to cooperate with police. At first he admitted only to the July 1 and 8 deliveries to Vandergrift. Then, according to his testimony, believing he had to admit to other crimes, he told Rockford police about Maria and lied that he had delivered cocaine to Gilbert Gonzales. Officer Versetti from Rockford affirmed that defendant was shaken and had been crying just before he spoke to him.

Defendant then agreed to make a statement on videotape. However, defendant testified that, before making the tape, Sergeant Kerns of the Illinois State Police had prepared him to answer the questions which would be asked. He said that, at Kerns’ request, he had lied on the tape when he said he had profited from the deliveries.

Dr. Joseph Vaughn, a clinical psychologist, also testified for defendant. Dr. Vaughn had interviewed and administered intelligence and personality assessment tests to defendant. In essence, the doctor indicated that defendant had a below average I.Q., was excessively dependent on other people, and possessed very poor social judgment in that he followed others rather than making decisions for himself. He found no signs of drug abuse or anti-social tendencies.

In rebuttal the State played the videotape of defendant’s statement made on the night he was arrested. On the tape defendant claimed to have made $100 from the cocaine sale on July 1 and $150 on July 8. He added that he would have made $200 on August 26 if the deal had been completed. On each occasion he had obtained the drug from Maria. Defendant also said that he had taken a small amount of cocaine out of the bags for his personal use on each of the three occasions. He stated that, prior to the deliveries to “Ron,” he had once delivered cocaine, which he obtained from Maria, to Gilbert Gonzales in Wisconsin. He made no profit that time because Gonzales had given him marijuana when he first started smoking it. On another earlier occasion he had delivered cocaine he got in Wisconsin to Wayne at the Kopper Kettle in Oregon. He also had given marijuana to a couple of kids at the Silo Supper Club. In discussing the first sale to “Ron” defendant described how Nancy Smith had come to him and asked for help. He recounted his answer to her as follows:

“I didn’t know for sure, and I said, I don’t know, may be [sic], probably, I don’t know, and then she said, I’ll get a hold of you, she gave me a telephone number and after a month or so went by, she gave me a call and said she wanted some, and so I went and talked to Maria.”

Defendant indicated that his motive for selling the drugs was the money and the small amount of cocaine he took for personal use.

At trial defendant presented a defense of entrapment. The jury, however, found him guilty on all counts, and his motions for a new trial were denied. After he was sentenced, defendant timely filed this appeal.

Defendant first contends that the State failed to carry its burden with regard to his entrapment defense. Illinois provides for such a defense in section 7 — 12 of the Criminal Code of 1961 as follows:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1987, ch. 38, par. 7—12.)

Once a defendant presents some evidence to raise the issue of entrapment, the burden is on the State to prove beyond a reasonable doubt that defendant was not entrapped. (People v. Tipton (1980), 78 Ill. 2d 477, 487; People v. D’Angelo (1992), 223 Ill. App. 3d 754, 773-74.) While the State does not dispute that defendant raised an entrapment defense, it vigorously contests defendant’s assertion that it failed to prove that no entrapment occurred.

As a preliminary matter, the parties disagree as to the standard to be applied to appellate review of an entrapment defense. Defendant cites People v. Husted (1981), 97 Ill. App. 3d 160, for the proposition that the reviewing court is to consider all of the defendant’s testimony regarding entrapment in the light most favorable to him. Husted, in turn, cites to People v. Carpentier (1974), 20 Ill. App. 3d 1024, where this rule originated. However, Carpentier dealt with the question of whether the defendant was entitled to a jury instruction on the defense of entrapment. The court stated that, in deciding this limited issue, the defendant’s evidence in support of entrapment must be viewed in the light most favorable to the defendant. Carpentier did not establish that this standard of review applies to the determination of whether the State has sustained its burden of proof on entrapment. The clarification we make here regarding the standard employed in Carpentier was also made by the courts in People v. Poulos (1990), 196 Ill. App. 3d 653, 657-58, and People v. D’Angelo (1992), 223 Ill. App. 3d 754, 773-74. We agree with the Poulos and D’Angelo courts that later cases evidently picked up on the language in Carpentier, out of context, and misstated the standard for reviewing the sufficiency of the State’s evidence against the entrapment defense. See People v. Connor (1988), 176 Ill. App. 3d 900, 905; People v. Johnson (1984), 123 Ill. App. 3d 363, 370; Husted, 97 Ill. App. 3d at 171.

The question of whether a defendant has been unlawfully entrapped is generally a factual question to be resolved by the trier of fact. (Tipton, 78 Ill. 2d at 487; People v. Norks (1985), 137 Ill. App. 3d 1078, 1082-83.) A reviewing court may not substitute its judgment for that of a jury with regard to the weight of the evidence or the credibility of the witnesses and should not reverse a conviction unless the evidence is so improbable, unreasonable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. (People v. Campbell (1992), 146 Ill. 2d 363, 375; Norks, 137 Ill. App. 3d at 1083.) Thus, the relevant inquiry is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements essential to the criminal conviction beyond a reasonable doubt. (Campbell, 146 Ill. 2d at 374; People v. Collins (1985) , 106 Ill. 2d 237, 261.) When the evidence is viewed under this standard, reversal is not warranted.

To support a finding of entrapment the evidence must disclose improper inducement by the State and a lack of predisposition to commit the crime on the defendant’s part. (D’Angelo, 223 Ill. App. 3d at 774-75; People v. Schillaci (1988), 171 Ill. App. 3d 510, 517.) A defendant’s predisposition to commit an offense is a crucial element in overcoming an entrapment defense. (People v. Cross (1979), 77 Ill. 2d 396, 405; Schillaci, 171 Ill. App. 3d at 517.) Entrapment does not occur when the government merely facilitates or affords opportunities for an individual to commit an offense. (Cross, 77 Ill. 2d at 404; Poulos, 196 Ill. App. 3d at 658.) In sum, in order to sustain its burden of proving that defendant was not entrapped, the State needed to show that defendant was ready and willing to commit the crime without persuasion, that is, that he was predisposed to commit it. D’Angelo, 223 Ill. App. 3d at 775; People v. Boalbey (1986), 143 Ill. App. 3d 362, 364-65.

The courts have considered a number of factors when determining a defendant’s predisposition to commit a crime: the defendant’s initial reluctance or readiness to commit the offense; and, in drug offenses, the defendant’s familiarity with drugs, his willingness to accommodate the drug user’s needs and to make a profit from the illegal conduct, whether he has a ready source to supply the drugs, his own prior or current use of illegal drugs, and his participation in testing or cutting the drugs. (D’Angelo, 223 Ill. App. 3d at 776; Poulos, 196 Ill. App. 3d at 661.) It is significant also whether defendant was involved in a course of conduct involving similar offenses. (People v. Beavers (1986), 141 Ill. App. 3d 790, 795.) That defendant has no prior criminal record is a factor to be considered but, standing alone, is not enough to show entrapment. (D’Angelo, 223 Ill. App. 3d at 776; People v. Andreano (1978), 64 Ill. App. 3d 551, 557.) We are of the opinion that, based on the evidence presented to it, the jury could have found beyond a reasonable doubt that defendant was predisposed to commit the charged offenses.

While defendant testified to his initial great reluctance and, indeed, his refusal to procure cocaine for Nancy Smith, he himself indicated during his videotaped statement that, on the first occasion she asked for help, he had given Smith an equivocal answer. He told her he “didn’t know for sure, may be [sic], probably, I don’t know.” He did not turn her down flat. Rather, he left the door open for her to ask again. The second time Smith approached defendant she suggested that he contact Martin Viveros. Defendant testified that he agreed to contact Martin even though he had no intention of doing so. While defendant did not take any action at that time, his failure to do so could have been explained by the fact that Smith’s second request came on June 17, which happened to be defendant’s last day on the Ogle County route. He did not deliver to the Kopy Kat again; he was working elsewhere. Yet, when Smith called him on June 28, it took him only one day to make the call, first to Martin and then to Maria. He also immediately reported back to Smith. Two days later he made the arrangements, picked up the cocaine from Maria, and delivered it to Smith and Vandergrift. On close examination, defendant’s initial hesitance does not seem so great as he proclaimed it to be. His reluctance to get involved is further undercut by his familiarity with the street language of drugs, evidence that he had made prior deliveries of cocaine, and evidence of his active involvement in the later sales to “Ron.” The jury could have concluded that defendant’s initial hesitance was due to the caution a drug trafficker might be expected to exercise in dealing with a new customer whom he had not yet come to trust.

That defendant was familiar with drugs and willing to profit from the illegal conduct is amply supported by the record. He used the vocabulary of the drug culture, referring to the cocaine as “toot” and “rocks” and “lines” that he himself used. He was knowledgeable about the amounts and weights of the cocaine in the bags, even though he said he did not weigh it or cut it himself. As for defendant’s willingness to profit from his illegal conduct, in both the tape recording of his conversation with Vandergrift during the last drug transaction and his subsequent videotaped statement he indicated that he got both money and drugs for delivering cocaine. The jury could have believed this statement rather than his in-court testimony that he did not profit and that he lied on the tape. We note that there is no indication on either the videotape or the audio tape themselves that defendant was being coerced or threatened in any way.

Although, in his in-court testimony, defendant denied using cocaine and having a source to supply the drugs, the jury could have concluded from Vandergrift’s testimony, as well as defendant’s taped conversation with Vandergrift, that he was, indeed, a user and that he had been obtaining drugs from Maria prior to the deliveries to Smith. While defendant testified that on the occasion of the last delivery he was afraid of “Ron” and was merely trying to act friendly and say what he thought “Ron” wanted to hear, the audio tape of the conversation between defendant and “Ron” does not even hint at such a situation. To the contrary, defendant sounds relaxed and spontaneous. Without hesitation he told “Ron” about taking a small amount of cocaine out of the bags even though “Ron” had told him he did not like that.

Finally, the evidence was more than adequate to show that defendant was involved in a course of conduct involving similar offenses. He delivered, in increasing amounts, to Smith and/or “Ron” on three separate occasions. Further, he showed no hesitation in switching from Smith to “Ron” as his customer. Smith was heavily involved in the first transaction, but only minimally implicated in the second and not a party at all to the third. Too, Vandergrift testified that defendant gave him his home phone number, and, as reflected on the audio tape of the third buy, defendant inquired of “Ron” how often he was going to be needing cocaine. Finally, the videotape surely showed defendant to be involved with the possession and delivery of cocaine on an ongoing, even if not frequent, basis.

Much of the State’s evidence on entrapment or, more specifically, on the question of defendant’s predisposition, was contested by defendant. Most notably, defendant’s in-court testimony conflicted with his statements on both the eavesdrop tape of the final drug transaction and the videotaped statement he, made after his arrest. However, where inconsistencies and conflicts exist in the evidence, it is the responsibility of the trier of fact to weigh the credibility of the witnesses and resolve the conflicts and inconsistencies. (People v. Aguilar (1991), 218 Ill. App. 3d 1, 8.) Here, we think the evidence favoring the State, if believed by the jury, was sufficient to prove beyond a reasonable doubt that defendant was predisposed to commit the charged offenses and, thus, was dot entrapped.

We turn now to defendant’s claims relative to psychologist Joseph Vaughn, his expert witness. Prior to trial the court granted the State’s motion in limine to exclude Vaughn’s opinion testimony as to whether the defendant had the capacity, on his own, to formulate a plan to deliver drugs. When defense counsel nevertheless asked this question during direct examination of Vaughn, the State’s objection was sustained. Later, after the State completed its re-cross-examination of the witness, the trial judge directed a question to Dr. Vaughn and received an answer as follows:

“THE COURT: I just have one question. Nothing about Mike’s — or whatever his name is, Lambrecht’s psychological make up makes it difficult for him to know right from wrong, does it?
A. Mark understands right from wrong.
THE COURT: Okay, that’s all.”

Defendant posits that, since he called Dr. Vaughn only to support his defense theory of entrapment, the court’s question raised an irrelevant point. Defendant argues that the court’s refusal to allow Dr. Vaughn to give his opinion regarding the basis for the defense theory, coupled with the court’s focus on an extraneous matter, resulted in an unfair trial.

The State counters that Dr. Vaughn’s testimony was properly excluded because it would have given an opinion on the ultimate issue in the case even though such an opinion was not necessary to help the jury understand the facts. Therefore, according to the State, to have allowed Dr. Vaughn to answer the question would have invaded the province of the jury. With regard to defendant’s attack on the question asked by the trial judge, the State urges that the question was proper clarification of an issue raised by defendant during direct examination.

The State does not dispute defendant’s contention that, generally, expert testimony is admissible to assist the trier of fact even though the testimony is an opinion on an ultimate issue in the case. (See People v. Harris (1989), 132 Ill. 2d 366, 385; People v. Goolsby (1977), 45 Ill. App. 3d 441, 447.) The current general standard for the admissibility of expert testimony is whether it will aid the jury in understanding the facts. (Anderson v. Chesapeake & Ohio Ry. Co. (1986), 147 Ill. App. 3d 960, 975; Batteast v. Wyeth Laboratories, Inc. (1988), 172 Ill. App. 3d 114, 134.) Thus, expert testimony is admissible when the expert testifies to facts which require scientific knowledge beyond the common knowledge of ordinary lay people. (People v. Masor (1991), 218 Ill. App. 3d 884, 887; People v. Ambro (1987), 153 Ill. App. 3d 1, 8.) Conversely, expert opinions are not admissible on matters of common experience unless the subject matter is difficult to understand and explain. (Ambro, 153 Ill. App. 3d at 8.) The State argues that, in light of all the evidence that had been introduced, the jury was able to determine the question of defendant’s predisposition on its own. In other words, the jury did not need the expert’s opinion on the ultimate question in order to understand the facts. We agree.

It appears to us that Dr. Vaughn, a clinical psychologist with 20 years of experience, testified extensively regarding defendant’s personality and general ability to act on his own and/or initiate activities or plans. On three different occasions the doctor had interviewed and/or given defendant various personality and intelligence tests. Dr. Vaughn indicated that defendant, who was 24 years old at the time of trial, had a below average I.Q., could read only at an eighth-grade level and do math at a twelfth-grade level, was deficient in figuring out how to deal with things that come up on a daily basis, and had a problem with abstract reasoning ability. The witness described defendant as suffering from a dependent personality disorder.

Dr. Vaughn testified repeatedly and in a number of different ways that, as part of his personality problems, defendant was insecure, had a strong need to please others in order to avoid rejection, was easily led by others, was likely to give into others’ demands, and had great difficulty making decisions on his own and, in general, standing on his own two feet. Dr. Vaughn summarized his conclusions by describing defendant as “a young man whose intelligence is impaired, who does not have confidence in himself, who is anxious and insecure below the surface, although he puts on a front of everything is okay.” Finally, on redirect, the following exchange took place between the witness and defense counsel:

“Q. Is Mark Lambrecht the type of person who is a type of individual who will basically initiate a plan or scheme?
A. Based on his limited intelligence and personality profile, I would say this would be difficult for him.
* * *
Q. [Is he a] person would have — who would have a difficult time formulating independent plans to engage in antisocial activities?
A. I would think that this would not be consistent with his profile, this is true.”

It seems the only question Dr. Vaughn was not allowed to answer was the fact-specific question of whether he had an opinion “as to whether [defendant] could have been the type of person that would formulate a plan to become involved in some type of drug sale,” which was asked by defense counsel.

We agree with the State that the jury had been presented with a great deal of evidence as to defendant’s ability to make decisions and to act on those decisions. Consequently, we do not think the jurors needed the help of an expert opinion on the ultimate issue of whether defendant would initiate his own involvement in an unlawful drug sale. Dr. Vaughn’s testimony, cumulatively, provided a sound base from which the jury, utilizing its common experience and knowledge, could draw its own inferences and conclusions. The jury was entitled to determine the weight to be given to the evidence of defendant’s personality weaknesses and to balance that evidence against the evidence that he was predisposed to commit the crime. We believe the admission of the excluded expert opinion testimony would have invaded the province of the jury (Ambro, 153 Ill. App. 3d at 8) and, therefore, was properly excluded.

As for defendant’s claim that the trial court improperly asked Dr. Vaughn whether defendant could distinguish right from wrong, we do not agree that the court raised an irrelevant issue. A trial judge has the discretion to question witnesses in order to elicit the truth or clarify obscure issues, and the propriety of such questioning depends on the facts of each case. People v. Nevitt (1990), 135 Ill. 2d 423, 456.

Dr. Vaughn testified in detail regarding the defendant’s low I.Q. and limited abstract reasoning ability as well as his dependent personality disorder and lack of social judgment. At the conclusion of the doctor’s testimony, the trial judge asked a single, final question about defendant’s capacity to know right from wrong. Subsequently, during his direct examination, defendant responded to counsel’s questions as follows:

“Q. The July 1st and July 8th meetings, where you brought this white powder down to Nancy, did you think you had done anything wrong at that time?
A. No.
Q. Why not? Did you think you had violated the law when you had done this?
A. Not by helping someone out, I didn’t think I was.
Q. What about up to the point where you had that — you had violated the law?
A. No.
Q. Were you violating the law?
A. No.
Q. Why not?
A. I don’t know, I just didn’t think that it was so bad to do that, I thought that if you just sold it out of your house, or if you were a person doing it out of your house, or something, that that was wrong, but I didn’t think just driving it from one place to another was wrong.”

Similarly, on cross-examination the following questions and answers were recorded:

“MRS. MINNIS [assistant State’s Attorney]: Q. I believe you stated that yesterday you didn’t think there was anything wrong with, I think you said taking cocaine from one person to another, like being the middle man, isn’t that correct?
A. I didn’t know it would be — what would be wrong -with it, if I was ordered to do it.
Q. So you are, you knew it was illegal, you just didn’t think it was wrong because you — Ron ordered you, is that your testimony?
A. Yes.”

We agree with the trial judge that Dr. Vaughn’s testimony as to defendant’s limited capacity and doubtful psychological profile, coupled with defendant’s own responses as to whether he thought his conduct was wrong or illegal, was more than adequate to suggest to the jury that defendant might not be able to discern right from wrong. We also agree that, absent the court’s question to Dr. Vaughn, the impression left with the jury would not have been a fair one. Defendant raised the question of his ability to tell right from wrong and may not now complain merely because the jury was given a complete and balanced picture of the issue. In our opinion the trial court exercised its discretion wisely in order to elicit the truth and clarify a subtle issue. (Nevitt, 135 Ill. 2d at 456.) Moreover, we note that the jury was instructed as follows:

“Neither by these instructions, nor by any ruling or remark which I have made, do I mean to indicate any opinion as to the facts or as to what your verdict should be.”

Any misapprehension of the court’s question on the part of the jurors would have been mitigated by this instruction.

For all of the reasons set forth above, the order of the circuit court of Ogle County is affirmed.

Affirmed.

INGLIS, P.J., and NICKELS, J., concur.