text:
    DEBORAH NEWBROUGH, Plaintiff-Appellant, v. LOCKWOOD DAIRY et al., Defendants-Appellees.
    Third District
    No. 3 — 90—0755
    Opinion filed January 15, 1992.

      James R. Wyer, of Geneva, for appellant.
    Gerard E. Majerczyk, of Garrison, Fabrizio & Hanson, Ltd., of Joliet (Mark E. Hanson, of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by plaintiff Deborah Newbrough against defendant Lockwood Dairy for personal injuries resulting from an auto accident. After a jury trial, plaintiff was awarded $48,500 in damages, which award was then reduced by 40% for plaintiff’s contributory negligence. Plaintiff appeals. We affirm.

At 2 p.m., November 17, 1988, plaintiff was driving southbound on a four-lane highway near a mall. She was lost and looking for street signs. Plaintiff stopped at the red light at an intersection. Defendant Frank Moeller, who was driving the Lockwood Dairy truck, pulled up behind plaintiff. He stated that traffic was heavy, which was normal for that time of day. When the light turned green, plaintiff pulled away with no traffic in front of her. She stated that she accelerated at a regular speed. The weather was clear and the pavement dry. Plaintiff testified that she was going very slowly, slower than the other traffic in front of her. Defendant stated that he was three car lengths behind plaintiff. He looked away. Defendant stated that plaintiff’s car appeared to come to a stop in the road. Defendant’s truck hit plaintiff’s car. Defendant testified that neither plaintiff’s taillights nor her brakelights were lit. Plaintiff did not testify that she applied her brakes or signalled to traffic behind her. At the point of impact, the nearest place to turn right was IV2 blocks ahead; the nearest place to turn left was one-half mile away. Neither party was ticketed for the accident.

Plaintiff was taken to the hospital, treated, and released. On November 18, 1988, she went to Delnor Hospital and was referred to Dr. Anthony Kitslar, a neurologist. Plaintiff also later consulted Dr. Bukowy and Dr. Kochno.

Plaintiff sued defendant for her personal injuries.

At trial, Dr. Kitslar testified that he conducted a neurological exam on plaintiff on November 22, 1988, the results of which were normal. Plaintiff had told Dr. Kitslar of her history of psychiatric disorders including anxiety, depression, for which she had earlier been hospitalized, and manic depression, for which she had taken medication. Dr. Kitslar found her most marked symptoms were a visible anxiety and an inability to concentrate. She also had pressured speech and flight of ideas. Dr. Kitslar diagnosed plaintiff as having an anxiety disorder. Further, he testified that plaintiff did not have post-concussive syndrome, which is a syndrome involving considerable dysfunction following certain head injuries. It can vary from mild post-traumatic headaches to memory difficulties and difficulties with concentration. He testified that he saw no indication of any significant soft tissue injury. He prescribed an antianxiety medication and recommended that plaintiff see a psychiatrist if the drug was not effective.

A few days later, plaintiff saw Dr. Bukowy. Dr. Bukowy testified that he ran a variety of tests, the results of which were normal. He did not inquire about plaintiff’s past psychiatric treatment and plaintiff did not reveal such history. He said that on his first visit with plaintiff, she had some or most of the symptoms of mania. Plaintiff complained of severe difficulty concentrating, and Dr. Bukowy diagnosed her as suffering from post-concussive syndrome, attributable to the accident. In December 1988, Dr. Bukowy prescribed an antidepressant medication.

Plaintiff testified that a few weeks after the accident, she sprained her ankle. In January and February 1989, plaintiff had surgery for breast cancer. She experienced considerable fatigue from chemotherapy following the surgery.

Plaintiff testified that she consulted Dr. Taras Kochno in January 1990. He knew that she planned to call him as an expert at her trial. He testified that he examined her and took a medical history, but plaintiff did not reveal her history of psychiatric disorders. He diagnosed her as having a condition known as fibromyalgia, which is a controversial condition being debated in the medical literature. It cannot be objectively diagnosed. The symptoms of this disorder are a history of sleep disturbance and chronic fatigue, which plaintiff had. Dr. Kochno stated that he believed fibromyalgia is related to depression, not trauma.

Plaintiffs medical bills in the amount of $13,972.50 were admitted into evidence. A summary of these expenses was provided to the jury.

At the conclusion of the evidence, the court gave the jury instructions. These included the definition instruction on contributory negligence and the violation of statute instructions with regard to the law that no person may stop or suddenly decrease speed without the appropriate signal and the law that no person shall drive at such a slow speed which impedes or blocks reasonable movement of traffic.

The jury returned a verdict finding defendant liable. It found that the total damages suffered by plaintiff were $48,500, with $7,500 of that amount for present and future medical expenses. The jury also found plaintiff contributorily negligent by 40% and reduced her damages accordingly. Plaintiff now appeals.

The first issue that plaintiff raises for our consideration is whether the trial court abused its discretion in giving defendant’s jury instructions on contributory negligence and violation of statute. The trial court did not abuse its discretion in giving defendant’s jury instructions on contributory negligence. It is well settled that a party may not complain of instructions given by the trial court at the request of another where the court at his request has given the same kind of instructions. (Prostko v. Willstead (1966), 75 Ill. App. 2d 477, 220 N.E.2d 751.) That case involved a dispute in the evidence regarding whether plaintiff had properly signalled. Plaintiff asserted on appeal that it was error to submit the definition instruction of contributory negligence and the instruction on duty of ordinary care. The court affirmed the giving of the instructions because “[t]he issues presented by these instructions had already been injected into the case by plaintiffs’ [instruction] on the burden of proof.” (Prostko, 75 Ill. App. 2d at 480.) Likewise, here, plaintiff submitted jury instructions on the burden of proof (Illinois Pattern Jury Instructions, Civil, No. 21.02 (2d ed. 1971)) (hereinafter IPI Civil 2d) and on the use of verdict forms (IPI Civil 2d No. 45.01), both of which refer to contributory negligence. Thus, plaintiff injected the issue of contributory negligence into the trial and may not now complain about defendant’s instructions on this same issue.

Furthermore, the trial court did not abuse its discretion in giving defendant’s instructions on violation of statute. In Luker v. Contract Steel Carriers, Inc. (1968), 103 Ill. App. 2d 296, 243 N.E.2d 6, the appellate level upheld the giving of the instruction on violation of statute for driving at an unsafely slow speed. There the plaintiff’s decedent’s truck struck the rear of defendant’s truck. Defendant died before trial so that there was no testimony from him. The only direct testimony as to what occurred was from a third driver who, while one-half mile away, saw decedent’s trailer lights go off. The third driver first saw the lead truck when he arrived at the accident.

Here, there was evidence that plaintiff was lost. She testified that she was looking at street signs and going very slowly. She stated that when she looked up, the traffic had proceeded on and passed her by. Defendant testified that plaintiff’s brake lights were not lit and that she did not give a signal as to her speed. This is clearly a greater quantum of evidence than that justifying the instructions given in Luker. In view of these facts, there was enough evidence on which to base the instructions.

The second issue plaintiff raises is whether the award of $7,500 for present and future medical expenses was manifestly inadequate. We uphold the amount awarded. The amount of a verdict is generally within the discretion of a jury, and a reviewing court will not order a new trial on damages unless the damages awarded are manifestly inadequate or it is clear that the amount of the award bears no reasonable relationship to the loss suffered by the plaintiff. (Elliott v. Koch (1990), 200 Ill. App. 3d 1, 558 N.E.2d 493.) In order to determine whether the jury verdict on damages should be reversed, the court must consider the record as a whole; this includes any evidence which carries an implication that the injuries were exaggerated or feigned or that medical treatment was not necessary or was prolonged. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) There the court found not palpably inadequate a jury award for personal injuries in an amount less than the hospital and doctor bills submitted. The court found on appeal that the record revealed that the jury had ample reason to question the nature and extent of the alleged injury to plaintiff and the legitimacy of her expenses. Plaintiff had been involved in a rear-end collision, did not seek medical attention until three to four days later, and complained of stiffness plus pain in the pelvic area and lower stomach. The plaintiff received physical therapy for several months. Plaintiffs doctor sent his bills to plaintiff’s attorney. The court stated that there was substantial evidence that plaintiff’s treatment was unwarranted or prolonged.

Here, there was evidence carrying the implication that plaintiff’s injuries were exaggerated or feigned and that the medical treatment was not necessary. Plaintiff was not candid about her prior psychiatric problems with Doctors Bukowy and Kochno, who diagnosed her as having, respectively, post-concussive syndrome and fibromyalgia. Dr. Kitslar, the only physician with a complete medical and psychiatric history of plaintiff, testified that plaintiff did not have post-concussive syndrome. He stated that he prescribed an antianxiety medication for plaintiff and recommended that she see a psychiatrist if the drug was unhelpful. Moreover, plaintiff admitted to lying during her deposition testimony when she denied her psychiatric history. From this evidence, the jury could have concluded that part of plaintiff’s treatment after the collision was for a problem not caused by this accident, but was for a preexisting problem. Moreover, it could have concluded that her testimony regarding her injuries was simply not credible. As in Nicholl, the jury had ample reason to question the nature and extent of the alleged injury to plaintiff. In sum, the $7,500 award to plaintiff for her present and future medical expenses is reasonably supported by the record as a whole and is not manifestly inadequate.

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

Affirmed.

BARRY, P.J., and HAASE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
      In re MARRIAGE OF ARLIE G. TUCKER, Respondent-Appellee, and MELBA JOSEPHINE TUCKER, Petitioner-Appellant.
    Third District
    No. 3 — 91—0038
    Opinion filed January 15, 1992.
    Michael W. Heller, of Peoria, for appellant.
    Lynch & Bloom, P.C., of Peoria (David M. Lynch, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The marriage of Arlie G. and Melba Josephine Tucker was dissolved on May 10, 1985. At that time, the circuit court of Peoria County incorporated in its order the parties’ oral agreement for child support, property distribution and maintenance. On June 20, 1990, Melba filed a petition to modify maintenance and related provisions based on an alleged substantial change in the parties’ circumstances. Arlie moved to dismiss the petition on the ground that any modification of maintenance was expressly precluded by the terms of the original agreement. The trial court granted Arlie’s motion to dismiss, and Melba appeals.

The provisions at issue recite in relevant part as follows:

“It is further ordered, adjudged and decreed by the Court, also pursuant to said oral agreement, that if Defendant [Melba] obtains disability insurance in addition to any disability insurance through her place of employment, Plaintiff [Arlie] will pay up to $75.00 per month for premiums on such additional disability insurance which would pay Defendant up to $650.00 per month in disability benefits should she become disabled pursuant to the terms of any such insurance policy, and Plaintiff shall pay said premiums in addition to the maintenance herein provided and for up to seventy-eight (78) consecutive months after the date of this Judgment. If Defendant cannot obtain such additional disability insurance and if Defendant becomes totally disabled as defined in the criteria establishing total disability pursuant to the Social Security Administration, then Plaintiff shall pay to Defendant $300.00 per month in addition to any maintenance hereinafter set forth and said $300.00 monthly payments by Plaintiff to Defendant shall be for a total period of no more than twelve (12) months, either consecutively or cumulatively.
* * *
It is further ordered, adjudged and decreed by the Court, also pursuant to said oral agreement, that the Plaintiff shall pay to the Defendant, as and for maintenance, the sum of Twelve Hundred Dollars ($1,200.00) per month, commencing the first day of the month succeeding the date of this Judgment and continuing at said amount for Seventy-seven (77) consecutive months thereafter for a total of Seventy-eight (78) months, or until the Defendant shall die, remarry, or until further Order of this Court, whichever shall first occur.
All of said payments to be made as and for maintenance as provided above, will be periodic payments in discharge of legal obligation, which, because of the marital or family relationship, is imposed on or incurred by the Plaintiff under this Judgment of Dissolution of Marriage, all within the meaning and intent of Sections 71(a) and 215 of the Internal Revenue Code of 1954, as amended, and as effective January 1, 1985, with respect to amounts of more than $10,000.00 for six (6) consecutive years, and of similar provisions of future laws. Such payments will be includable in the Defendant’s gross income pursuant to Section 71(a) and will be deductible by the Plaintiff from his gross income pursuant to Section 215 in determining their respective taxable incomes. All of said payments made as and for maintenance shall be made directly to the Defendant during the seventy-eight (78) month period set forth above.
* * *
It is further ordered, adjudged and decreed by the Court that the Defendant, having waived all other claims for maintenance and support for herself, is and shall be forever barred from any and all other maintence [sic] and support for herself from the Plaintiff, the same as if said marriage had never taken place.
It is further ordered, adjudged and decreed by the Court that both of the parties hereto are and shall be forever barred from any and all other rights of maintenance and support from the other, and from any and all other interest in and to the property of the other, either now owned or hereafter acquired, including all rights of homestead and inheritance, the same as if said marriage had never taken place.”

Melba’s 1990 petition for modification alleges substantial changes in circumstances and prays, inter alia, for an increase in the amount of monthly maintenance to $2,500 “until she should die, remarry or until the death of the Respondent, Arlie G. Tucker, whichever event should first occur,” and an increase in the disability supplement to $600.00 per month “for the same period as the *** maintenance payments.” Melba argues on appeal that the agreement contemplated modification prior to the expiration of 78 months by virtue of the contingency, “or until further order of this Court.” She says that other expressions indicating the parties’ intent to waive further claims for maintenance are not controlling because they are either ambiguous or extraneous boiler-plate language found in most orders of support drafted at the time the court entered the decree in this case.

Arlie argues that the agreement clearly provided for no extension of maintenance beyond 78 months, and that maintenance could only be terminated prior to the expiration of that period by the events specified in the agreement. The clause “or until further order of this Court,” he contends, could only further limit the duration of maintenance within the anticipated 78-month period. He says that the provisions waiving “other” maintenance specifically preclude Melba’s petition to modify.

Section 502 of the Hlinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 502) authorizes the court to incorporate the parties’ oral agreement for maintenance into an enforceable judgment. The statute specifically addresses limiting modification of terms, but does not suggest any “magic language” for this purpose:

“Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” (Ill. Rev. Stat. 1989, ch. 40, par. 502(f).)

A legislative preference for modifying maintenance agreements when it is established that the parties’ circumstances have substantially changed appears in section 510 of the Act:

“Except as otherwise provided in paragraph (f) of Section 502, in subsection (d), clause (3) of Section 505.2 [relating to failure to maintain health insurance], and in subsection (b) of this Section [relating to child support and property disposition], the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” Ill. Rev. Stat. 1989, ch. 40, par. 510(a).

Thus, it has been held that post-dissolution modification of maintenance is judicially precluded only where a settlement agreement clearly and unambiguously expresses the parties’ intent to make maintenance nonmodifiable. In re Marriage of Mateja (1989), 183 Ill. App. 3d 759, 761, 540 N.E.2d 406, 407, citing In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 426 N.E.2d 237; In re Marriage of McFarlane (1987), 160 Ill. App. 3d 721, 513 N.E.2d 1146; Simmons v. Simmons (1979), 77 Ill. App. 3d 740, 396 N.E.2d 631.

Although the parties have not cited any Hlinois precedent interpreting an agreement like the one before us, we find guidance in Mateja and the cases cited therein. In Mateja the parties’ agreement specified that the wife could earn up to $13,000 per year before her earnings would have an effect on the husband’s support and maintenance obligations. “The agreement also stated: ‘The parties further agree that the terms of the Agreement shall be nonmodifiable.’ ” The court ruled that the clear, unambiguous intent of these provisions was to render the agreement nonmodifiable unless any of the conditions specified (death, remarriage or earnings in excess of $13,000) were first established. Mateja, 183 Ill. App. 3d at 762, 540 N.E.2d at 408.

Similarly, in McFarlane, the parties’ agreement in clause 12 stated that the husband agreed not to seek a reduction in his obligations based on any future income or earnings of the wife. Nine years after the dissolution judgment incorporating the agreement was entered, the husband sought a reduction or termination in maintenance on the ground that the wife had failed to rehabilitate herself and provide for her own support. The trial court ruled that the agreement precluded modification. On appeal, the court affirmed, holding that even if the agreement were otherwise modifiable, the specific basis given in husband’s petition to modify was foreclosed by clause 12. The reviewing court found no meaningful distinction between the basis specifically barred by the agreement and that urged in the husband’s petition to modify. McFarlane, 160 Ill. App. 3d at 727, 513 N.E.2d at 1150.

Simmons presents a clear statement of the parties’ intent to preclude modification. The agreement in Simmons stated in clause (c) that the wife agreed to seek no increase in child support based on the husband’s increased earnings and the husband agreed to seek no decrease based on his own remarriage or the birth of additional children. The clause continued, “[A]nd in no event is the amount of alimony to be modifiable except for death or remarriage of wife.” (Simmons, 77 Ill. App. 3d at 741, 396 N.E.2d at 632.) The trial court construed the child support and alimony references together and ruled that alimony was modifiable to the extent that the husband’s increased earnings would not be a factor to be considered. On appeal, the court reversed this aspect of the court’s judgment, holding that the parties’ intentions to make maintenance nonmodifiable were clearly manifested and enforceable pursuant to section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. 77 Ill. App. 3d at 743, 396 N.E.2d at 634.

By contrast to Simmons, in Chalkley, the parties’ agreement did not expressly refer to modifiability. The Chalkley agreement contained merely a “cost-of-living adjustment” clause. This clause, the husband argued, expressed the parties’ intent to limit modification of maintenance, i.e., allowing an increase only upon a showing of inflation. The trial court rejected the husband’s argument and increased maintenance. The court on review agreed that the cost-of-living clause did not preclude the wife’s petition for an increase because, unlike Simmons, the parties had not specifically recited in the agreement their intention to limit modification based on inflation. Chalkley, 99 Ill. App. 3d at 481, 426 N.E.2d at 240.

Turning to the agreement before us today, we find that the parties clearly and unambiguously limited the duration of maintenance by stating that it would not extend beyond the earliest of three specific events — the expiration of 78 months, wife’s death or remarriage. The first of these events to occur would mark the termination of Arlie’s maintenance obligation. With respect to the “further order of court” clause, it is clear that the parties intended to leave the door open for an unforeseen event that could terminate Arlie’s obligation to pay maintenance prior to the end of the 78 months. By limiting the duration of maintenance to the earliest of the specified events, the parties clearly did not intend to allow for a “further order of court” that would obviate the other three events. We find that this provision, as well as the provision limiting the duration of any disability supplement that may be payable, is in sufficiently simple, clear language and that it can and should be enforced. Thus, even were the court to enter a further order modifying the amount of maintenance or terminating it prior to the end of the 78-month period, the agreement precludes a modification extending Melba’s right to maintenance beyond that time. To the extent that Melba’s petition to modify seeks such an extension of maintenance and disability payments beyond the periods agreed to, we hold that the trial court correctly determined that the agreement precluded the relief sought.

The question as to whether the parties intended to make the amounts of maintenance or disability payments nonmodifiable within the specified periods is far from clear. Unlike Chalkley, the parties’ agreement here does not even refer to inflation. Instead, only vague references to future changes in the parties’ needs may be gleaned from the last two paragraphs, quoted above, wherein Melba waived “all other claims for maintenance and support for herself,” and the parties mutually waived “all other rights of maintenance and support from the other.” However, we note that, unlike all other paragraphs relating to property distribution, these last two paragraphs are not prefaced by a reference to the parties’ oral agreement. Moreover, they are separated from the rest of the property distribution and maintenance provisions by a paragraph directing Arlie, “also pursuant to said oral agreement,” to maintain a $50,000 life insurance policy on the parties’ daughter, Kimberly J. Tucker.

Arlie’s position that any modification of maintenance is precluded by virtue of Melba’s waiver of “other claims for maintenance and support” fails to persuade. In fact, the agreement contains provisions for “other claims for maintenance and support” in the paragraph providing for Ar-lie’s payment of an additional $300 per month for up to 12 months in the event Melba should become totally disabled and up to $75 per month for disability insurance, for up to 78 months. As noted in In re Marriage of Sherrick (1991), 214 Ill. App. 3d 92, 96, citing La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 370 N.E.2d 188, and White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255, “The intent of the parties to a contract must be determined with reference to the contract as a whole, not merely by reference to particular words or isolated phrases but by viewing each part in light of the others.” In our opinion, a reading of the entire agreement supports Melba’s position that the waiver of Melba’s “other claims for maintenance and support” refers to other potential claims in the nature of requests for disability and insurance payments, and not to future modifications in the amount of maintenance based on a showing of a substantial change in circumstances within the prescribed period.

Similarly, the final paragraph of the judgment of dissolution, in which the parties mutually waive “all other rights of maintenance and support from the other,” does not convince us that the parties clearly intended thereby to limit modification of the amount of maintenance within the prescribed period. Although we find that the parties’ agreement was sufficiently clear to make the duration of payments nonmodifiable in this case without the use of any form of the word “nonmodifiable,” we suggest that the better practice is to employ such in any agreement if the parties intend to preclude future judicial modification.

Because the agreement incorporated into the judgment of dissolution does not clearly preclude modification of the amounts of maintenance and other benefits within the prescribed periods, we find that the trial court erred in granting Arlie’s motion to dismiss Melba’s petition for increases prior to the expiration of 78 months or Melba's remarriage as specified in the parties’ agreement. On remand, the court should determine whether there has been a substantial change in the parties’ circumstances justifying the monetary increases sought, which increases would be payable only within the time limitations prescribed by the parties’ agreement.

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

Reversed and remanded.

SLATER and HAASE, JJ., concur.


author: JUSTICE McCUSKEY JUSTICE STOUDER,

text:
    ANN H. CAMPBELL, Adm’r of the Estate of Douglas L. Campbell, Deceased, Plaintiff-Appellee, v. HAROLD W. MORINE, Defendant-Appellant.
    Third District
    No. 3 — 90—0666
    Opinion filed January 16, 1992.
    STOUDER, J., dissenting.
    Ackman, Marek, Boyd & Simutis, of Kankakee (J. Dennis Marek, of counsel), for appellant.
    John J. Corbett, Ltd., of Chicago (John J. Corbett, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendant, Harold Morine, appeals the trial court’s judgment finding him liable for damages of $181,296.08 arising out of an accident which caused the death of Douglas Campbell. We affirm.

Plaintiff, Ann Campbell, decedent’s mother, filed a complaint against Harold Morine, claiming that his negligent driving caused her son’s death. Douglas Campbell, age 15, was killed while jogging on Limestone Road in rural Kankakee County. Harold Morine, age 21, was the driver of an automobile which struck and killed Campbell approximately one-quarter of a mile from the intersection of Illinois Route 17 and Limestone Road.

At the location of the accident, Limestone Road is dark, flat, straight, and does not have sidewalks. The shoulders of Limestone Road are approximately 32 inches wide, and they are adjacent to a fairly steep ditch which is located on both sides of the roadway.

On February 21, 1987, at approximately 8:30 p.m., Douglas Campbell and his friend, Dustin Honn, age 15, were jogging side by side in a southerly direction near the center line of Limestone Road. Campbell was jogging near the center line in the southbound lane. Honn, while next to Campbell, was jogging near the center line in the northbound lane. Campbell was wearing very light gray sweatpants, white athletic shoes, and a Herscher High School athletic jacket. Campbell was a letterman on his high school’s cross-country team. The athletic jacket was black with the word “Herscher” across the back in large yellow letters on a white background. The athletic jacket had yellow and white stripes at the collar, waist, and bottom of the sleeves. Honn was wearing light-colored clothing at the time of the accident. Both boys regularly jogged on Limestone Road, which is the only direct route between Bonn's home, Limestone Grade School, and Campbell’s home in the Oakdale Acres subdivision.

Dustin Honn testified that while he and Campbell were jogging on Limestone Road toward Campbell’s home, he did not observe any traffic traveling south, hear the sound of a horn, or see any headlights immediately prior to the accident. Honn testified that both he and Campbell regularly checked over their shoulders to see if any vehicles were approaching. Honn believed that Morine’s vehicle was traveling about 55 miles per hour at the time it struck Campbell. The legal speed limit on Limestone Road is 55 miles per hour.

On the night of the accident, Morine was driving a 1980 Mercury Cougar with altered headlights. Morine had been involved in another recent automobile accident which caused only his bright lights to function. As a result of that accident, Morine placed duct tape over his two outside headlights so that he could drive at night with his high beams on constantly. Morine also failed to completely tape over both outside headlights because he ran out of duct tape. Therefore, each outside headlamp had a very small exposed area which also emitted light. The prior accident prevented Morine from using his low beams. Morine chose to place the duct tape over the outside lights rather than have them repaired.

Cliff Saupe, principal of Limestone Grade School, testified that on the evening of the accident, he was driving northbound on Limestone Road. Saupe was driving with his low beams on when he noticed two people walking southerly on Limestone Road. He would later learn the two people were Douglas Campbell and Dustin Honn. Several minutes after this observation, Saupe returned from Limestone School to notice that an accident had occurred. Saupe observed his former students, Dustin Honn and Harold Morine, at the scene of the accident. However, Saupe did not know how the accident occurred.

Richard Magruder testified that on the evening of the accident, he was driving at 40 miles per hour northbound on Limestone Road. He was driving with his low beam headlights on when he observed two joggers running in the roadway. Magruder testified the joggers were illuminated by the headlights of a southbound vehicle. He later learned the joggers were the decedent and Dustin Honn. Magruder said the oncoming southbound vehicle had two headlights burning. Magruder testified the oncoming southbound vehicle went off the roadway shortly after passing his vehicle. He did not observe the actual collision between Morine’s vehicle and Campbell. However, after seeing the car go in the ditch, Magruder returned to the scene of the accident within seconds. Upon returning, Magruder saw a pair of tennis shoes in the center of Limestone Road. Magruder said he had no problem seeing the boys or maneuvering around them as he passed them on Limestone Road.

Harold Morine testified that he observed “something” moving in the middle of the southbound lane of Limestone Road. However, he did not recognize it as a person until the moment of impact. Morine recalled the person his automobile struck was in the middle of the southbound lane of Limestone Road at the time of the accident. Morine did not observe anything within the roadway until Viz to 2 car lengths immediately before impact. Morine stated he was traveling between 50 and 55 miles per hour at the time of impact. He also testified that he did not have time to honk his horn prior to hitting Campbell. Morine said he frequently drove Limestone Road and was aware that residential homes were located along the road.

Morine also testified that he swerved into the northbound lane and hit the brakes in an effort to avoid striking Campbell. Morine said his evasive efforts failed because Campbell moved to Morine’s left, thereby preventing him from avoiding the collision. At the coroner’s inquest, Morine testified he thought his tires locked up because they squealed. At trial, Morine said he swerved, braked, and lost control of the car. Except for his testimony concerning losing control of the car, much of Morine’s testimony about his evasive driving maneuvers was impeached at trial. The deputy sheriff who investigated the accident scene testified he found no evidence of braking or skid marks in the impact area. In fact, the deputy testified there were no skid marks prior to or after the general area of impact.

Morine testified at trial that his altered headlights were in a condition equivalent to his low beams before the first accident. However, Morine’s trial testimony stands in stark contrast to his prior testimony at the coroner’s inquest, where he said his headlights had been pushed down so they “shown right on the road.”

At the conclusion of the five-day bench trial, Campbell’s counsel urged the trial court to enter judgment against Morine in the amount of $900,000. Campbell’s attorney conceded that Douglas Campbell was negligent in jogging in the wrong lane of Limestone Road. Campbell’s counsel asked the trial court to attribute 10% negligence to the decedent’s acts. Morine’s counsel asserted that the decedent was more than 50% negligent and that the plaintiff had failed to prove any negligence attributable to Morine’s driving. Therefore, Morine’s attorney urged the trial court to find in his client’s favor and enter judgment against Campbell.

The trial court entered judgment under the Illinois Wrongful Death Act against Morine and in favor of Campbell. (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2.) The trial court found the total damages suffered by Campbell’s estate as a result of Morine’s negligence to be $250,000. The trial court then found the decedent’s negligence to be 35% of the total and reduced the judgment accordingly to $162,500. An additional judgment against Morine of $18,796.08 was entered in favor of Campbell’s estate under the Illinois Survival Act. Ill. Rev. Stat. 1985, ch. 1101/2, par. 27 — 6.

The trial court in its memorandum of opinion made the following findings:

“The more difficult of the issues goes to the negligence assignable to the decedent and the defendant. It is mainly occasioned either solely by the negligence of the decedent or that, if there was any negligence on the part of the defendant, then the plaintiff should be denied recovery because the decedent’s attributable negligence should greatly exceed 50%. That the decedent was guilty of negligence there can be little or no doubt as the evidence plainly shows that the decedent was jogging down the highway in the defendant’s lane somewhere between the middle of that lane and the center line of the highway contrary to the law that pedestrians should be not only off the highway if possible but on the side of the oncoming traffic. In regard to negligence, a minor is not held to the same standard as an adult but is held to the degree of care which a reasonably careful minor of the age, mental capacity and experience of the decedent would use under circumstances similar to those shown by the evidence, and the same rule applies when a minor decedent is charged having violated a statute.
The minor at the time of the incident was 15 years old being approximately a week shy of his 16th birthday. His companion on that night was one Dustin Honn who was also 15 years of age and upon cross-examination confirmed that the decedent was to his left somewhere in the roadway going with the traffic as opposed to against it. It has always been this Court’s observation in the experience of the affairs of life that a great many people of all ages are either unaware of the fact that they are supposed to walk on the side of the road facing and against the oncoming traffic or for whatever reason violate that rule and that such an occurrence should not only be expected but should reasonably be expected. The Court finds no other negligence attributable to the decedent as the testimony plainly indicates that both the decedent and Mr. Honn each checked over their shoulder about 15 times apiece to make sure that a vehicle was not coming upon them from the rear. The Court has no complaint with the decedent’s dress as the Court believes he should have been easily seen by the defendant.”

Morine argues on appeal that the trial court erred by applying an improper standard in assessing the negligence of the decedent. Morine argues that the appropriate standard of negligence attributable to an almost-16-year-old jogger on a public highway is an adult standard of care. In other words, Morine urges the same duties on the 15-year-old decedent pedestrian that would be placed upon an adult.

According to Illinois Pattern Jury Instructions, Civil, No. 10.05 (2d ed. 1971) (IPI Civil 2d No. 10.05), the law is clear that a trial court may consider the age, ability and experience of a minor in determining the level of negligence attributable to him. We note that Campbell’s attorney requested the trial court to apply IPI Civil 2d No. 10.05 to the evidence and to review the cases cited in the annotation to that instruction. The record clearly reflects that the trial judge applied IPI Civil 2d No. 10.05 to the evidence and relied on the cases cited in its annotation as the basis for the court’s findings and judgment. Based on our review of the record, we do not find this to be error.

In fact, we find IPI Civil 2d No. 10.05 is the proper statement of the law to be applied in cases just such as this. IPI Civil 2d No. 10.05 contains the following as an introduction: “A minor is not held to the same standard of conduct as an adult.” Nowhere within the instruction or comments does it state that a minor above age 14 is held to the same standard of care as an adult. IPI Civil 2d No. 10.05 was published in 1971, and no change in instruction No. 10.05 has ever occurred. IPI Civil 2d No. 10.05 provides in pertinent part:

“The degree of care to be exercised by a minor over the age of seven years is that which a reasonably careful person of the same age, capacity, and experience would exercise under the same or similar circumstances.” (Illinois Pattern Jury Instructions, Civil, No. 10.05, Comment, at 57 (2d ed. 1971).)

Therefore, even though a minor could be held to the same standard of care as an adult, he is not held to that standard, unless the trier of fact determines that his age, abilities and experience require application of the adult standard of care.

Our review of this record indicates that the trial court arrived at its judgment after carefully considering the credibility of the witnesses and the sufficiency of the evidence. The trial court made the following findings: (1) Morine drove with defective headlights; (2) he failed to keep a proper lookout; (3) he took no evasive action to avoid striking the decedent; (4) Morine was the proximate cause of Campbell’s death; and (5) Morine’s testimony was impeached and he was not a credible witness. Based upon our review of the entire record, we find substantial evidence to support the trial court’s findings.

Where a case is heard by the trial court sitting without a jury, the reviewing court should presume the trial court considered only such evidence as was competent and proper, unless the contrary is shown. (In re Application of County Treasurer (1978), 67 Ill. App. 3d 122, 384 N.E.2d 729.) The trial court has the superior vantage point to assess the credibility of the witnesses. (M.E. Stein & Co. v. Jones (1973), 13 Ill. App. 3d 184, 300 N.E.2d 553.) A reviewing court should not substitute its judgment for that of the trial court unless the findings of the trial court are clearly and manifestly against the weight of the evidence. Lundy v. Boyle Industries, Inc. (1977), 46 Ill. App. 3d 809, 361 N.E.2d 321.

The trial court articulated a lengthy and carefully reasoned finding of fact before it entered judgment. Only if the trial court abused its discretion would this court disturb its findings and judgment. The result reached by the trial court is clearly supported by the manifest weight of the evidence. We find no abuse of discretion.

For the reasons heretofore stated, the circuit court of Kankakee County is affirmed.

Affirmed.

SLATER, J., concurs.

JUSTICE STOUDER,

dissenting:

I must respectfully dissent.

Illinois Pattern Jury Instruction Civil 2d Number 10.05 does not take into account the many cases which have established a range between the ages of 7 and 14 as being the ages of those who are presumed to be held to a minor’s standard of care. Generally, the case law holds that when the plaintiff is between the ages of 7 and 14, the defendant must introduce evidence indicating that the plaintiff should not be held to the lower standard of care. However, I have found no cases indicating whether the plaintiff or the defendant must present evidence of the plaintiff’s experience, intelligence, and capacity when the plaintiff is over the age of 14. Moreover, it seems the notes accompanying IPI Civil 2d No. 10.05 ignore the case law to hold that instead of there being a range of between 7 and 14 years of age, now any minor over the age of seven is presumed to be held to a child’s standard unless otherwise shown.

The only case I found concerning a plaintiff over the age of 14 is Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill. App. 2d 5, 220 N.E.2d 43. In Dickeson, the court held that when determining the question of due care the factors of experience, intelligence, and capacity must be considered in the case of a minor over 14 years of age. At any rate, if the previously mentioned factors are to be considered, it has yet to be decided who has the burden to present the evidence in favor of or against applying the adult standard of care in these instances.

I agree that a minor is not held to the adult standard of care unless the trier of fact determines that his age, abilities and experience require application of the adult standard. Again, however, this does not answer the question of who has the burden of presenting evidence of either diminished capacity or the intelligence and experience of the minor. I note that once comparative negligence arises, it is the plaintiff’s responsibility to show diminished responsibility. Therefore, would it not follow that a plaintiff over the age of 14, who is no longer within the range of those presumed to be minors, must present evidence establishing diminished responsibility in order to warrant application of the minor’s standard of care? The point I wish to make is why does the draft in the instant case seemingly overlook the past case law which utilized a 7- through 14-year-old range?

This is a question without an answer yet in Illinois. There are recent cases from other jurisdictions involving plaintiffs who are 14 years or older. In a North Carolina case involving a pedestrian plaintiff, the court held:

“[Ajfter a youth reaches the age of 14 there is a rebuttable presumption that he possesses the capacity of an adult to protect himself; therefore, *** he is presumptively chargeable with the same standard of care as if he were an adult.” (Annot., 32 A.L.R.4th 56, 71 (1984).)

The court further noted that when a youth reaches the age of 14 years he no longer has the benefit of the rule that a person between the ages of 7 and 14 is presumed to be incapable of contributory negligence. Golden v. Register (1981), 50 N.C. App. 650, 274 S.E.2d 892. See also Annot., 32 A.L.R.4th 56 (1984).

As applied to the instant case, the 15-year-old plaintiff ought not to have the benefit of the rebuttable presumption in favor of a minor’s standard of care which does not apply to individuals over the age of 14. In the record, the trial court seems to indicate that if indeed it was the plaintiff’s duty to present evidence of diminished capacity, then its decision was wrong. I think its decision was wrong and a new trial should be granted in this case with instructions pertaining to the plaintiff’s obligation to present evidence of diminished capacity in order to apply a minor’s standard of care.

Accordingly, I must respectfully dissent.


author: JUSTICE STOUDER

text:
    THE CITY OF PEORIA, Plaintiff-Appellee, v. WARREN E. DANZ, Defendant-Appellant.
    Third District
    No. 3 — 91—0005
    Opinion filed January 16, 1992.
    Warren E. Danz, P.C., of Peoria (Warren E. Danz, pro se, of counsel), for appellant.
    Clifton Mitchell, Assistant Corporation Counsel, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, City of Peoria (Peoria), brought this action for injunction against the defendant, Warren Danz, to require compliance by the defendant with a Peoria zoning ordinance and for the imposition of a fíne for its violation. The complaint alleged the defendant maintained a duplex which failed to meet the minimum lot size requirement for duplexes in Peoria. After a bench trial, the court entered judgment in favor of Peoria. The defendant appeals.

On appeal, the defendant contends the trial court erred in finding that he failed to establish a lawful nonconforming use of his property.

The subject property is located at 1011 E. Frye Street in Peoria and was purchased by the defendant as an investment in 1974. To date, the subject property is approximately 80 to 85 years old, which places its date of construction between 1905 and 1910. In 1931, Peoria enacted a zoning ordinance requiring duplexes, like the defendant’s, to have a minimum lot size of 5,000 square feet. The defendant’s property has a lot size of 4,000 square feet.

The record shows that both the first and second floors of the subject property had two bedrooms, a kitchen, and a bathroom. Because of the type of materials employed on the second floor, an architect dated the construction of the second floor to the late 1920’s, prior to the adoption of the zoning ordinance. The same architect testified that the structure had not been renovated from the time it was constructed as a duplex.

Further evidence was presented showing that the subject property was rented as a duplex from 1961 through the current date. The trial court, however, required the defendant to show that the property was rented from 1931, the date of the enactment of the ordinance, through 1961. This, even the trial court acknowledged, places a burden on the defendant that is virtually impossible to meet.

The defendant testified that since purchasing the subject property in 1974, he has rented it as a duplex continuously except for a few occasions where it might have been empty for a few weeks. He testified further that he initiated an investigation to determine whether the property had been used as a duplex from the date of the ordinance. He believed the property was in compliance due to a certificate of compliance he received from the Peoria housing department.

The trial court found the defendant failed to prove the existence of a lawful, nonconforming use. The defendant appeals.

It is settled that the burden of proof is upon the party asserting a right to a nonconforming use to establish the lawful and continued existence of the use at the date of the enactment of the zoning laws pertaining to it. (City of Elgin v. Rippberger (1978), 59 Ill. App. 3d 92, 375 N.E.2d 170.) In the instant case, the trial court placed an unreasonable burden on the defendant to show that, prior to the zoning ordinance and at all times since, the subject property has been used as a duplex. The court interpreted “use” to mean continuous occupancy as a duplex. The relevant zoning ordinance provides, however, that a nonconforming use is one which lawfully existed prior to the enactment of a zoning ordinance or zoning amendment but is maintained afterward even though it does not conform to the new use restrictions and even though similar uses could not thereafter be incorporated. The more reasonable interpretation of the ordinance places a burden on the defendant to prove that the subject property has been maintained as a valid nonconforming use since prior to enactment of the zoning change.

Furthermore, if the trial court’s interpretation of use is accepted, it would place a burden on property owners to find a tenant, any tenant at any price, so as to not to lose its nonconforming status due to failure to meet the “continuous occupancy” standard. The Peoria building code defines “use” as maintained in the manner existing prior to the enactment of the ordinance. That being the case, the defendant in the instant case established that the subject property was built prior to the enactment of the zoning ordinance as a duplex and had not been renovated since that time. We conclude, therefore, that the trial court erred in failing to find a lawful, nonconforming use.

For these reasons, we reverse the judgment of the circuit court of Peoria County.

Reversed.

GORMAN and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLIE GORDON LYNN, Defendant-Appellant.
    Third District
    No. 3 — 90—0840
    Opinion filed January 16, 1992.

      Verlin R. Heinz, of State Appellate Defender’s Office, of Ottawa, and Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Hertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Charlie Gordon Lynn, appeals his conviction for official misconduct (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3). We affirm.

The record shows that the defendant was initially charged with official misconduct and attempted unlawful delivery of over 15 grams of a controlled substance (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4; ch. 561/2, par. 1401). At trial, Officer Ronald Wilson testified that Albert Dixon, an inmate at the Stateville Correctional Center, had told authorities that a prison employee was willing to smuggle narcotics into the prison. Wilson decided to set up an undercover operation in which he would pose as Dixon’s brother and ask the employee to deliver narcotics to Dixon.

On December 18, 1987, Wilson called a telephone number supplied by Dixon and spoke to the defendant. The defendant agreed to deliver narcotics to Dixon. He said his fee would be one-half of the drugs delivered.

Wilson further testified that he had three more telephone conversations with the defendant concerning the transaction. Thereafter, on December 29, 1987, Wilson and Officer Brandon Brown met the defendant at a gas station. They later drove to the defendant’s residence. Wilson was wearing a listening device, and a recording of the conversation they had that day was played to the jury. On the tape, the defendant stated that he was homosexual. He also said that he could discourage a thorough search of his person by pretending to enjoy it.

Since the tape was sometimes difficult to understand, the trial court allowed the State to question Wilson about the conversation. The prosecutor asked if the defendant said he had any means of preventing a thorough search. Wilson replied that the defendant told him he could do so by asking the guard to press harder. The prosecutor then asked if the defendant had indicated his sexual preference. After defense counsel objected, the parties had an off-the-record discussion with the trial court. The prosecutor then asked a different question.

Wilson further testified that the defendant said he would smuggle the cocaine into prison by hiding it in his boots. The defendant believed that the person searching him would not keep his boots off for long because of his foot odor. He also told Wilson to package the cocaine in small bundles and not use any metallic tape. As payment, they agreed that the defendant would receive between $100 and $200 as well as one-eighth ounce of cocaine.

On December 30, 1987, Wilson and Brown went to the defendant’s home. Wilson gave the defendant $100 and two packages of a substance resembling cocaine. One package contained 14.1 grams, and the other contained 7.2 grams. After the defendant received the items, he was arrested.

After Wilson’s testimony, the prosecutor stated that he had made an error in the amount of cocaine charged in the attempted unlawful delivery count. He therefore dropped that count.

Officer Brown then testified about his role in the case. His testimony was generally consistent with Wilson’s testimony.

Barbara Miller testified that she was a nursing supervisor at Stateville. She sometimes supervised the defendant, who was a medical technician. One of the defendant’s responsibilities was to deliver medication to the prisoners. When he did so, he walked freely throughout the prison without carrying a special pass.

Miller further testified that the guards were supposed to thoroughly search everyone who entered the prison. However, about once a week the guards allowed her to enter without a search. She estimated that in the past seven years, on about six occasions she was required to remove her shoes during the search.

Venetta Foulks-Wright testified that she was a correctional lieutenant at Stateville. On more than one occasion, the defendant told her that inmates had harassed him about bringing contraband into the prison. She advised him to file an incident report. When she examined the defendant’s shoes at trial, she said that the metal arch supports would trigger the metal detector. The defendant would then be required to remove his shoes for examination.

Following the close of proofs, the jury found the defendant guilty of official misconduct.

On appeal, the defendant first argues that he was improperly convicted of official misconduct. Official misconduct occurs where a public employee, acting in his official capacity, solicits or knowingly accepts a fee or reward which is not authorized by law for the performance of any act. (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3(d).) The defendant argues that the State failed to show that he was acting in an official capacity when he agreed with Wilson to deliver the cocaine.

An act is performed in a public officer’s official capacity if it is accomplished by exploitation of his public position. (People v. Kleffman (1980), 90 Ill. App. 3d 1, 412 N.E.2d 1057.) The offense of official misconduct was designed to reach those situations where a public officer or employee has exploited his official position to the detriment of the public good. People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757.

The record shows that the defendant agreed to deliver cocaine to Dixon. As a prison medical technician, he had regular access to the prison and its inmates. He was also familiar with the search procedures. It is clear that his status as a public employee was integral to the drug transaction. We therefore hold that he could have been properly found to have acted in an official capacity when he agreed to deliver the cocaine.

The defendant next argues that the prosecutor improperly implied that the defendant was homosexual when he examined Wilson about the tape. The defendant bases his argument on the prosecutor’s questions about his sexual preference and whether he had indicated that he could avoid a thorough search.

The State first notes that the evidence objected to was also contained on the tape. Before the tape was played, the defendant did not object on the grounds that it contained evidence of his homosexuality. The State further notes that the record does not contain a final ruling on the defendant’s objection to the question about his sexual preference. Accordingly, the State argues that the issue was waived. We find, however, that the issue has been preserved because the defendant made a contemporaneous objection to the questioning and raised the issue in his post-trial motion. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Evidence of a defendant’s homosexuality is admissible if it is relevant to the case. (People v. Sales (1986), 151 Ill. App. 3d 226, 502 N.E.2d 1221.) Here, the question about the search was relevant because it shed light on how the crime was to be committed. The question about the defendant’s sexual preference was arguably irrelevant. However, it was not prejudicial because the objection was apparently sustained and the "witness did not answer it. We therefore find no error.

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

Affirmed.

HAASE and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY WILLIAMS, Defendant-Appellant.
    Third District
    No. 3 — 90—0643
    Opinion filed January 16, 1992.

      STOUDER, J., dissenting.
    Maurice M. Dore, of Dore & Rothschild, of Chicago, for appellant.
    William Poncin, State’s Attorney, of Macomb (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

On July 24, 1990, defendant, Anthony Williams, was found guilty at a bench trial in the circuit court of McDonough County of committing aggravated criminal sexual assault, in violation of section 12 — 14(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(1)). Williams was sentenced to 12 years’ imprisonment. He appeals. We affirm.

The trial commenced on July 18, 1990, with the testimony of J.O., the complainant and victim. J.O. testified that on September 24, 1988, she joined a friend in celebrating her friend’s birthday. They went to a local tavern where J.O. drank about three beers. Thereafter, J.O. proceeded to the campus of Western Illinois University (WIU) to see a friend. While en route, she saw Mark Ackers, who was awaiting the arrival of two friends, one of whom was Williams.

J.O. later ran into Williams and his friend, Karl, who were looking for somewhere to “party.” J.O. escorted Williams to the female section of a residence hall at WIU so he could purchase cocaine. There, Williams purchased some cocaine. J.O., Williams, Ackers, and another person returned to J.O.’s apartment and ingested some cocaine and marijuana. After a brief stay, Williams, Ackers, and their friend left. Shortly thereafter, Williams returned to J.O.’s apartment. He inhaled more cocaine, and asked to spend the night. J.O. agreed, provided he would sleep on the couch. Later, Williams knocked on her bedroom door, asking her to turn off a certain light. As she moved into the living room, she observed Williams was dressed only in his underwear. J.O. stated Williams then pulled a knife, placed it next to her face, pushed her to the couch, commanded her to undress, and engaged her in both oral sex and vaginal intercourse.

Following the incident, Williams requested J.O. drive him back to WIU. Upon returning to her apartment, J.O. told her neighbor of the assault. Ultimately, the police were contacted. J.O. initially went to the hospital to be examined and seek medical treatment if necessary. While there, she told the emergency room physician the factual history of the incident. J.O. next proceeded to the police station, even though she had been initially reluctant to contact the police. In her testimony, J.O. did not explicitly recall the manner in which Williams used the knife. The record reflects no neighbors heard any unusual noises emanating from her apartment at the time of the incident.

During the State’s case in chief, J.O. was allowed to testify, over objection, to the adverse emotional effects the assault had on her. J.O. indicated that she had experienced panic attacks, depression, and was being treated by a doctor.

The examining emergency room physician also testified over objection to the factual history J.O. repeated to him regarding the incident. In addition, the physician testified that his examination of J.O. revealed no fresh bruises, scratches, or abrasions.

J.O. admitted to using narcotics immediately prior to this incident and also at other times. It is clear from the record that at one time, she had a drug dependency problem. The investigators discovered a knife in J.O.’s kitchen, but Williams’ fingerprints were not found on the knife. The investigators did find Negroid hair samples within J.O.’s apartment.

Williams denied committing any of the offenses alleged by J.O. He emphasized that J.O. had ingested considerable amounts of cocaine and marijuana over the course of the night in question and that she craved more. Williams insisted that J.O. agreed to have sex with him if he would purchase some cocaine. Following Williams’ purchase of cocaine at WIU, they all went back to J.O.’s apartment to “party.” Williams testified that J.O. had invited him to come back to her apartment after everyone left. Upon his return, they finished off more cocaine and engaged in sex. Williams stated that J.O. did not resist him in any way or instruct him to discontinue having sex with her. Williams also denied possessing and using a knife as well as using any force against J.O. When Williams learned the police were looking for him, he voluntarily turned himself in to the authorities even though he did not have sufficient money to post bond.

Williams was convicted and sentenced following a bench trial. Williams obtained new counsel who then filed a post-trial motion seeking a new trial on the grounds that his original trial counsel should have sought a change of venue. The trial judge denied Williams’ post-trial motion. Thereafter, the trial judge sentenced Williams to 12 years’ imprisonment in the Illinois Department of Corrections. The trial judge announced while sentencing Williams that he had considered the adverse effects of the assault on J.O., e.g., psychological, emotional, physical, etc.

Williams’ initial contention on appeal is that he was not proven guilty beyond a reasonable doubt of the offense of aggravated criminal sexual assault. Amidst this contention, Williams asserts that due to J.O.’s involvement with illegal drugs, her testimony was not reliable, credible, or trustworthy. Therefore, Williams alleges that J.O.’s testimony was not clear and convincing or sufficiently corroborated in order to support a conviction. Williams also contends that the trial judge applied an incorrect burden of proof in convicting him. Williams suggests that there was not sufficient evidence to corroborate J.O.’s testimony because J.O.’s testimony was substantially impeached.

Williams contends that allegations of sexual misconduct are easily made, hard to prove, and harder to defend. (People v. Nunes (1964), 30 Ill. 2d 143, 146, 195 N.E.2d 706.) Williams urges that a conviction for aggravated criminal sexual assault, where the defendant denies the charge, should be upheld upon review only when the testimony of the complainant is clear and convincing or is corroborated by other evidence. This standard of review has been followed in sex-offense cases for many years. However, our supreme court in a very recent decision has rejected the sex-offense standard of review, that a victim’s testimony be clear and convincing or substantially corroborated. (People v. Schott (1991), 145 Ill. 2d 188.) The court in Schott has adopted the reasonable doubt test set forth in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267. The proper standard of review according to Collins (106 Ill. 2d at 261) is that criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a doubt of the defendant’s guilt. The Collins test to be employed on review “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Prior to the Schott decision, we had already adopted the reasonable doubt standard articulated in Collins to be used when reviewing claims of evidentiary insufficiency in sex-offense cases. (People v. Wheeler (1991), 216 Ill. App. 3d 609, 575 N.E.2d 1326.) The resolution of factual disputes between the witnesses’ testimony and the assessment of the credibility of the witnesses are matters best left to the sound discretion of the trial court. A reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208.

Williams maintains that J.O.’s testimony should be given little credibility due to her admitted drug use. A complainant’s testimony need not be unimpeached, uncontradicted, or perfect to be clear and convincing. (People v. Findlay (1988), 177 Ill. App. 3d 903, 532 N.E.2d 1035.) Any weakness in the testimony, such as inability to remember exact dates and times, as well as other minor contradictions or inconsistencies, only affect the weight to be given the testimony, and do not themselves create a reasonable doubt. People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359.

We find upon a review of the record that J.O.’s testimony was believable. Her recall appeared to be explicit and consistent. J.O. remembered the events of the evening and incident in both a chronological order and a coherent manner. The fact that she had a drug problem and ingested cocaine on the night in question did not dissuade the trial court from accepting her testimony regarding the incident. The trial court was clearly satisfied that J.O. was a credible witness and believable. The trial court was not only able to listen to her live presentation, but was also able to observe her manner and demeanor while testifying.

Further, J.O.’s testimony was sufficiently corroborated by other witnesses and the evidence. Her neighbor and the emergency room physician both testified consistently with J.O.’s version of the events. Even though the emergency room physician indicated that she was feeling the effect of drugs at the time of examination, the trial judge obviously felt that factor did not significantly detract from her credibility or the believability of her story. Based upon a review of the entire record, we find Williams was convicted based on evidence which proved the defendant guilty beyond a reasonable doubt.

Williams insists that the trial court committed reversible error when it allowed J.O. to testify concerning the adverse effects she suffered following the sexual assault. J.O. testified as follows: (1) she suffered depression; (2) she experienced panic attacks and nightmares; and (3) she received treatment from a doctor. We find that J.O.’s testimony about the adverse effects of the sexual assault was admissible and did not prejudice Williams.

In People v. Brown (1982), 107 Ill. App. 3d 576, 437 N.E.2d 1240, the prosecutor elicited testimony from the complainant as to the psychiatric care and treatment she received following the attack. The court concluded that since the defendant attempted to discredit the credibility of the complainant, this testimony was material and relevant to the State’s case. In People v. Barlow (1989), 188 Ill. App. 3d 393, 544 N.E.2d 947, it was apparent that the prosecution elicited testimony regarding the victim’s mental state solely for the purpose of eliciting sympathy from the jury. However, the court found the inflammatory comments did not sufficiently inflame the emotion or passion of the jury to cause prejudice to the defendant. Our review of the record indicates J.O.’s testimony was not intended to inflame or arouse the sympathy of the trial judge. Williams attempted to discredit J.O.’s version of the events by claiming that the sexual encounter was consensual. Therefore, her testimony was material and relevant to the issue of consent.

Williams also suggests that J.O.’s testimony was irrelevant and should only have been presented by a duly qualified rape trauma syndrome expert. He cites People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335, in support of this premise. Douglas is distinguishable from the present situation. In Douglas, an expert testified that the victim exhibited symptoms of rape trauma syndrome (RTS). The court in Douglas did not hold that the victim could not testify concerning the adverse effects resulting from a sexual assault. Rather, the victim in Douglas testified without objection to the adverse effects of the assault. The victim testified: (1) she lost weight; (2) she could not watch violent shows; (3) she is afraid of black people; (4) she quit her job; (5) she is receiving counseling; and (6) she encountered difficulty sleeping. In this appeal, RTS was not discussed nor was it an issue before the trial court. The State only asked J.O. to describe how the events of the assault affected her subsequent life. The defense’s objection was overruled. The State indicated it was not going to present any expert testimony concerning RTS.

Each of the factors to which J.O. testified was within her personal knowledge. Our review of the record indicates this testimony was useful, sufficiently corroborated, and was admissible because it did not involve a subject beyond the realm of knowledge and understanding of a lay person. We find no expert testimony concerning RTS was required based on our review of the record.

Williams next argues the trial court committed reversible error by permitting the State in rebuttal to introduce new evidence as well as repeat certain portions of its case in chief. We disagree. It is normally not an abuse of discretion for the court to allow rebuttal testimony which should have been offered in the case in chief. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.) The admissibility of rebuttal evidence is a matter left to the sound discretion of the trial judge and is subject to reversal only if there is a clear abuse of that discretion. (People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199.) J.O. was allowed in rebuttal to repeat certain portions of her testimony that she related during the State’s case in chief. Repetition during rebuttal of a portion of the matters testified to in the State’s case in chief is permissible if the trial judge determines that the rebuttal evidence helps to explain, repel, or contradict the defendant’s case. People v. Gray (1980), 85 Ill. App. 3d 726, 410 N.E.2d 493.

Williams next contends that the trial judge committed reversible error by admitting into evidence J.O.’s statement which was made to the emergency room physician. We disagree for two reasons. Initially, the defendant waived any alleged error because his attorney vigorously cross-examined the doctor about the statements made by J.O. When a defendant objects to the introduction of certain testimony on direct examination, but then pursues that same line of questioning on cross-examination, the defendant waives any error with the introduction of such testimony. People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.

Also, it is noted that section 115 — 13 of the Code of Criminal Procedure of 1963 provides for the admissibility of such evidence. Section 115 — 13 states:

“In a prosecution for violation of Section 12 — 13, 12 — 14, 12 — 15 or 12 — 16 of the ‘Criminal Code of 1961’, statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admitted as an exception to the hearsay rule.” Ill. Rev. Stat. 1989, ch. 38, par. 115-13.

In People v. Enoch (1989), 189 Ill. App. 3d 535, 545 N.E.2d 429, the court upheld the admission of a sexual assault victim’s statement made to a treating physician under similar circumstances. In both that case and the present appeal, the trial judge ruled that such statements were admissible in evidence because they were made in connection with the diagnosis and treatment of the victim. The court in Enoch relied on the case of United States v. Iron Shell (8th Cir. 1980), 633 F.2d 77, where the court permitted the examining physician to testify about the statements made by the rape victim concerning how the attack on her was perpetrated. Statements made by the victim to her treating physician are admissible in evidence when these statements are made in response to the doctor in connection with his diagnosis and treatment. In addition, section 115 — 13 of the Code of Criminal Procedure provides the trial court with discretion in this matter because the trial court must determine whether the statements made by the victim are “reasonably pertinent to [the victim’s] diagnosis or treatment.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 13.) A trial judge, when acting as the finder of fact, is presumed to have considered only admissible evidence in reaching his decision. (People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208.) The trial court was in the better position to determine the proper weight to be given to the victim’s testimony. We will defer to the trial court when there does not appear to be any abuse of its discretion.

Williams next contends that he was denied his right to a fair trial due to the prosecutor misstating certain evidence and arguing improper inferences during closing argument. Williams claims the trial court committed reversible error by allowing the prosecutor to argue that the knife was found in J.O.’s kitchen because the kitchen is the last room that Williams walked through when he left her apartment. The layout of J.O.’s house was discussed during this trial, and it could have been inferred that such an occurrence was a possibility. Counsel may draw reasonable inferences from the evidence presented even if the inferences are unfavorable to the defendant. People v. Garza (1981), 92 Ill. App. 3d 723, 414 N.E.2d 1328.

A prosecutor is to be permitted great latitude in making his closing argument. The trial court’s determination of the propriety of such argument will not be disturbed on review absent extreme error. The standard for determining if prosecutorial comments made during closing argument constitute reversible error is whether those remarks were such that, without their having been made, the jury might have reached a different result. (People v. Reese (1984), 121 Ill. App. 3d 977, 460 N.E.2d 446.) If the fact finder found that such inference or suggestion was implausible or incredible, it could have disregarded this line of argument or suggestion. The scope, substance, and style of a closing argument must be left to the sound discretion of the trial court, which is in a better position to determine the real effect of any statement that otherwise might be considered prejudicial. In order to reverse a case on the basis of comments made in closing argument, it must be determined that the improper remarks complained of influenced the fact finder in a manner which resulted in substantial prejudice to the defendant. (People v. Fain (1976), 41 Ill. App. 3d 872, 355 N.E.2d 61.) Based upon our review of the record, we agree with the trial court’s determination that the prosecutor’s remark was harmless error.

Williams next asserts that the sentence imposed by the trial court was excessive. He specifically claims that the trial court should not have considered his use of the knife in the commission of the offense or the psychological impact of the assault on J.O. The trial court sentenced Williams to 12 years’ imprisonment following his conviction of the Class X felony of aggravated criminal sexual assault. A conviction for a Class X felony is ordinarily punishable by a term of incarceration (in addition to other penalties) of not less than six nor more than 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) An appropriate sentence, within the statutory guidelines, is largely a matter of judicial discretion. A proper sentence must be based upon the particular circumstances of each case. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The trial judge is not required to set forth each and every reason or specify the weight given each factor considered in the sentencing decision. (People v. Brajcki (1986), 150 Ill. App. 3d 506, 501 N.E.2d 774.) In the present case, the trial judge considered Williams’ use of the knife in committing this offense as well as the psychological impact of this assault on J.O. According to People v. Sanford (1983), 119 Ill. App. 3d 160, 456 N.E.2d 333, the trial court may consider the psychological impact of a sexual assault on the victim in determining an appropriate sentence. In addition, among the factors to be considered in imposing sentence are the circumstances surrounding the offense and the need to deter others from committing similar acts. (People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.) The trial judge, having heard the evidence first hand, was in a better position to weigh the sentencing factors. His determination should not be reversed absent a clear abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The sentence imposed by the trial judge was within the permissible range set forth in the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) The psychological impact of this incident upon J.O., as well as Williams’ utilization of a knife in the furtherance of this offense, was certainly justification for a sentence greater than the minimum term of incarceration. For these reasons, the trial court’s sentencing determination is affirmed.

The last contention Williams raises is that he did not receive effective assistance of counsel as required by the sixth amendment of the United States Constitution. Specifically, he contends that his counsel (1) should not have waived a jury trial; (2) failed to file, and should have filed, for a change of venue; and (3) failed to file, and should have filed, a motion to dismiss the charge.

Our review of the record indicates that Williams’ claim of ineffective assistance of counsel is without merit. In order to establish that he did not receive effective assistance of counsel, Williams must show that his counsel’s performance fell below an objective standard of reasonableness, and that but for his counsel’s deficiency, the result of the trial would have been different. People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

The procedural decisions made by counsel during the course of a trial are largely a matter of trial strategy. The procedural decisions to waive a jury trial and not to seek a change of venue are, standing alone, not sufficient grounds to claim that his counsel was ineffective. People v. Bendon (1981), 97 Ill. App. 3d 107, 422 N.E.2d 645; People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247.

Our review of the record indicates that it was unlikely that counsel could have caused the information to be dismissed. If counsel attempted to do so, the trial court would have denied the motion since there are limited grounds upon which counsel can seek to have an indictment dismissed.

The information filed in this case appeared in part as follows:

“ANTHONY A. WILLIAMS on or about the 29th day of September, in the year of our Lord one thousand nine hundred and eighty-eight, at and within the said County of McDonough in the State of Illinois, aforesaid, while displaying a dangerous weapon, a knife, knowingly committed a criminal sexual assault, in violation of the Illinois Revised Statutes, Chapter 38, Section 12 — 13(a)(1), against [J.O.] in that by the use of force or by the threat of the use of force, the defendant placed his penis in the vagina of [J.O.], and did then and there, thereby, commit the offense of AGGRAVATED CRIMINAL SEXUAL ASSAULT, in violation of Chapter 38, Section 12 — 13(a)(1) of the Illinois Revised Statutes.
Class X Felony ***.”

A trial judge may dismiss criminal charges prior to trial only for the reasons set forth in section 114 — 1 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1989, ch. 38, par. 114-1). Section 114-1 of the Code of Criminal Procedure of 1963 provides in pertinent part:

“114 — 1. Motion to dismiss charge, (a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with Section 103 — 5 of this Code;
(2) The prosecution of the offense is barred by Sections 3 — 3 through 3 — 8 of the ‘Criminal Code of 1961’, approved July 28, 1961, as heretofore and hereafter amended;
(3) The defendant has received immunity from prosecution for the offense charged;
(4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;
(5) The indictment was returned by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant;
(6) The court in which the charge has been filed does not have jurisdiction;
(7) The county is an improper place of trial;
(8) The charge does not state an offense;
(9) The indictment is based solely upon the testimony of an incompetent witness;
(10) The defendant is misnamed in the charge and the misnomer results in substantial injustice to the defendant^]
(11) The requirements of Section 109 — 3.1 have not been complied "with.” (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1.)

Otherwise, the court may only dismiss charges when there has been a clear denial of due process which prejudices a defendant. (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) When the sufficiency of the charge is challenged in a pretrial motion, the standard of review is to determine whether the charge complies with section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3), which requires that the charge be in writing and state the name of the offense, the statutory provision allegedly violated, the name of the accused and the date and county of the offense, and set forth the nature and elements of the offense. If the charge meets these criteria, it should not be dismissed. (People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285.) Therefore, based on our review of the information filed in this case, it would not have been dismissed by a trial judge. The information properly advised Williams of the nature of the offense and met the statutory requirements so that Williams had an adequate opportunity to prepare his defense.

Errors in judgment or trial strategy, standing alone, do not establish incompetency. (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677, 685.) A defendant is entitled to competent, not perfect or successful representation. (People v. Torres (1973), 54 Ill. 2d 384, 391, 297 N.E.2d 142.) There is a strong presumption that counsel’s conduct and decision making falls within the wide range of professional assistance. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) To prevail on a claim of ineffective assistance of counsel, a defendant must show that there was a reasonable probability that but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

There is no indication from our review of the record that Williams did not receive a fair trial from the trial court. In addition, any indirect allegation of judicial prejudice is unfounded based on the record. Finally, if this matter proceeded in a different fashion, i.e., before a jury and different judge, and if counsel sought dismissal of the indictment, there is no indication, nor can we speculate, that the eventual result would have ultimately been different. Williams was clearly aware that his counsel waived a jury trial and openly acknowledged the waiver in open court. For the foregoing reasons, we cannot agree that Williams received ineffective assistance of counsel.

For the reasons indicated, the circuit court of McDonough County is affirmed.

Affirmed.

BARRY, P.J., concurs.

JUSTICE STOUDER,

dissenting:

I must respectfully dissent.

My concern relates to the issue whether the complainant should have been allowed to testify as to what effect the incident had on her. The complainant testified as to certain post-event traumatic effects of the alleged sexual assault. Included among the various effects the incident had on her, the complainant referred to going to a rape treatment group and obtaining psychiatric counseling. Such testimony, in my estimation, is highly prejudicial and should only be allowed into evidence when supported by the testimony of a qualified expert on rape trauma syndrome. I emphasize that my concern is limited to whether testimony regarding an alleged victim receiving psychiatric counseling should be allowed at trial without subsequent corroborative testimony from the treating psychiatrist.

Section 115 — 7.2 of the Code of Criminal Procedure of 1963 provides that in a prosecution for an illegal sexual act perpetrated upon a victim “testimony by an expert, qualified by the court relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence.” (Ill. Rev. Stat. 1989, ch. 38, par. 115— 7.2.) The court in the instant case seems to casually brush aside this requirement by noting that in People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335, the court did not hold that the victim could not testify about the adverse effects of the incident. This is true; however, the State in Douglas presented the testimony of a rape trauma syndrome expert who concluded the complainant’s testimony regarding adverse effects of the incident were consistent with symptoms suffered by someone suffering from rape trauma syndrome. Indeed, the issue in Douglas was whether the expert should be barred from being considered an expert on rape trauma syndrome due to her lack of a formal psychology degree.

I am also concerned about the complainant’s testimony that she had received psychiatric counseling subsequent to the incident. In People v. Jackson (1990), 203 Ill. App. 3d 1, 560 N.E.2d 1019, the court was faced with similar testimony regarding post-event traumatic effects. In Jackson, the complainant’s mother testified that following the incident the complainant: (1) had become scared of her own house; (2) would follow her mother to every room in the house, including the bathroom; and (3) was restless at night and thought she heard the defendant breathing in her bedroom. The court did not find the mother’s testimony to be prejudicial and in contrast cited two cases, People v. Fuelner (1982), 104 Ill. App. 3d 340, 432 N.E.2d 986, and People v. Gillman (1980), 91 Ill. App. 3d 53, 414 N.E.2d 240, wherein the courts held that the defendants were prejudiced by the admission of testimony regarding the psychiatric treatment the victims received after the incidents. Indeed, the court in Jackson emphasized that the trial court acted properly in keeping from the jury any information regarding psychiatric treatment of the victim after the incident. 203 Ill. App. 3d at 14, 560 N.E.2d at 1027.

In the instant case, consistent with the holding in Jackson, the trial court erred in allowing the complainant to testify concerning the rape treatment group and to her receiving psychiatric care. As the aforementioned cases point out, such testimony is highly prejudicial and has only recently been allowed into evidence for the limited purpose of establishing a diagnosis of rape trauma syndrome by a qualified expert witness on that subject. The State in the instant case should have presented the testimony of an expert witness on rape trauma syndrome in order to connect the complainant’s testimony regarding post-incident effects, including her having to seek psychiatric care, with the somewhat accepted psychological disorder. In any case, the court’s reliance on the Douglas case under the circumstances presented herein is misplaced.

I must respectfully dissent.