author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA PETERS, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—1561
    Opinion filed December 26, 1991.

      Walsh, Neville, Pappas & Mahoney, of Chicago (Matthew P. Walsh and J. Mark Lukanich, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Maureen A. Hartón, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a bench trial, the defendant, Barbara Peters, was found guilty of murder, aggravated battery of a child, cruelty to a child, and endangering the life of a child under a theory of accountability. Judgment was entered on the three murder counts, the court finding that all of the other counts merged into the murder counts. The defendant was sentenced to a 30-year term of imprisonment.

In her appeal, the defendant contends that she was not proved guilty of murder beyond a reasonable doubt because the State failed to prove that she could be held accountable for her son’s murder when she was not present at the time he was murdered by her boyfriend and did not perform any act specifically intending to facilitate his murder. Additionally, the defendant contends that even if the defendant can be deemed criminally liable for the death of her son, the defendant’s conduct amounted to a conscious disregard of an unjustifiable risk and her conviction should be reduced to involuntary manslaughter. The defendant also contends that the trial court erred in allowing the medical examiner to state opinions at trial that were beyond her expertise and without factual basis.

At 6:42 a.m. on December 17, 1987, 20-month-old Bobby Peters was brought to the emergency room at LaGrange Memorial Hospital by the defendant, his mother, and the codefendant, Kenneth Ja-cobsen, who had been the defendant’s boyfriend for six months. The emergency room staff was unsuccessful in its attempts to resuscitate Bobby, and he was pronounced dead at 6:47 a.m. The autopsy report stated that Bobby Peters died as a result of bilateral sub-dural hematomas which resulted from blunt head trauma.

The defendant and Jacobsen were charged in a 19-count indictment with the offenses of first degree murder, aggravated battery to a child, cruelty to a child, and endangering the life or health of a child. Their cases were severed prior to trial.

At trial, Bobby’s former baby-sitter, Karen Wagner, testified for the State. Wagner met the defendant in January 1987 at the bowling alley in Countryside, where they were both employed as waitresses. They became friends, and in April 1987, Wagner began baby-sitting four or five times a week for Bobby, who was then a year old.

The first time that Wagner noticed anything peculiar regarding Bobby’s physical condition was in early July 1987. The defendant had begun dating Kenneth Jacobsen the previous month. Wagner testified that Bobby had a diaper rash that was “red, raw, dry and it was cracking.” She telephoned the defendant’s father to obtain the name of their pediatrician, who prescribed an ointment.

Toward the end of July 1987, Wagner was again baby-sitting and while changing Bobby’s diaper, noticed a bruise that covered his entire buttocks. Wagner testified that she questioned the defendant about the bruise, and the defendant said she thought Bobby had fallen at Wagner’s home. Bobby was learning how to walk at the time, but Wagner testified that Bobby had never bruised himself to that extent any time he had fallen in her home.

In early August 1987, when Bobby came to Wagner’s home, he had small bruises on his cheeks, on his chin, and on his forehead. Wagner testified that Jacobsen told her that Bobby had fallen off the ladder of a slide. Wagner, however, did not observe any dirt or blood on Bobby’s clothes at the time. The defendant asked Wagner about the bruises and Wagner told her what Jacobsen had said. The defendant did not respond.

Later in August 1987, Jacobsen brought Bobby over to Wagner’s home and Bobby had four or five “bumpy-like welts” scattered around the center of his back. Jacobsen told Wagner that Bobby had fallen down an elevator shaft.

In the beginning of September 1987, Bobby came to Wagner’s home with a split on the inside and outside of his lower lip. The defendant told Wagner that Bobby had fallen on the sidewalk.

By this time, Jacobsen and the defendant were living together and Wagner baby-sat on weekends and Jacobsen watched Bobby during the week. Wagner stated that in October 1987, she invited Bobby to her home for her husband’s and son’s birthday party. The defendant brought Bobby to Wagner’s home dressed in his pajamas. When Wagner later changed Bobby’s diaper, she observed that the pajama was stuck to the back of his leg. Upon removing the pajama, Wagner testified that she saw an oval-shaped burn which measured about two to three inches in diameter running across Bobby’s calf. Wagner stated that the skin on Bobby’s leg was “raw and pussy.” Since the defendant had not mentioned anything about the burn, Wagner telephoned the defendant at work and asked her how Bobby received the burn. Wagner stated the defendant told her the burn was caused from Bobby’s clothes rubbing on the back of his leg. Wagner testified that during the time that Bobby had been in her care and worn slacks, she had never noticed a similar injury.

One week before Halloween, Wagner had a telephone conversation with the defendant in which the defendant told her that Jacob-sen had taken Bobby to the hospital because he had incurred another burn. The defendant told Wagner that Jacobsen had tripped over Bobby and spilled hot tea on the back of Bobby’s head and neck. Wagner testified that the defendant told her they were going to arrest Jacobsen for child abuse and the hospital was going to press charges against him.

The following day Wagner saw Bobby and described him as “walking stiff.” Wagner stated that Bobby could not move his head from side to side. When Wagner removed his shirt, she observed that the burn went “from the top of his scalp down his neck and one shoulder,” and “was very raw, very pussy, [and] his undershirt was stuck to it.”

On October 31, 1987, Wagner contacted the Department of Children and Family Services (DCFS) hotline and told them of Bobby’s bruises and burns. She told DCFS that in her opinion, Bobby was being abused.

The following day, the defendant telephoned Wagner and told her that DCFS had contacted her and that an appointment had been scheduled for the following day. Wagner denied having contacted DCFS. The next day, Wagner testified, she telephoned the defendant to inquire about what happened at the appointment with DCFS. Wagner stated the defendant hung up on her. The defendant subsequently refused to speak to Wagner and never asked Wagner to baby-sit for Bobby again.

Wagner did not see Bobby until the end of November 1987. Wagner ran into the defendant at the bowling alley, and the defendant allowed Wagner to take Bobby to Wagner’s home for several hours. Wagner testified that during her visit with Bobby, she did not notice any other fresh injuries on Bobby and stated that the burn was healing.

The last time that Wagner saw Bobby was on December 8, 1987, at the bowling alley. Wagner asked the defendant’s permission to see Bobby for Christmas and the defendant refused. The defendant told Wagner that Jacobsen did not want either the defendant or Bobby to have anything to do with Wagner.

On cross-examination, Wagner testified that the defendant told her that she did not want Bobby and that Bobby was a burden. Wagner believed that Bobby loved his mother but that the defendant did not love Bobby “the way a mother should love a child.” Wagner observed that when Jacobsen came to pick up Bobby from her home, Bobby would grab Wagner or her husband and start crying.

Bemadine Peters, Bobby’s paternal grandmother, testified for the State. The first time Peters ever saw her grandson was August 1987. Her next visit with Bobby was in early September 1987. Peters testified that on both of these occasions, she did not notice any bruises on Bobby when she changed his diapers.

Peters testified that later in September 1987, Bobby was at her home because Dale Peters, her son and Bobby’s father, was babysitting. Peters testified that when she was changing Bobby’s diapers, he was “very stiff and frightened.” At this time, she observed black and blue marks on Bobby’s chest, ankles, and buttocks. Peters stated that there were many bruises “about the size of a finger. And the butt was just almost completely covered *** [w]ith black and blue marks.” Peters stated that in her opinion, Bobby was not an easy bruiser.

Peters saw Bobby again toward the end of November 1987 and testified that she did not remember seeing any bruises at that time.

Dr. Nancy Jones, the forensic pathologist who performed the autopsy, testified to the contents of Bobby’s pediatric records. Dr. Jones stated that according to the growth chart in Bobby’s records and the pediatrician’s own private notes, Bobby was growing and developing normally until June 1987, when he was about 15 months old. Dr. Jones stated the records showed that at 15 months, Bobby had a “sudden, rather precipitous drop off [in] his weight and his length.” Dr. Jones testified that at 15 months Bobby weighed 21 pounds, whereas at the time of autopsy Bobby was 20 months old and weighed 19 pounds.

Dr. Jones stated that the pediatrician’s records also showed that Bobby had developed a heart murmur at approximately the same time that the weight loss began. Dr. Jones testified there was no evidence of any heart defect on autopsy to explain the heart murmur.

On December 18, 1987, Dr. Jones performed the autopsy on Bobby’s body. Dr. Jones testified that since July 1986, she had conducted 1,500 autopsies and over 200 of them had been performed on children under the age of two.

Dr. Jones testified that Bobby died as a result of bilateral, sub-dural hematoma which resulted from blunt head trauma. Dr. Jones stated that based upon the autopsy, the constellation of injuries, the varying ages of the injuries, and Bobby’s pediatrician’s records, Bobby’s physical condition at the time of autopsy was “the direct result of on-going abuse.” Dr. Jones further testified that Bobby had been battered enough to produce bruises that were at least a week old, and maybe more. It was Dr. Jones’ opinion that the abuse dated back to, approximately, June 1987, when Bobby was 15 months of age. Dr. Jones indicated on Bobby’s death certificate that the injuries were intentional and not the result of accidental acts.

Dr. Jones stated that her exterior examination revealed that Bobby was underdeveloped for his age, significantly shorter and underweight. Dr. Jones described the exterior of Bobby’s body as having a large number of bruises which were distributed over his head, trunk, and upper and lower extremities.

Dr. Jones explained that bruises go through various color changes during the one- to two-week healing period. From the coloration of a bruise, one can evaluate the age of the bruise and the approximate time that has elapsed since the injury which resulted in the bruise.

Dr. Jones described bruises with varying colorations on Bobby’s body, extending all along the right and left side of his face, both of his arms, both of his hands, his chest, the tops of his feet, on his back, and on his buttocks. Dr. Jones further explained that on autopsy, the physician can determine the depth of the bruises by observing how far the bruise extends into the subcutaneous fat under the surface of the skin. The deeper the bruise goes into the subcutaneous fat, the greater the force which was used to cause the injury.

Her internal examination revealed a large area of hemorrhage, containing 16 grams of clotted blood, under the surface of Bobby’s scalp on both the right and left side of Bobby’s head. Dr. Jones testified that Bobby’s brain was very swollen and explained that this is the way the brain reacts to injury. Dr. Jones’ internal examination of Bobby’s body also showed two inches of hemorrhaging in the abdominal cavity area and two additional hemorrhages in the tongue which were consistent with bite marks. In total, Dr. Jones’ internal examination revealed 45 different areas of bruising on Bobby’s body

Dr. Jones stated that based on the color of the bruises, the bruises on the right and left side of Bobby’s face and the bruises on the back of his hands would have definitely been visible on December 16, the day before Bobby died. There was nothing in Bobby’s records to indicate that he had any underlying illnesses or bleeding problems which would substantiate that Bobby was an “easy bruiser.” Dr. Jones testified the bruising on Bobby’s left forearm, the back of his right forearm, on his buttocks, and on his right and left feet went down into his subcutaneous tissue.

Investigator Baldwin, a detective with the Cook County sheriff’s police, testified for the State regarding the conversation he had with the defendant following Bobby’s death. Baldwin stated the defendant told him that the last time she saw Bobby alive was on December 16, 1987. The defendant left her home at 6:30 p.m. to go drinking with one of her girl friends. The defendant returned home three hours later. Jacobsen had put Bobby to bed and the defendant did not look in on him that night. When the defendant awoke on December 17, Jacobsen told her that they had to take Bobby to the hospital because Bobby had turned blue.

The defendant told Baldwin that she had been living with Jacob-sen since September 1987. The defendant explained that when she worked, she would routinely leave Bobby in the custody of Jacob-sen. The defendant told the investigator that when she came home from work and saw all of Bobby’s bruises and the injuries to his body, she accepted Jacobsen’s explanation that Bobby was just clumsy and was prone to falling down and inflicting injury on himself. The defendant told Baldwin she never thought Bobby’s injuries were very serious and she did not feel that the injuries warranted taking Bobby to the hospital. The defendant explained that she did not take Bobby to the hospital for his burns because Jacobsen had told her that he had gone to LaGrange Memorial Hospital and had obtained a jar of salve. Baldwin testified that he personally checked into Bobby’s purported visit to LaGrange Hospital and discovered that Bobby had, in fact, never been taken there for his burn.

Baldwin stated that when he told the defendant the medical examiner had determined that Bobby’s death was the result of a homicide, the defendant just shrugged her shoulders and gave him a look as if it did not matter. The defendant told Baldwin that she had not really wanted the boy. When Baldwin asked her whether she did not really care what happened to Bobby, the defendant responded, “I guess not.” When Baldwin asked her how she thought Bobby died, the defendant responded that she thought Jacobsen was responsible for his death.

In contrast, the defendant also told Baldwin she loved Bobby and that she would never allow someone to abuse the boy or to deliberately hurt him.

Linda Norcutt, the outpatient registrar at LaGrange Memorial Hospital, was working in the emergency room on the morning of December 17, 1987. Norcutt testified that at 6:42 a.m., the defendant and Jacobsen brought Bobby into the emergency room. Norcutt testified that at that time, she overheard the defendant say to Kenneth Jacobsen, “I told you not to get so angry, I told you not to get so angry, I told [you] this would happen.” Norcutt stated that Jacobsen responded, “Shush, shush, and to go sit down.”

Susan Siorek, a registered nurse at LaGrange Memorial Hospital, testified that at 6:42 a.m., a gentleman came in with a child that was not breathing. Siorek described Bobby as “very pale, very cold, very thin, and emaciated, unkept and he also was covered with bruises.” Siorek testified that the bruises were in various stages of healing and ranged in color from yellowish-green to red-purplish.

Photographs of Bobby’s body were admitted into evidence, and Siorek described the bruises which were present. Beginning with Bobby’s face, Siorek testified that her examination revealed massive bruising around the face as well as swelling to the forehead. The photographs showed bruising all along the left side of Bobby’s eye and cheekbone, at the temple, and extensive bruising along the jawline. Other photographs illustrated bruises along the front of Bobby’s forehead, along Bobby’s right and left eyebrows, and along the bridge of his nose. Photographs of the front side of Bobby’s body showed bruising in the chest area. Photos of Bobby’s left arm showed extensive bruising all along the fingers of the left hand, as well as bruising to the wrist, and up into the left arm and elbow. Photos of Bobby’s right arm revealed bruises along all of the fingers of the right hand extending up to the top of the hand, as well as bruises along the top of the right arm.

Other photographs illustrated bruising all along the top of both of Bobby’s feet and what Siorek described as “[fjairly new bruising” all along the top of the toes on both feet.

Finally, other photos displayed bruising to the left shoulder and down along the spinal column. Various other bruises were present along Bobby’s back and on his buttocks.

The testimony of Dr. Carol Haller, an associate pathologist at Illinois Masonic Hospital and consultant for the Cook County medical examiner’s office, was stipulated to by the State and the defense. Dr. Haller would have testified that she had studied over 300 head injuries in children under the age of two. After having examined Bobby’s brain and its coverings, Dr. Haller opined that in order to cause the head injury which Bobby sustained, “It would take a force that would be something like that received in a motor vehicle accident. Or it would take force from a considerable height, let’s say three stories or above.”

Dr. Haller believed that to sustain the type of head injury which Bobby presented, his head would have to have been forcibly smashed against a table top, countertop, or wall. If Bobby’s head injury was caused by an object coming into contact with his head, it would have been something like a baseball bat, a heavy stick, or a club. In her opinion, the injury was not consistent with Kenneth Ja-cobsen’s explanation that Bobby had fallen down the stairs onto the sidewalk.

Finally, the 31-year-old defendant, Barbara Peters, testified that Bobby was not a planned child. She financially supported both Bobby and Jacobsen and worked from 5 p.m. to midnight during the week and bartended on weekends. During the time she was working, Jacobsen watched Bobby. The defendant stated that she trusted Jacobsen with Bobby and felt Bobby was safe with him. The defendant had seen Jacobsen use cocaine once or twice around December of 1987.

The defendant testified she never saw Jacobsen abuse Bobby and she never willfully caused or permitted Jacobsen to abuse Bobby. Peters stated she never saw Jacobsen hit or strike Bobby. Jacobsen never struck her. She never saw Jacobsen get angry with Bobby. She never saw Jacobsen reprimand Bobby.

The defendant stated she knew about the burn on Bobby’s back. However, the defendant explained that Jacobsen told her he had spilled tea on Bobby’s back and he had taken Bobby to the emergency room. The defendant stated she did not come home from work when she learned of Bobby’s burn, but when she later came home, Bobby was asleep. The defendant did not see the burn until the following day.

The defendant testified that, on occasion, she saw bruises on Bobby. However, the defendant stated that Bobby was small for his age and clumsy. In her words, “[Bobby] didn’t walk too good. He would fall down a lot.” The defendant stated that since Bobby bruised easily, she was not alarmed when she saw bruises. She was never suspicious of any injuries that Bobby sustained. Every time she noticed a bruise, Jacobsen would tell her that Bobby had fallen.

The defendant testified that in November of 1987, she saw Ja-cobsen throw a chunk of ice at Bobby that hit him in the head. The defendant told Jacobsen to be careful because Bobby would get whiplash.

The defendant stated that the last time she saw Bobby alive was on December 16, 1987. She testified that she was with Bobby all day but she never changed his diapers or pajamas. She stated that she had not given Bobby a bath or changed his diapers for three weeks before Bobby died. The defendant only saw Bobby fully dressed.

The defendant stated that when they discovered on December 17, 1987, that Bobby was blue, neither she nor Jacobsen called an ambulance. Rather, the defendant and Jacobsen drove Bobby to La-Grange Memorial Hospital.

On cross-examination, the defendant admitted that she did see Bobby’s face during the three-week period, but said that Bobby always had a bruise on his face. When she was shown a photograph of Bobby’s bruised face, the defendant stated that on December 16 she did not see “that many” bruises on Bobby’s face, and the bruises were “[n]ot that big.”

The defendant also admitted that she had seen the bruises on Bobby’s hand that were depicted in the photograph. However, the defendant stated that Jacobsen told her that Bobby was playing in his room, and the crib fell on his fingers.

The defendant was questioned about her knowledge of Bobby’s weight loss. The defendant testified that on July 20, 1987, and on August 11, 1987, the pediatrician told her that Bobby’s growth parameters were declining. The defendant stated that she canceled Bobby’s follow-up appointments with the pediatrician. The defendant testified she canceled Bobby’s November 10, 1987, follow-up appointment because she was feeling sick. She canceled her November 24, 1987, appointment because her car would not start. The defendant testified that August 11, 1987, was the last time she took Bobby to the pediatrician.

The defendant admitted that she told Detective Baldwin she believed Jacobsen was responsible for Bobby’s death, and that she may have been negligent at times in leaving Bobby with Jacobsen.

The defendant was found guilty of murder by reason of accountability. The accountability statute provides:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1985, ch. 38, par. 5—2(c).

Generally, a person will not face criminal liability for failing to aid another. However, the common law has carved out an exception in the case of a parent-child relationship. Custodial parents have an affirmative duty to protect and provide for their minor children. (People ex rel. O’Connell v. Turner (1870), 55 Ill. 280; People v. Bernard (1986), 149 Ill. App. 3d 684, 500 N.E.2d 1074; W. La-Fave & A. Scott, Substantive Criminal Law §3.3 (1986).) A parent who knowingly fails to protect his or her child from abuse may be prosecuted under the accountability statute and, thereby, becomes legally accountable for the conduct of the abuser.

The accountability statute mandates that the person charged must have the intent to promote or facilitate the offense. Intent may be gleaned from knowledge. A person who knows that his or her child is in a dangerous situation and fails to take action to protect the child presumably intends the consequences of the inaction. In the context of the instant case, the defendant intended to facilitate the offense.

The evidence supports the trial court’s finding that, beyond a reasonable doubt, the defendant intended to facilitate the offense because she knew that Jacobsen was abusing her son. Upon becoming aware of the abuse to Bobby, the defendant, as his mother, had a duty to protect her son from further abuse. By knowingly failing to remove Bobby from an abusive and dangerous environment, the defendant, aware of the consequences of her inaction, facilitated further harm to Bobby. The defendant aided Jacobsen, who continued to abuse and, ultimately, murder her son by failing to protect him during the many occasions when it was reasonably possible for her to do so.

The evidence in the record which supports the defendant’s knowledge of the abuse to her son is ample. During the five-month period of time in which the defendant was either dating or living with Jacobsen, Karen Wagner discussed six different injuries to Bobby with the defendant. These injuries ranged from bruises to welts and extensive burns. The explanations which Jacobsen or the defendant gave Wagner for the cause of the injuries were often inconsistent with the type of injury sustained. Wagner ultimately contacted DCFS. The defendant’s response was to fire Wagner.

Also during the time the defendant was dating Jacobsen, she was told by Bobby’s pediatrician that Bobby was losing weight, had stopped growing, and had developed a heart murmur. The defendant’s response was to cancel three subsequently scheduled appointments with the pediatrician and to never take Bobby back to the doctor.

The medical findings revealed that Bobby died from a blunt head trauma and that the force required to cause the injury to Bobby’s brain would have been similar to the impact of an automobile accident or falling from a height of at least three stories.

The medical testimony described that Bobby’s physical condition at the time of the autopsy was the result of intentional, on-going abuse. Bobby’s body was covered with 45 areas of bruising, and many of the bruises were at least a week old. At a minimum, the extensive bruises on Bobby’s face and hands were visible when the defendant saw Bobby the day before he was murdered.

The defendant’s statement to Jacobsen at the emergency room further illustrated her awareness of previous abuse and her knowledge of the dangerous environment in which she allowed her child to remain. In spite of her repeated assertions that she lacked knowledge of the abuse, the defendant told the investigator that she believed Jacobsen was responsible for Bobby’s death.

The evidence also demonstrates that during the time of her relationship with Jacobsen, the defendant took no action to protect her son despite numerous opportunities to do so. The defendant did not seek medical help for Bobby, she did not contact the authorities, and she did not remove Bobby from Jacobsen’s care. To the contrary, the defendant corroborated Jacobsen’s explanations for the injuries to Wagner, ignored visible bruises on Bobby’s body, and continued to turn over the complete care of Bobby to Jacobsen.

For all of the above reasons, we believe that the evidence supports the trial court’s finding that, beyond a reasonable doubt, the defendant knew of the on-going abuse to her son and failed to take any action to protect him. The evidence also supports a finding that the defendant intended by her actions to facilitate further abuse to her son and aided Jacobsen in the commission of that abuse.

The defendant contends that she was not proved guilty of murder beyond a reasonable doubt under a theory of accountability because she was not present during any of the abuse to Bobby or at the time of his murder. The defendant further argues that she did not participate in the infliction of any of the injuries to Bobby.

Evidence that a defendant was present at the commission of an offense, without disapproving or opposing it, is often considered in connection with other circumstances to reach the conclusion that a defendant aided in the commission of a crime. (People v. Cole (1977), 50 Ill. App. 3d 133, 365 N.E.2d 133, cert. denied (1978), 435 U.S. 944, 55 L. Ed. 2d 541, 98 S. Ct. 1526.) In other words, the defendant’s presence at the actual scene of the crime is one factor which a trier of fact may consider to determine whether the defendant can be held accountable as an abettor. However, a defendant can be found to have aided and abetted without actively participating in the overt act. (People v. Clark (1963), 30 Ill. 2d 67, 195 N.E.2d 157.) By furthering a common purpose, a defendant becomes criminally liable for wrongdoings committed by a codefendant, even though he did not participate in the overt act itself. People v. Morgan (1977), 67 Ill. 2d 1, 364 N.E.2d 56, cert. denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411.

Neither the language of the accountability statute, nor the cases interpreting the statute, mandate that a defendant must be present or must actively participate in the offense in order to be held accountable. The defendant’s purported absence during the infliction of abuse to Bobby or his murder was only one piece of evidence which the trial court considered in its determination of the defendant’s knowledge of the abuse. As we have already described in detail, there was sufficient other evidence upon which the trial court properly based its finding of the defendant’s accountability.

Finally, the defendant contends that she cannot be held accountable for Bobby’s murder because she did not “specifically intend to facilitate” Bobby’s abuse. We first note that the language of the accountability statute requires that the defendant aid in the commission of an offense “with the intent to promote or facilitate such commission.” (Ill. Rev. Stat. 1985, ch. 38, par. 5—2(c).) Contrary to the defendant’s contention, there is no requirement of specific intent in the statute.

The defendant relies upon language from People v. Ware (1980), 82 Ill. App. 3d 297, 402 N.E.2d 762, and People v. Hoskins (1990), 203 Ill. App. 3d 45, 560 N.E.2d 1004. However, both Ware and Hoskins are distinguishable from the case at bar. In Ware, the appellate court reversed the trial court’s finding of accountability because the circumstantial evidence was insufficient to link the defendant with two murders committed by his roommate. (Ware, 82 Ill. App. 3d at 307, 402 N.E.2d at 769.) The court found that the evidence did not establish, beyond a reasonable doubt, that the murders were committed by two people, that the defendant was present at the time of the murders, or that the defendant agreed to participate, or aided the defendant in the commission of the offense. Ware, 82 Ill. App. 3d at 306, 402 N.E.2d at 769.

Similarly, in Hoskins, the appellate court reversed the trial court’s finding of accountability for aggravated criminal sexual assault committed by the codefendant. (Hoskins, 203 Ill. App. 3d at 54, 560 N.E.2d at 1010.) The court reasoned that the defendant was not present at the time the victim was sexually assaulted by the codefendant and the evidence failed to establish a “common plan or scheme” between the defendant and the codefendant that the codefendant would sexually assault the victim prior to the defendant’s arrival at the scene. Hoskins, 203 Ill. App. 3d at 54, 560 N.E.2d at 1010.

In both cases, the appellate court reversed the trial courts’ finding of accountability because there was insufficient evidence in the record to support a finding that the defendants aided in the commission of the offenses. The case at bar is more analogous to People v. Ray (1979), 80 Ill. App. 3d 151, 399 N.E.2d 977, in which the appellate court upheld the trial court’s conviction of a mother for the murder of her 17-month-old daughter by her boyfriend under a theory of accountability. While the mother in Ray was present during the abuse to her child, and on one occasion had beaten the child herself, the court stated:

“Even in the absence of any evidence that defendant committed an overt act, the trier of fact could still have found her accountable for the actions of [the codefendant] where uncontra-dicted evidence established her continued close association with [the codefendant] and her failure to report to authorities any of the incidents of [the codefendant’s] abuse of [her daughter]. The foregoing was evidence that defendant shared the common purpose of [the codefendant] and was sufficient to sustain her conviction for the acts of [the codefendant].” (Ray, 80 Ill. App. 3d at 156, 399 N.E.2d at 981.)

As we have discussed at length earlier in this opinion, the evidence in the instant case similarly supports the trial court’s decision to sustain the defendant’s conviction for the acts of Jacobsen.

The defendant next argues that since the defendant lacked the intent to facilitate Bobby’s abuse, her conviction must be based upon her own conduct which, at worst, would result in an involuntary manslaughter conviction. As we have already determined that the evidence supports a finding of the defendant’s intent to facilitate the abuse of her son, this argument is without merit.

The defendant further alleges that the trial court committed reversible error by allowing Dr. Jones, the medical examiner, to testify that Bobby’s physical condition at the time of autopsy was the direct result of on-going abuse and that his injuries were the result of intentional acts. The defendant contends that Dr. Jones’ opinions were beyond the scope of her expertise and without factual basis.

We believe that Dr. Jones’ testimony was proper. Dr. Jones was a forensic pathologist and board certified in anatomic, clinical, and forensic pathology. Having conducted over 1,500 autopsies, more than 200 on children under the age of two years, Dr. Jones was competent to render an opinion on the question of whether Bobby’s injuries were the result of intentional, on-going abuse.

Moreover, contrary to the defendant’s contention that Dr. Jones’ opinion lacked factual basis, the record reflects that Dr. Jones based her opinion that Bobby was a victim of on-going abuse on her own external and internal observations of Bobby’s body on autopsy, as well as the pediatrician’s records. The extensive bruising, the varying coloration of the bruises, the depth of bruising into the subcutaneous tissue, the weight loss and growth retardation were all factual support for Dr. Jones’ opinion.5

Finally, the State agrees with the defendant’s contention that the trial court erred in entering judgments and imposing sentences on three counts of murder. Accordingly, we vacate the judgments and sentences which were imposed on counts IV and V of the indictments.

Affirmed in part; vacated in part.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    PAT GORDON et al., Plaintiffs-Appellees, v. EDWARD BODEN, SR., et al., Defendants (Edward Boden, Sr., et al., Defendants-Appellants).
    First District (4th Division)
    Nos. 1—90—3609, 1—90—3610 cons.
    Opinion filed December 26, 1991.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Harold C. Wheeler and Kathleen M. Dillon, of counsel), for appellant Bodine’s, Inc.
    Righeimer, Martin & Cinquino, RC., of Chicago (David A. Martin and Sandra L. Hebenstreit, of counsel), for appellants Edward Boden, Sr., and Edward Boden, Jr.

      Daniel A. Edelman and Lawrence Walner & Associates, Ltd., both of Chicago (Lawrence Walner, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs Pat Gordon, Sam Gordon, Catherine Thomas, and other named plaintiffs brought a class action in the circuit court of Cook County. Plaintiffs represent a nationwide class of consumers who bought adulterated orange juice products that were processed by defendant Bodine’s, Inc. Bodine’s corporate officers were defendants Edward Boden, Sr., and Edward Boden, Jr.

The trial court granted plaintiffs’ motion for class certification. The court also certified a question for review that pertains to the assessment and distribution of damages among class members.

We affirm the order of the trial court in all respects.

Background

The record shows that in July 1989, the Bodens and Roger Walsh, Jr., were charged in a multicount Federal indictment with selling adulterated food. As part of a plea agreement, they pled guilty to some of the charges. On February 27, 1990, the United States District Court for the Northern District of Illinois sentenced each of the Bodens to a prison term, a fine, and community service. (Walsh was sentenced the preceding week.)

On the day that the Bodens were sentenced in Federal court, plaintiffs filed their third amended complaint in Cook County circuit court. The pleading alleged as follows. Until 1985, Bodine’s, Inc. (now known as McCain’s OJ), was the largest processor of frozen orange juice in the Midwest. Bodine’s corporate officers were the Bodens and Walsh. Defendants processed orange juice products, i.e., 100% orange juice, orange juice from concentrate, and frozen orange juice.

Between 1978 and 1985, defendants adulterated these orange juice products “with up to 40% beet sugar, corn sugar, monosodium glutamate, and other low-cost inferior ingredients.” Despite the adulteration, defendants knowingly affixed false labels to its product containers, representing that the products were processed from 100% orange juice. The complaint also named as defendants several retail grocery chains that bought the adulterated orange juice products from Bodine’s and resold them to consumers. Plaintiffs also alleged that defendants intentionally concealed the adulteration from consumers.

Based on the foregoing acts, plaintiffs’ six-count complaint sought damages under the following theories: breach of express warranty and implied warranty of merchantability (see Ill. Rev. Stat. 1989, ch. 26, pars. 2—313, 2—314), statutory fraud (see Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.), common law fraud, and violation of the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (see 18 U.S.C. §1961 et seq. (1988)).

On December 7, 1990, the trial court entered an order pertaining to several matters in the litigation. The court dismissed from the action the retail grocery chains. The court certified the following class:

“All persons in the United States who purchased at retail adulterated orange juice products manufactured or sold by Bodines, Inc., other than the defendants. The defendants remaining in the case are Edward Boden, Sr., Edward Boden, Jr., and Bodines, Inc.”

The trial court also certified the following question for review:

“[WJhether what is commonly known as ‘fluid recovery’ (various mechanisms involving the assessment of damages to the class as a whole followed by its distribution in the manner most likely to result in benefit to the injured population) is permissible in a class action in Illinois.”

The court found that the use of fluid recovery would substantially facilitate and expedite the litigation. The court also found that “the recoveries of hundreds of thousands or millions of class members” would likely be defeated if the procedure were not permissible. We granted leave to appeal. See 134 Ill. 2d R. 308.

Opinion

I

The parties initially disagree as to this court’s scope of review. Plaintiffs contend that we must restrict our review solely to the precise question certified by the trial court. Defendants, however, contend that we may review the trial court’s order granting class certification. It is true that a reviewing court generally should limit an interlocutory appeal under Supreme Court Rule 308 (134 Ill. 2d R. 308) to the question certified by the trial court. (People v. Pollution Control Board (1984), 129 Ill. App. 3d 958, 965, 473 N.E.2d 452, 456-57.) However, it is settled that a trial court may use Rule 308 as a means of reviewing an order granting class certification at an early stage of the litigation. Frank v. Teachers Insurance & An nuity Association of America (1978), 71 Ill. 2d 583, 590-91, 376 N.E.2d 1377, 1379-80.

In the case at bar, we conclude that the certified question, which pertains to the assessment and distribution of damages among class members in general, necessarily includes the question of the propriety of the class certification in the present case. We cannot neatly compartmentalize and independently resolve one issue and not the other. (See Frank, 71 Ill. 2d at 592, 376 N.E.2d at 1380.) Therefore, we will answer the certified question in the course of reviewing the class certification.

II

Section 2 — 801 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—801), formerly section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2), governs class actions in Illinois. For an action to be maintained as a class action, a trial court must find four prerequisites: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of fact or law common to the class which predominate over any questions affecting only individual members; (3) the representative parties will fairly and adequately protect the interest of the class; and (4) the class action is an appropriate method for the fair and efficient adjudication of the controversy. Ill. Rev. Stat. 1989, ch. 110, par. 2—801.

The class action statute essentially codifies Illinois case law. (Hoover v. May Department Stores Co. (1978), 62 Ill. App. 3d 106, 114, 378 N.E.2d 762, 769, rev’d on other grounds (1979), 77 Ill. 2d 93, 395 N.E.2d 541; K. Forde, Illinois’s New Class Action Statute, 59 Chi. Bar Rec. 120, 135 (1977).) Thus, a court may seek guidance in pertinent cases decided prior to the statute’s enactment. (Eshaghi v. Hanley Dawson Cadillac Co. (1991), 214 Ill. App. 3d 995, 999-1000, 574 N.E.2d 760, 763.) However, it must be remembered that “[w]ith the advent of the statute many of the prior decisions have become corpses.” Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 338, 371 N.E.2d 634, 643.

In deciding whether to certify a class, a court may consider “any matters of fact or law properly presented by the record, including the pleadings, depositions, affidavits, answers to interrogatories and any evidence that may have been adduced at hearings.” (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1985), 137 Ill. App. 3d 84, 100, 484 N.E.2d 349, 360-61, aff’d (1986), 114 Ill. 2d 278, 499 N.E.2d 1319.) Certification of a class is within the sound discretion of the trial court and will be disturbed only if there is an abuse of that discretion or if impermissible legal criteria are applied. Purcell & Wardrope Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 1074, 530 N.E.2d 994, 997.

Turning to the first prerequisite of section 2 — 801, defendants do not dispute that the class is so numerous that joinder of all members is impracticable. The trial court found that class members could potentially total in the “hundreds of thousands or millions.” Obviously, any attempt to join such a large number of plaintiffs in a single suit would render the suit unmanageable and, in contrast, multiple separate claims would be an imposition on the litigants and the courts. (Steinberg, 69 Ill. 2d at 337, 371 N.E.2d at 642-43; Hoover, 62 Ill. App. 3d at 114, 378 N.E.2d at 769.) Further, as one commentator has observed:

“In cases where there is a substantial number of potential claimants and the individual amounts of their claims are relatively small, Illinois courts have tended to permit the claims to proceed as a class action.” (Forde, 59 Chi. Bar Rec. at 122.)

We hold that the first prerequisite of section 2 — 801 is established.

Turning to the second prerequisite of section 2 — 801, defendants contend that the record does not establish the existence of predominant questions of fact or law common to the class. Defendants initially assert that a successful adjudication of a class representative’s individual claim would not establish a right to recovery in any other class member. Defendants posit that each class member’s purchase of an adulterated orange juice product involved a unique set of facts, such as the exact type of item purchased, the particular retail grocery store where the item was purchased, the date it was purchased, the label the item bore, the purchase price, and each consumer’s reliance on defendants’ misrepresentations. Thus, defendants reason, each class member would be required to testify to establish a right to recovery, i.e., defendants’ liability. Defendants argue, therefore, that a class action cannot be maintained.

We cannot accept defendants’ argument. Our supreme court has explained that section 2 — 801(2) of the class action statute “is couched in the disjunctive — ‘common questions of fact or law.’ It does not, therefore, require the presence of both a common question of fact and a common question of law.” (Emphasis in original.) (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 17, 428 N.E.2d 478, 483.) “So long as there are questions of fact or law common to the class and these predominate over questions affecting only individual members of such class, the statutory requisite is met.” Steinberg, 69 Ill. 2d at 338, 371 N.E.2d at 643.

We conclude that this test has been met in the case at bar. The record shows the existence of at least one question common to the class that predominates over questions affecting individual class members. That question is simply whether defendant adulterated its orange juice products and committed the other fraudulent acts as alleged. In Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815, we held as follows:

“A class action can properly be prosecuted where a defendant is alleged to have acted wrongfully in the same basic manner as to an entire class. In such circumstances, the common class questions still predominate the case, and the class action is not defeated. [Citations.]” 47 Ill. App. 3d at 273, 361 N.E.2d at 820.

We further conclude that the other questions that defendants raise, pertaining to the exact circumstances of each class member’s purchase, fail to show that the common question does not predominate.

The question of each class member’s reliance on defendants’ misrepresentation does not show that the common question does not predominate. Plaintiffs alleged, inter alia, that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.). In Brooks, this court distinguished a class action that sought relief for a statutory fraud violation from a class action seeking relief under a common law fraud theory. We observed as follows:

“Under the common law, reliance was an element which had to be alleged in order to constitute a valid cause of action for misrepresentation or deceit. [Citations.] However, the language employed in the Consumer Fraud Act clearly indicates that it is the intent of the defendant in his conduct, not the reliance or belief of the plaintiff, which is the pivotal point upon which an action arises. [Citation.] Section 2 of the Act specifically provides that the question of whether a person has been misled, deceived or damaged is not an element of an action brought under the Act. If, after trial, it is found that defendant did engage in an unlawful practice in its advertising, then the question common to all class members has been established in favor of plaintiffs.” Brooks, 47 Ill. App. 3d at 272-73. 361 N.E.2d at 819-20.

Also, defendants contend that the common question does not predominate because each consumer paid a different price for a particular item. However, it is settled that “[t]he fact that the class members’ claims for refunds may be in varying amounts which must be determined separately does not necessarily mean that the common question does not predominate.” Society of St. Francis v. Dulman (1981), 98 Ill. App. 3d 16, 18, 424 N.E.2d 59, 61, citing Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 422 N.E.2d 860.

Additionally, defendants posit that the trial court would have to apply to each purchase the substantive law of the State in which each class member bought the adulterated orange juice product. Defendants contend, therefore, that the common question is governed by the substantive law of possibly 50 States and does not predominate.

We disagree. The question of whether laws of different States apply to specific transactions alleged in a class action will not ordinarily prevent certification of the class. (Purcell, 175 Ill. App. 3d at 1075, 530 N.E.2d at 998.) We initially note that if the trial court found that Illinois has significant contact to the claims asserted by each class member, the court could apply Illinois substantive law to this multistate class action. This finding would ensure that the application of Illinois law is neither arbitrary nor unfair. (Martin v. Heinold Commodities, Inc. (1987), 117 Ill. 2d 67, 82, 510 N.E.2d 840, 846-47 (and cases cited therein).) We further note that the trial court could simply divide the class into subclasses. (Martin, 117 Ill. 2d at 81-82, 510 N.E.2d at 846; Miner, 87 Ill. 2d at 17-18, 428 N.E.2d at 483-84.) “Moreover, if at some later time in the litigation the subclassification becomes unmanageable, the court, of course, always has the option to set aside the class certification or a portion of it.” (Purcell, 175 Ill. App. 3d at 1075, 530 N.E.2d at 998.) At the most, this question constitutes a hypothetical problem that might arise in the future. As such, it is not a sufficient basis to refuse to certify an otherwise properly pleaded class action. See Purcell, 175 Ill. App. 3d at 1075, 530 N.E.2d at 998.

In their complaint and in their motion for class certification, plaintiffs list many questions which they claim are predominant and common to the class. We need not address each question seriatim. It suffices to say that plaintiffs’ claim under the Consumer Fraud Act predominates and is common to the class. We note that the class action device “is flexible in nature and may be adjusted or modified by the trial court at a later point in the litigation to accommodate any changes or newly discovered facts as they arise.” (Purcell, 175 Ill. App. 3d at 1076 n.2, 530 N.E.2d at 999 n.2.) Indeed, even a subsequent “determination that some members of a class are not entitled to relief because of some particular factor will not bar the classification.” Steinberg, 69 Ill. 2d at 338, 371 N.E.2d at 643.

We also note that defendants cite Reardon v. Ford Motor Co. (1972), 7 Ill. App. 3d 338, 287 N.E.2d 519, in support of their argument. In Steinberg, our supreme court explained that the decision in Reardon rested at least in part on a common law requirement for class actions that was superseded by the class action statute. The Steinberg court questioned the precedential value of Reardon (69 Ill. 2d at 339-40, 371 N.E.2d at 644) and we do likewise. We hold that the second prerequisite of section 2 — 801 is established.

Turning to the third prerequisite of section 2 — 801, defendants claim that the named plaintiffs will not adequately represent the class. The purpose of the adequate representation requirement is merely to ensure that all class members will receive proper, efficient, and appropriate protection of their interests in the presentation of the claim. Purcell, 175 Ill. App. 3d at 1078, 530 N.E.2d at 1000; Brooks, 47 Ill. App. 3d at 274, 361 N.E.2d at 820.

In the case at bar, the interests of the named plaintiffs are the same as those of the absentee class members — to seek damages based on defendants' misrepresentations to consumers concerning their adulterated orange juice products. Further, the record shows that this is not a collusive action; rather, this is an adversary proceeding against defendants. If the adequacy of representation by the named plaintiffs is questioned at a later time, we repeat that the trial court could, if necessary, modify the class structure or decertify the class. (Purcell, 175 Ill. App. 3d at 1078-79, 530 N.E.2d at 1001.) We hold that the third prerequisite of section 2 — 801 is established.

Turning to the fourth prerequisite of section 2 — 801, defendants claim that a class action is not an appropriate method for the fair and efficient adjudication of the controversy. In applying this prerequisite in a particular case, a court considers whether a class action: (1) can best secure the economies of time, effort and expense, and promote uniformity; or (2) accomplish the other ends of equity and justice that class actions seek to obtain. (Forde, 59 Chi. Bar Rec. at 128; see Society of St. Francis, 98 Ill. App. 3d at 19, 424 N.E.2d at 61-62.) Further, “[a] controlling factor in many cases is that the class action is the only practical means for class members to receive redress — particularly where the claims are small.” Forde, 59 Chi. Bar Rec. at 128.

Applying these principles to the record before us, we conclude that a class action is appropriate in the case at bar. Initially, our holding that the first three prerequisites of section 2 — 801 are established makes it evident that the fourth requirement is fulfilled. (See Steinberg, 69 Ill. 2d at 339, 371 N.E.2d at 644.) Additionally, it must be remembered that this is a consumer class action. Our courts have recognized that, “[i]n a large and impersonal society, class actions are often the last barricade of consumer protection.” (Eshaghi, 214 Ill. App. 3d at 1004, 574 N.E.2d at 766.) The consumer class action is an inviting procedural device to address frauds that cause small damages to large groups. When brought by plaintiffs who have no other avenue of legal redress, the consumer class action provides restitution to the injured and deterrence to the wrongdoer. (Hoover, 62 Ill. App. 3d at 112, 378 N.E.2d at 768; see K. Ross, Multistate Consumer Class Actions in Illinois, 57 Chi.-Kent L. Rev. 397, 398 (1981).) Thus, the ends of equity and justice are attained.

Defendants vigorously argue that a class action is not appropriate in the case at bar because the class is composed of a large number of unidentified individuals whose claims cannot be substantiated. Defendants cite cases in which courts have held that “insubstantial recoveries by class members, high administrative costs in relation to aggregate recovery and difficulty in corroborating claims are valid considerations in determining whether a class action is manageable.” Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 712, 425 N.E.2d 1174, 1184, citing Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 348 N.E.2d 161.

However, in the trial court’s order granting class certification, the court approved the use of fluid recovery to avoid the expected manageability problems. The term “fluid recovery” refers to a procedural device used to avoid manageability problems in the calculation and distribution of damages in large class actions. Examples of such problems are where the persons injured are not likely to come forward and prove their claims, or where such persons cannot be given notice of the case. (Simer v. Rios (7th Cir. 1981), 661 F.2d 655, 675.) The mechanism generally consists of the following format:

“(1) the amount of damages incurred by the class as a whole is determined in a single adjudication, creating a damage fund; (2) individual member claimants capable of proving valid claims obtain their share of the fund; and (3) the unclaimed portion of the fund is applied to the class’s benefit. [Citation.]” (Cicelski v. Sears, Roebuck & Co. (1984), 132 Mich. App. 298, 304-05, 348 N.W.2d 685, 689.)

The third procedural step is the actual fluid recovery, which commonly assumes one of two forms. The remainder of the fund is: (1) distributed through the market, usually in the form of reduced charges, or (2) used to fund a project which will likely benefit class members. Simer, 661 F.2d at 675; Cicelski, 132 Mich. App. at 305, 348 N.W.2d at 689; see generally Note, Developments in the Law-Class Actions, 89 Harv. L. Rev. 1318, 1516-23 (1976).

Defendants argue that the fluid recovery mechanism violates the class action statute. Thus, according to defendants, the trial court’s approval of the use of fluid recovery amounted to a de facto amendment of the statute. This brings us to the specific question certified by the trial court. We answer the question in the affirmative, and conclude that the fluid recovery mechanism is permissible in Illinois in appropriate cases.

Initially, we agree with other courts that the fluid recovery procedure is not inherently unconstitutional. In Cicelski, the Michigan Court of Appeals reviewed the several Federal cases that addressed the issue. The court agreed with a commentator that, absent issues that require individualized proofs, a defendant in a class action is not prejudiced by being restricted to only one hearing on common issues. Regarding the calculation of damages, “ ‘it has never been thought that due process required multiple hearings where there was one full and fair adjudication of the merits.’ ” Cicelski, 132 Mich. App. at 306-07, 348 N.W.2d at 690, quoting Note, 89 Harv. L. Rev. at 1524-25.

Further, the court in Cicelski was persuaded by the approach taken by the United States Court of Appeals for the Seventh Circuit in Simer. We are likewise. In Simer, the court held as follows:

“We need not adopt either of the two extreme positions— that is, whether a fluid recovery always can be used to surmount problems in the going forward of a class action or whether a fluid recovery is per se unconstitutional. Rather, we believe that a careful case-by-case analysis of use of the fluid recovery mechanism is the better approach. In this approach we focus on the various substantive policies that use of a fluid recovery would serve in the particular case. The general inquiry is whether the use of such a mechanism is consistent with the policy or policies reflected by the statute violated. This matter can be more particularized into an assessment of to what extent the statute embodies policies of deterrence, disgorgement, and compensation.” Simer, 661 F.2d at 676, quoted in Cicelski, 132 Mich. App. at 307, 348 N.W.2d at 690-91.

After reviewing the record before us, we conclude that fluid recovery is appropriate in the case at bar. Plaintiffs allege, inter alia, that defendants violated the Consumer Fraud Act. (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.) “The Act is a regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a remedy to individuals injured by them.” (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 288, 430 N.E.2d 1012, 1017.) Section 11a of the Act provides that “[the] Act be liberally construed to effect the purposes thereof.” (Ill. Rev. Stat. 1989, ch. 121½, par. 271a.) It is quite established that “[t]he provision is a clear mandate from the Illinois legislature that our courts utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties.” (People ex rel. Hartigan v. All American Aluminum & Construction Co. (1988), 171 Ill. App. 3d 27, 33, 524 N.E.2d 1067, 1070, citing Buhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267, 1277; see Warren v. LeMay (1986), 142 Ill. App. 3d 550, 563, 491 N.E.2d 464, 471.) This legislative intent and mandate necessarily include policies of deterrence, disgorgement, and compensation. Thus, we hold that fluid recovery is available in at least the claim brought under the Consumer Fraud Act.

In sum, the benefits of class certification in the case at bar, with the use of fluid recovery where appropriate, outweigh the tremendous burdens presented if the case proceeded without class certification. We hold that the fourth prerequisite of section 2 — 801 is established. After reviewing the entire record, we cannot say that the trial court exceeded its discretion in certifying the class.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE McNULTY

text:
      In re C.C. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Connie C. et al., Respondents-Appellants).
    First District (5th Division)
    Nos. 1—87—3128, 1—88—2698 cons.
    Opinion filed December 27, 1991.
    Rehearing denied February 14, 1992, and May 4, 1992.

      Rita Fry, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant Connie C.
    David A. Izzo, of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellant Robert C.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kathleen F. Howlett, and Anne C. Scrivner, Assistant State’s Attorneys, of counsel), for the People.
    Patrick T. Murphy, Public Guardian, of Chicago (Kim Albert, of counsel), guardian ad litem.

   JUSTICE McNULTY

delivered the opinion of the court:

This is an appeal from an order in a juvenile proceeding involving Connie C. and Robert C., Sr., and their children C.C. and R.C. The issues presented on appeal are whether: (1) there was corroborating evidence for the out-of-court statements made by the minors accusing their father of sexual abuse; (2) the trial court’s findings of abuse against the father are against the manifest weight of the evidence; (3) the trial court erred in the entry of the finding of dependency against the father; (4) the trial court erred in conducting simultaneously the supplemental petition to deny the mother supervised visits and the adjudicatory hearing alleging sexual abuse by the custodial father; (5) the trial court erred in entering a finding of unable as to the mother; (6) the trial court erred in terminating the mother’s supervised visits with her children; (7) the trial court improperly admitted various forms of hearsay evidence; (8) the trial court erred in terminating the mother’s visitation rights indefinitely; (9) the trial court used the correct standard of review when it determined the mother’s unfitness; and (10) the mother received ineffective assistance of counsel.

The Department of Children and Family Services (DCFS) first became involved with the C. family in 1977. In 1984, the trial court entered a finding of environment injurious against the mother, and the children were removed from her custody. In 1986, while the boys were living with their father, the State filed a petition for adjudication of wardship, alleging that C.C. and R.C. were victims of sexual abuse by their father.

During the 1985-1986 year, when he was five years old, C.C. attended the John Muir School and was enrolled in a special education program for emotionally disturbed children. A social worker in the school, Jeannette Jungst, testified that she had noticed changes and a deterioration in C.C.’s behavior after he began living with his father. According to Ms. Jungst, C.C. was more sensitive, began crying over insignificant things, began wetting his pants daily, became increasingly less affectionate and did not want adults to touch him or to place him on their laps. In addition to being tired and lethargic, C.C. was difficult to motivate and stopped doing his school work.

While in Ms. Jungst’s office on March 18, 1986, C.C. asked if he could play with the puppets on Ms. Jungst’s shelf. After taking three puppets off of the shelf, C.C. named one puppet after himself, one after his brother R.C., and one after his father. C.C. then said that he wanted to play a secret game which made him sad and his father happy. C.C. told Ms. Jungst that he tried to hide in a closet or under the bed when his father wanted to play the game and that while he was hiding, he could hear his father and R.C. playing the game. C.C. stated that despite his efforts to hide, he was forced to play the game. C.C. told Ms. Jungst that when he played the game, his father would hold him very tight and assure him that the game would be quick and fast. C.C. explained that the game involved turning one’s head and mouth and the use of private parts. When asked to identify his private parts, C.C. pointed to his penis and rear end. C.C. then put one puppet’s penis in another puppet’s mouth and said that his father would do this before switching positions. According to C.C., his father and R.C. would play the same type of game before all three eventually participated. He explained that during this game, some white sticky stuff would come out and he had to spit it out and get a drink of water.

That same day, Jean Gulino, a social worker at the Behavior Education Center where C.C.’s older brother, R.C., attended school, brought R.C. over to the John Muir School for a meeting with Ms. Jungst, C.C., a DCFS social worker and C.C.’s teacher. C.C. once again used the puppets to describe the secret game that he and his brother played with their father. Ms. Gulino testified that although R.C. was seven years old, he functioned as an 18-month-old emotionally, and that he wet his pants, had bowel movements in his pants, had frequent temper tantrums, cried and whined a great deal, was unable to accept hugs, could not sit in his seat at school and was unable to complete or do any task unless an adult sat with him and supervised.

C.C. and R.C. were then placed in Mt. Sinai Hospital, where they stayed from March 20 to March 28, 1986. Dr. Sharon Ahart testified that although she did not conduct the initial physical examination of the boys, she did conduct the follow-up examination and managed their cases. Dr. Ahart testified that both C.C. and R.C. underwent complete physical examinations, laboratory tests for sexually transmitted diseases and sexual trauma as well as a variety of interviews and tests by a social worker, a psychologist, a psychiatrist and a child-life specialist. The diagnosis on C.C. was both sexual abuse and physical abuse while the discharge diagnosis on R.C. was sexual abuse, mild retardation and severe developmental delay. Dr. Ahart noted that since child abuse cannot always be diagnosed by physical determinations, the diagnoses were the result of a team decision in which an interdisciplinary group made up of a child-life specialist, a psychologist, a social worker, a psychiatrist, and nurses compiled a “composite picture” of the boys. She testified that while the physical examinations of the boys did not reveal the presence of sexually transmitted diseases or physical evidence of sexual abuse, the team concluded from their interviews, evaluations and observations of the boys that they were both victims of sexual abuse. This conclusion was reached in part by C.C.’s discussions about touching his penis, about touching his father’s penis both erect and then soft again and about “yellow stuff.” The team also found significant the fact that there was some sexual acting out between the two boys.

After his stay in Mt. Sinai Hospital, R.C. returned to school at the Behavioral Education Center and to therapy sessions with Ms. Gulino. During one of these therapy sessions, Ms. Gulino discussed C.C.’s description of the secret game. R.C. mostly listened but did say that what C.C. had told was true. R.C. told Ms. Gulino about bad touches by his father, and when asked where his father touched him, R.C. pointed to his genitals. R.C. also told Ms. Gulino that his father hit him.

During the hearing on the State’s petition for adjudication of wardship, the boys’ mother tendered a petition for supplemental relief requesting supervised visits with R.C. and C.C. Objecting to the petition, the assistant public guardian asked that any supervised visits be terminated. Marjorie Morris, a DCFS social worker, testified that during the period between October 1980 and June 1983, DCFS received 10 reports of abuse involving the father and the mother. Ms. Morris testified there were seven findings of abuse against the mother and that, in June 1983, a service plan allowing the mother supervised visitation was drawn up. The mother, however, failed to comply with the plan and the last visit between the mother and the two boys occurred in June 1983. DCFS next met with the mother during an administrative case review in March 1987, where it was explained to the mother that after her disappearance from the boys’ lives for four years, it would be psychologically detrimental to the children if she suddenly reappeared. DCFS, therefore, drew up a service plan for the purpose of gradually reintroducing the mother to her children. The plan required the mother to schedule a three-way telephone call between her, the private agency worker, and the boys. After the telephone call, the mother was to send each son a photograph of herself and a letter explaining who she was and where she had been. Ms. Morris testified that although the mother telephoned the boys on May 14, 1987, she failed to follow the call with either a letter or a photograph.

Lisa Cole testified that she had known R.C. since April 1986, when he was placed in her home. She testified that when R.C. was first placed, he wet his pants two or three times a day, drooled constantly, and was unable to groom himself or to follow instruction. She testified that while under her care, R.C’s behavior improved significantly. However, according to Ms. Cole, after R.C. received the call from his mother on May 14, 1987, his behavior began to deteriorate. Ms. Cole also testified that despite instructing the mother not to mention either the boys’ father or R.C. coming to live with her, the mother brought up both subjects during her conversation with the boys. After the telephone call, R.C. asked questions concerning what a mother was and why she had not seen him. R.C. also exhibited angry feelings, began crying, wetting his bed, acting out in school, and requiring someone to physically hold him and comfort him. Ms. Gu-lino, the school therapist, also testified that R.C. had been making progress until after he received the telephone call from his mother.

Karen Chaac, C.C.’s foster mother, likewise testified that after receiving the telephone call from the mother on May 14, 1986, C.C became angry and depressed. Ms. Chaac testified that although C.C. received a letter from his mother, a photograph was not enclosed. While Ms. Chaac was reading the letter to C.C., C.C. asked to go to the bathroom and once inside the bathroom began to repeatedly bang his head against the wall until he was physically restrained by Ms. Chaac. In addition, Ms. Chaac stated that after being contacted by his mother, C.C. began to engage in behavior that he had not exhibited in 10 months, such as crying, wetting his pants, having bowel movements in his pants and crying in his sleep. Rather than bringing home from school pictures he had made of “smiling faces,” C.C. brought home “sad faces.” In addition, C.C. would only color in black and when asked what one picture he brought home was, C.C. responded that it was a picture of him hanging himself. In addition, C.C. continually asked Ms. Chaac if she no longer wanted or loved him.

Thomas Denst, a social worker who worked with C.C. during the 1986-87 year, testified to noticeable changes and regression in C.C.’s behavior after C.C. received the telephone call from his mother. According to Mr. Denst, C.C. went from being a group leader to acting like a baby and causing disturbances. In addition to making inappropriate comments and having difficulty getting along with other children in school, C.C. would have outbursts that would end in crying spells.

Linda Vasquez, a caseworker from Central Baptist Family Services who had worked with the C. family from August 1983 to January 1985, testified that despite the mother’s requests to see the boys, the mother repeatedly failed to show up for scheduled visits or to explain her failure to appear. Dr. Bonnie Benzies, a psychologist that worked with the boys, recommended termination of visits between mother and children based upon the inconsistencies in the mother’s life and the traumatic effects her presence had on the boys.

The mother testified that she had sent her children letters which included a photograph of herself and telephoned them. She testified that despite her efforts to comply with the service plan, she has been denied visitation with her children. The mother testified that she wants to visit with both boys and work toward their eventual return.

After finding that the mother failed to follow through with the service plan set up by DCFS and that the mother’s consistency in her dealings with her children would be in the children’s best interests, the trial court denied the petition to implement supervised visits between C.C., R.C. and their mother. Having denied the petition for supplemental relief, the hearing for the petition for adjudication of wardship based upon allegations of sexual abuse by the father resumed. The father’s pastor, David C. Brown, testified that in his contact with the family over the last nine years, he had never observed the father have any contact with his sons outside the realm of normal child-parent relationships.

Officer Dubs, a patrol officer, testified that on March 18, 1986, he received a call to investigate possible child abuse at the father’s address. During his half-hour interview with the father, the father denied all allegations of sexual abuse.

The trial court concluded that R.C. was abused, and that the parents created an injurious environment that created a substantial risk of physical injuries to R.C. The court further found that the parents allowed a sex offense to be committed against R.C. and made a finding of dependency as to the father. The trial court entered a finding of unable as to the mother, a finding of unable, unwilling and unfit as to the father and adjudicated wardship of C.C. and R.C. The trial court granted guardianship with the right to place to Gary T. Morgan from DCFS. Although both parents filed separate appeals, the cases have been consolidated.

Opinion

Initially, the father maintains that the trial court erred when it based its finding of abuse as to the father on out-of-court statements made by the minors since the statements were not corroborated by independent evidence. While out-of-court statements are generally inadmissible hearsay, the Juvenile Court Act provides an exception for the admission of out-of-court statements made by minors that pertain to incidents of abuse or neglect. Section 2 — 18(4)(c) provides:

“Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” (Ill. Rev. Stat. 1987, ch. 37, par. 802—18(4)(c).)

In evaluating whether the minor’s out-of-court statements were sufficiently corroborated by independent evidence, we find persuasive In re K.L.M. (1986), 146 Ill. App. 3d 489, 496 N.E.2d 1262. In K.L.M., the court found that the child’s out-of-court testimony of sexual abuse by her father was corroborated by: (1) testimony of a caseworker for DCFS and a psychotherapist that the child was anxious and that this was a sign of abuse; (2) the father’s testimony which indicated that the child had limited opportunity to have learned about the sexual matters that she allegedly described; (3) the fact that there was no opportunity to arrange for the minor to give false testimony; and (4) the fact that the child had skin irritation in the genital area. The court concluded that when taken together, this circumstantial evidence constituted sufficient corroboration of the hearsay evidence, especially in light of the facts that there was no apparent reason why the child would have fabricated her story and that she would not have been able to describe semen unless she had seen it and it would have been unlikely that she had seen it unless the events she related had actually taken place. K.L.M., 146 Ill. App. 3d at 494, 496 N.E.2d at 1266.

The father claims that the instant case is distinguishable from K.L.M. since here the children’s statements were not corroborated by physical evidence of abuse. We are not persuaded by the father’s argument since what constitutes corroborative evidence varies depending upon the facts to be corroborated. (In re Brunken (1985), 139 Ill. App. 3d 232, 487 N.E.2d 397.) The type of sexual abuse alleged here, oral copulation, is not the type which would be supported by physical evidence of abuse.

Corroborating evidence is that which by its nature makes it more probable that the child was abused. (In re Marcus E. (1989), 183 Ill. App. 3d 693, 539 N.E.2d 344.) The children’s testimony in the instant case was corroborated by the fact that approximately six months after being returned to his father’s custody, C.C.’s social worker, Jeannette Jungst, observed C.C. playing with anatomically correct puppets where he recreated the secret game he played with his father and his brother R.C. Another highly probative fact was C.C.’s ability to describe semen. A five-year-old would not have been able to describe semen unless he had seen it, which is unlikely unless the events that C.C. described during the “secret game” had actually taken place. In addition to testifying about the children’s statements, both Ms. Jungst and Ms. Gulino testified about unusual behaviors exhibited by C.C. and R.C., respectively, beginning in September 1985. Ms. Jungst testified that C.C. began crying over insignificant things, wetting his pants every day, became less affectionate, did not want to be touched, stopped doing school work and was hard to motivate. Ms. Gulino testified that R.C frequently wet his pants and had bowel movements in his pants, had frequent tantrums, often cried and wined, and would not let anyone hug him. Furthermore, as Dr. Ahart testified, while at Mt. Sinai Hospital, an interdisciplinary team interviewed, observed and psychologically tested both children. The team put together a “composite picture” of the boys and concluded that both R.C. and C.C. had been sexually abused. These facts make it more probable than not that the children were indeed sexually abused by their father. While the father relies on In re Custody of Brunken (1985), 139 Ill. App. 3d 232, 487 N.E.2d 397, we find this case distinguishable because the allegations of abuse there arose from a visitation dispute between the parents and the mother had a motive to fabricate allegations of sexual abuse by the father. Here, there is no evidence to indicate that any of the caseworkers, teachers or doctors who testified had the motive or opportunity to arrange for the minors to give false testimony just as there is no evidence of any sort that either boy had a reason to fabricate such a story. Furthermore, in Brunken, the State presented as corroborative evidence the expert testimony of a psychologist who stated that he had never examined or interviewed the child in question. His testimony consisted of generalities concerning other children that he had examined and their typical behavior. In the instant case, the expert testimony of Dr. Ahart was based on five days of observation, interviews and testing of the two children.

The father next maintains that State’s evidence was insufficient to support the trial court’s finding of abuse. The standard of proof in abuse cases is that applicable to civil proceedings, a preponderance of the evidence. (In re J.H. (1987), 153 Ill. App. 3d 616, 505 N.E.2d 1360.) Preponderance of the evidence is proof that leads the trier of fact to find that the existence of the fact in issue is more probable than not. (People v. Drake (1985), 131 Ill. App. 3d 466, 475 N.E.2d 1018.) The finding of the trial court upon the issue of abuse should not be disturbed unless contrary to the manifest weight of the evidence. (In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) The trial court is afforded broad discretion when determining parental rights and responsibilities due to its opportunity to observe the conduct and demeanor of the parties and witnesses. In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820.

Based on the testimony of the boys’ caseworkers, teachers, doctors and foster parents, as discussed above, we find that the trial court’s decision was not against the manifest weight of the evidence. C.C.’s description of the secret game, his description of semen, and the observations of the boys’ teachers, doctors and foster parents established that it was more likely than not that the father sexually abused his children.

The father next contends that the trial court erred when at the close of trial it allowed the State to include a count of dependency in its petition for adjudication of wardship. While the father failed to object to the addition of the dependency count at the time of trial, he did raise the issue in a written post-trial motion and we will therefore address this issue.

The Code of Civil Procedure provides that an amendment of pleadings may be made at any time in order to conform the pleadings to the proof. (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(c).) The decision whether to allow pleadings to be amended after the close of evidence lies within the sound discretion of the trial court, and absent an abuse of discretion, the court’s determination will not be disturbed. (Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 501 N.E.2d 273.) While the trial court’s power to allow amendments should be freely exercised, the court should not permit the amendment of a pleading if the amendment alters the nature of proof required to defend (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164), or the other party would be prejudiced or surprised. (Trident, 149 Ill. App. 3d at 866, 501 N.E.2d at 280.) The test for determining whether the trial court properly exercised its discretion is whether allowance of the amendment furthers the ends of justice. Trident, 149 Ill. App. 3d at 866, 501 N.E.2d at 280.

We find that it was indeed error for the trial court to permit the State’s pleading to be amended to include a dependency count at the close of evidence. Since the father was unaware that a dependency count was to be added until the close of evidence, he was unable to present any evidence to rebut the allegation of dependency. Accordingly, justice is not served by adding a dependency count and the finding of dependency is reversed.

Turning to the mother’s contentions, we first address her argument that she is entitled to a new hearing on the petition for supplemental relief because the trial court erred in conducting the adjudicatory hearing on allegations of sexual abuse of the minors by the father simultaneously with the hearing on the petition for supplemental relief regarding visitation between the mother and her minor sons.

The decision whether to sever or consolidate proceedings rests within the sound discretion of the trial court. (People v. Perry (1975), 27 Ill. App. 3d 565, 327 N.E.2d 259.) It is defendant’s burden to show how she would be prejudiced by a combined trial. (Perry, 27 Ill. App. 3d 565, 567, 327 N.E.2d 259, 261.) Although the mother never objected at the time of trial to the dual proceedings or raised it in a post-trial motion, we address this issue in order to insure that the mother received a fair hearing.

There is a strong presumption in a bench trial that the trial court only relied on proper evidence in reaching its decision. (People v. Glanton (1975), 33 Ill. App. 3d 124, 338 N.E.2d 30.) In order to rebut this presumption, there must be an affirmative showing on the record that the trial court actually used improper evidence. People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834.

The trial court was presented with ample evidence from which to conclude that visitation by the mother was detrimental to the welfare of her children. However, the record reveals that the trial court’s rulings as to the mother were influenced by the evidence of sexual abuse on the part of the father. The trial court stated that the evidence was sufficient to indicate that R.C. was abused and that “his parents create a substantial risk of physical injuries to such Minor.” The court further commented that “the parents allowed to be committed against the Minor a sex offense.” Because the mother was noncustodial at the time that the father sexually abused his sons, and there is no allegation that the father committed these acts of sexual abuse during the mother’s visitation with the children, we cannot conclude from this record that the evidence of sexual abuse by the father had no influence on the trial court’s decision to terminate the mother’s visitation rights. The remarks by the trial court lead us to believe that the mother was prejudiced by the simultaneous proceedings. For this reason, we reverse the trial court’s finding of unable as to the mother and the termination of the mother’s visitation rights, and we remand for the trial court to conduct a new hearing, untainted by evidence of sexual abuse by the father, as to the visitation rights of the mother. In light of our decision to remand on this issue, we need not address the other issues raised by the mother.

Affirmed in part; reversed in part and remanded in part.

LORENZ, P.J., and GORDON, J., concur.