author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY SANFORD et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 80—1125, 80—1602 cons.
    Opinion filed July 29, 1983.

      James J. Doherty, Public Defender, of Chicago (Robert M. Guch, Assistant Public Defender, of counsel), for appellant Leroy Sanford.
    Richard E. Gorman, of Chicago, for appellant Edward James.
    Ralph Ruebner and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant James Lewis.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Following a joint jury trial, defendants Leroy Sanford, Edward James and James Lewis were found guilty of armed robbery stemming from a hold up of a service station. Each defendant was sentenced to an extended term of 60 years’ imprisonment. Their appeals have been consolidated.

The issues raised on appeal are: (1) whether the trial court erred in denying James’ motion for severance; (2) whether the trial court erred in admitting codefendants’ incriminating statements at their joint trial; (3) whether the trial court erred in denying James’ motion to suppress police identification testimony; (4) whether an accumulation of errors denied James and Lewis their right to a fair trial; (5) whether James’ inculpatory statement should have been suppressed as stemming from improper extradition; and (6) whether Lewis and Sanford were improperly sentenced to extended-term sentences.

The defendants, along with Lawrence Poree, were indicted jointly. James and Lewis were taken into custody from authorities in Memphis, Tennessee, by Chicago police officers. Before trial, James and Lewis moved for severance on the ground that each of the four defendants had made statements to police which inculpated themselves and the others. The motion was denied and the statements were ultimately admitted into evidence. The trial court granted Lewis’ motion in limine to bar an alleged statement by him regarding an unrelated crime and denied James’ and Lewis’ pretrial motions to suppress identification testimony and other evidence at their subsequent trial.

The Stqte presented the following pertinent evidence at trial. Dwayne Humbert was employed pumping gas at the Concord Gas Station in Chicago at 4:15 a.m. on August 7, 1979, when a white Mercedes Benz containing four black men entered the gas lane in the wrong direction. While he filled their order for gas, two of the men walked to the station, a third walked to the front of the car, and the fourth got out of the car. The latter wore a black stocking mask on his face and held a gun which looked like a machine gun. Humbert was then ordered to go to the porch of the station where he saw coworker Joe Varner lying face down on the ground. One of the men took the witness’ money, $100, and made him lie down next to Varner. After the robbers drove away, he found Hoover Thompkins in the back of the station. He did not observe any faces of the robbers.

Hoover Thompkins, manager of the gas station, testified. Upon seeing the Mercedes parked in the wrong direction, he approached the car and told the four occupants to turn the car around. He identified Poree as one of the men in the car. He could not recognize anyone else. Poree carried what looked to him like a submachine gun. Then a person whom he identified as Sanford placed a .45-caliber gun in his face and ordered him to get the keys and open the safe. When the witness replied that the keys weren’t there, Sanford turned him around and hit him on the back of the head, telling him to find the keys or he would be killed. After the witness opened the safe, Sanford took between $4,700 and $5,700 and ordered Thompkins to lie on the floor. Thompkins later received seven stitches as treatment for his head injury. He later viewed a police lineup and identified Poree and Sanford.

Charles Hardison, a gas station employee, testified that he and Eddie Jones, the station security guard, saw a man wielding a .45-cal-iber gun enter the station. This man had some grey hair and a slight beard. In court he indicated that James was this man. He also saw a tall masked man at the door carrying a machine gun. This man ordered him to lie on the floor and not to look at him or he’d be shot. Then the masked man took from him a money belt and coin changer and an additional $120, $60 in cash and a $60 check payable to Percy Powell.

Eddie Jones, the security guard, testified that at about 4:15 a.m. he saw a man carrying a .45-caliber automatic handgun walk up and say “This is a hold up.” This man was light-skinned and had a grey streak in his hair and beard. He identified this man in court as James. He was ordered to “hit the floor” while his gun and wallet were removed. He then heard Thompkins get the safe keys and open the safe. As security guard he had deposited 57 envelopes of cash, or $5,700, into the safe that night. Later he identified a photo of James as depicting the gunman. He also identified James in a lineup and again identified him in court.

Stanley Dillard, an employee of the service station, testified that after he sold a black man a pack of cigarettes this man displayed a .38-caliber handgun. At gunpoint, the man took the witness’ money, about $40 or $50, and walked him to the area where the others were lying on the ground. He was unable to identify anyone in a later police lineup and none of the four defendants present in court had held him up. He identified a photograph of Maurice Powell as the man who robbed him.

Chicago police officer Kevin Hanlon testified that at 4:45 a.m. he responded to a radio dispatch of an officer needing help. After arriving at a T-shaped alley near South Morgan and Sangamon streets, he joined 20 police officers in a search of the area. While searching, he found a .44-caliber revolver on the street. An evidence technician dusted the weapon for latent fingerprints.

Sergeant William Ross, a police beat supervisor, testified that on the date of the robbery he was patrolling alone in a marked squad car near 87th Street and Vincennes Avenue when he observed a Cadillac run a red light. He noticed there were several occupants in the car but he only observed the face of the driver. He then chased the vehicle into the T-alley at Morgan and Sangamon. There, he pulled alongside the car. Its doors were open, the engine running and its occupants were just in front, running away. Two of them turned and he saw their faces from a distance of about 25 feet. It was dark but the alley was lighted up and down. He gave chase on foot and as he got out of his car, he heard two shots. He called for help on his portable radio. Upon searching the Cadillac, he found a gun belt, an empty holster, a coin changer, shotgun shells and a styrofoam case for a Thompson-type submachine gun. At a police lineup he identified Lewis and James as the two men he observed in the alley. Prior to this lineup he had seen a police bulletin containing photographs of these defendants. At trial, he again identified Lewis and James. On cross-examination he did not recall giving a statement to an investigator “that as [I] entered the alley several shots were fired at [me] and [I] then accelerated [my] squad car to escape injuries and block with [my] vehicle the southern escape and wait for additional units to arrive.”

Officers John O’Brien, Thomas White and Gerald Corless testified. They participated in an organized search of the alley. O'Brien found a shotgun, and then observed a man lying near a bush. The man was placed under arrest. O'Brien then saw an automatic pistol and what appeared to be a machine gun magazine loaded with .45-cal-iber bullets. He then found the purported machine gun which turned out to be a semi-automatic carbine. Investigator Corless saw Poree in the bushes in the alley and found a 12-gauge shotgun nearby. A live red shell inside its chamber matched those found in the Cadillac. Cor-less searched Poree and found U.S. currency and the check made out to Percy Powell. Later, he located the white Mercedes. Inside it was a .9-millimeter spent casing. The certificate of title of the Cadillac was in the name of Maurice Powell. Officer White found two masks, one in the grass and the other on Sanford, who was lying in some shrubbery along a house nearby. He also found a loaded .9-millimeter pistol and a large .45-caliber magazine in the front yard of the house. In his hand Sanford was holding a roll of single dollar bills, totaling $60.

James Linn, assistant State’s Attorney, testified that he interviewed Sanford and Poree on August 7, 1979. Their conversations were recorded only by Linn’s brief written notes. Sanford’s statement to Linn recounted that he, James, Lewis, Poree and Maurice Powell all met at Poree’s house to plan a robbery of the gas station. They had decided that if they were all armed, they could overpower anyone there and easily get the money. They proceeded to the scene, all armed, except Sanford; Poree had the carbine, Powell and Lewis had handguns, and James had a shotgun. After they first checked out the gas station, they entered with their guns drawn. Poree aimed the so-called machine gun at the manager and threatened to blow his head off if he did not open the safe. Sanford took the money from the safe. After the group fled in the car somebody started shooting. They finally came to an alley and everybody ran in different directions. Poree’s statement was essentially the same. Poree carried the carbine which he hoped would appear to be a machine gun and he wore a nylon stocking mask. After the robbery Maurice Powell started shooting at someone, ultimately attracting the police. After Linn’s testimony, the trial court instructed the jury to consider Poree’s statement only against him and Sanford’s statement only against him and not against any of the other defendants.

Chicago police sergeant John Burge testified that he and Investígator Wagner interviewed Poree and Sanford on August 7, 1979. Poree furnished the officers with the names of the four other people allegedly involved — Sanford, Lewis, James and Maurice Powell. He then described the robbery. Sanford mentioned the use of the stolen Mercedes Benz which was used in conjunction with Maurice Powell’s Cadillac and he gave information on the location of the other participants. After telephone conversations with Tennessee authorities, extradition proceedings were commenced with respect to James and Lewis. On November 13, 1979, Burge, Wagner and Investigator Basile went to Memphis and took custody of James and Lewis at the Shelby County Jail and transported them to Chicago.

Dennis O’Neil of the latent fingerprint unit of the Chicago police department testified that a latent print lifted from the Mercedes Benz showed in excess of 40 points of comparison similar to those of the left ring finger of Lewis. Usually, 12 to 10 similar points constitute positive identification. In his opinion, the print belonged to Lewis.

Investigator Frank Laverty testified that on November 13, 1979, he interviewed James who admitted participation in the robbery with Powell, Poree and Lewis. On the same date, Assistant State’s Attorney Lawrence Terrell interviewed Lewis. Terrell testified that Lewis stated that the police had no case against him; that the police chasing the car never saw him because he was running with his back to them and was too far down the alley. Lewis stated that the others in the car were shooting at the officer running down the alley. When Terrell confronted Lewis with the fact that he’d been identified in a lineup and implicated by codefendants, he said, “Yes, I did it, but there is no identification.” Terrell also interviewed James who admitted his participation in the robbery and stated that he had fled with Powell to Memphis. At the close of Laverty’s and Terrell’s testimony, the trial court instructed the jury to consider James’ statements only against him and Lewis’ statements only against him, and not against any other defendants.

Finally, James testified on his own behalf. He denied participating in the robbery and he further denied making an inculpatory statement to Assistant State’s Attorney Terrell. He also stated that he was struck several times by police during his interrogation and that he was confronted about a murder and not about his involvement in an armed robbery. The State introduced a prior conviction for impeachment purposes.

Opinion

The first issue raised is whether the trial court erred in denying James’ motion for severance. James and Lewis also contend that under the circumstances, where all codefendants made extrajudicial, inculpatory statements which subsequently were admitted at their joint trial they were denied their sixth amendment rights to confrontation under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and its progeny.

We find no error in the trial court’s denial of James’ severance motion, and no Bruton violation by the admission of codefendants’ out-of-court statements. Defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a special trial to avoid prejudice. (People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) To show prejudice, however, a defendant must actively and specifically point out an antagonism in the defenses and thereby demonstrate the prejudice arising from the joint trial. (Lee.) The decision to grant a separate trial is within the sound discretion of the trial court, and will not be reversed absent an abuse of discretion. (Lee; People v. Davis (1976), 43 Ill. App. 3d 603, 357 N.E.2d 96.) In his brief, James fails to mention how he was prejudiced by a joint trial but for his vague reference to “the compromising situation in respect to the evidence that [he] found himself in.” This nonspecific allegation plainly fails to demonstrate the antagonism of defenses resulting in prejudice with requisite specificity to warrant severance or reversal. Moreover, no mention of this issue was raised in James’ post-trial motion for a new trial and, therefore, the issue is deemed waived for review. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759.

With respect to James’ and Lewis’ claim of error under Bruton, we refer to the exception to the Bruton rule announced in Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132. There, a four-member plurality of the Supreme Court held that the admission of “interlocking confessions” with the proper cautionary instructions that the confession of one defendant cannot be considered as evidence of the guilt of the other, does not violate a defendant’s rights under the fourteenth or sixth amendments. (442 U.S. 62, 75, 60 L. Ed. 2d 713, 724-25, 99 S. Ct. 2132, 2140.) Similarly, our supreme court had held that no Bruton violation occurs where the complaining defendant himself has made similar inculpatory admissions. People v. Bassett (1974), 56 Ill. 2d 285, 307 N.E.2d 359; People v. Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136; see also People v. Sanders (1981), 103 Ill. App. 3d 700, 431 N.E.2d 1145.

Here, each defendant admitted his own participation in the armed robbery and their statements, although not identical, agreed on such crucial facts as time, location, felonious activity, and awareness of the overall plan or scheme and were, therefore, “interlocking confessions.” {Parker.) The trial court properly instructed the jury that the confessions of one defendant could not be considered as evidence of guilt of the others. Thus, the admission of the inculpatory statements conformed to the requirements of the sixth amendment (Parker; Sanders), and we find no error. Finally, we note that there was ample independent evidence of James’ and Lewis’ guilt to further support the State’s contention that any error was harmless beyond a reasonable doubt under Bruton. Three witnesses identified James as a perpetrator of the crime and two witnesses identified Lewis. Also, Lewis’ fingerprints were found on the door of the getaway car. This evidence taken with James’ and Lewis’ own confessions served to minimize any prejudice to either from the admission of the other’s statements.

James and Lewis next contend that the trial court erred in denying a motion to suppress the lineup identification testimony of Sergeant Ross. They argue that Ross’ identification of Lewis and James was impermissibly suggestive because (1) Ross was told before the lineup that “two additional suspects” would be in the lineup, and (2) because some time before the lineup Ross viewed a bulletin showing a photograph of Lewis depicting him as one “wanted” for armed robbery. Under the circumstances of this case, however, we do not find that the trial court erred in refusing to suppress Ross’ lineup identification. Initially, defendants have not contended that the identification procedures were suggestive in the context that a likelihood of misidentification resulted, as is normally required for reversal. (See People v. Carlton (1979), 78 Ill. App. 3d 1098, 398 N.E.2d 107.) Also, the mere suggestion that the perpetrator of the crime is in the lineup, from a practical standpoint, has been held to be not unduly suggestive. (E.g., People v. Sanders (1977), 54 Ill. App. 3d 500, 369 N.E.2d 912.) Moreover, Ross’ suppression hearing testimony established that he made his identification on the basis of his observation of Lewis’ face as the defendant fled from the getaway car under lighted conditions and from a distance of 25 feet, rather than on the basis of Lewis’ photograph. Thus, the trial court had sufficient basis to find that neither the remarks nor the police bulletin influenced the outcome of the lineup.

Next, James and Lewis contend that an accumulation of errors denied them a right to a fair trial. Specifically, they first contend that the in-court identification procedures were “clumsy” because the eyewitnesses were permitted to leave the stand to identify the defendants while “surrounded” by assistant State’s Attorneys and deputy sheriffs, thereby creating the inference that the defendants were dangerous. However, in their briefs neither defendant has supported this contention with argument or citation to authorities as required by Supreme Court Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)), and this contention, therefore, is deemed waived. See Terracina v. Castelli (1979), 80 Ill. App. 3d 475, 400 N.E.2d 27.

Another contention of error concerned testimony by two assistant State’s Attorneys which, defendants claim, violated the trial court’s order, in limine, prohibiting evidence of other crimes. The following are examples. During cross-examination by a defense attorney, Assistant State’s Attorney Linn was asked if Poree had ever refused to answer any of his questions. Linn responded that “he did refuse to answer one question, but it was not related to this case.” No objection was made. Assistant State’s Attorney Terrell later testified, also without objection, that he met Lewis at the “Homicide Section”; that he talked about some unrelated incidents, cases; that he “told me some things that were unrelated” to the robbery; that James “went on to tell me some things about an unrelated case”; that another assistant State’s Attorney “had a special interest in these defendants”; and finally, that defendants spoke about “a group they were in.” (Emphasis added.)

Generally, evidence which shows that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the crimes charged is both incompetent and prejudicial. (People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778.) However, when the evidence of prior criminal acts is not direct, but merely inferential, the issue is the probative and prejudicial effect of the nexus between the admitted and prior criminality. People v. Banks (1981), 98 Ill. App. 3d 556, 424 N.E.2d 898; People v. Allen (1981), 96 Ill. App. 3d 871, 422 N.E.2d 100.

Here, there was no direct evidence of actual prior criminality but at most inferential references to other “unrelated” crimes, the details of which could be supplied only by speculation. Moreover, one reference was invited by questioning propounded by defense counsel, and in not one instance did any of the four participating defense attorneys voice an objection to the complained-of testimony. Accordingly, we find that the comments were not substantially prejudicial as to constitute error requiring reversal. Furthermore, in view of the overwhelming evidence establishing the defendants’ guilt, we cannot conclude that the testimony influenced the result of this case, or that the verdict would have been otherwise had the answers now objected to not been made.

Next, James and Lewis contend that the prosecutor made remarks in closing argument which were improper. In closing argument, the prosecutor stated that Lewis joined Powell and James in Memphis. He also referred to defendants as “professionals” and he argued that one-way mirrors are needed for lineups “because of the terror that these guys inspired.”

Defendants contend that the comment referring to Memphis was not based on the evidence. The record discloses, however, that following this comment Lewis’ attorney objected and the trial court promptly admonished the jury to only consider competent evidence and to disregard contrary evidence. Thus, any prejudicial effect resulting from the remarks was sufficiently cured. (See People v. Jarosiewicz (1977), 55 Ill. App. 3d 1057, 371 N.E.2d 949.) As to the prosecutor’s reference to the defendants as “professionals,” similar comments have been upheld as nonprejudicial. (See People v. Gillarm (1976), 41 Ill. App. 3d 174, 353 N.E.2d 280.) The rules generally applicable to such comments are that a prosecutor may comment unfavorably on the defendant and the violence of the crime, when supported by the evidence, and speak of the evil results of crime, and even when such comments constitute error, they will not result in reversal if the evidence so clearly indicates the defendant’s guilt that the verdict would not have been otherwise had the comments not been made. People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; Gillarm.

In the instant case, the evidence portrayed the robbery of the gas station by a group of men who efficiently carried out this planned task with the tools of their trade: masks, a cache of weapons including a semi-automatic carbine, and a stolen getaway car. (See Gillarm.) Moreover, even if the references to “professionals” and “terror” were considered to be error, we believe that the evidence established defendants’ guilt beyond a reasonable doubt and that the outcome would not have been otherwise had the comments not been made.

Lewis and James next contend that the trial court erred in denying their pretrial motions to suppress their inculpatory statements on the ground that they were the “fruits” of an improper extradition by Tennessee authorities. This issue, however, was not raised by Lewis during his pretrial motion to suppress, or in his post-trial motion for a new trial. Likewise, James failed to raise this issue in his post-trial motion for a new trial. Accordingly, this issue is deemed waived for review. People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.

Finally, Lewis and Sanford contend that the trial court erred in imposing maximum extended-term sentences of 60 years’ imprisonment. They claim that the extended-term statute is unconstitutionally vague and, alternatively, that the trial court relied on improper criterion in reaching their sentences. The vagueness argument raised by defendants, however, has been passed on by this court in People v. Kulpa (1981), 102 Ill. App. 3d 571, 430 N.E.2d 164, and People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149. These cases have held that section 5—5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(2)) is not unconstitutionally vague and are dispositive of this issue.

Defendants also claim that the trial court erred in concluding that the instant crime constituted exceptionally brutal or heinous behavior indicative of wanton cruelty in imposing the extended terms. The record shows that the trial court, in applying the extended term, expressly relied upon defendants’ prior convictions for felonies of the same or greater class within 10 years, and also his belief that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Sentencing decisions are matters of judicial discretion which must be afforded great weight and deference (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861), and so long as the sentence imposed is within the statutory limits, the sentence will not be set aside absent an abuse of that discretion. See generally People v. Gallardo (1983), 112 Ill. App. 3d 764.

The instant record supports the trial court’s finding with respect to the defendants having prior convictions of the same or greater class as the instant armed robbery. Accordingly, even if the finding with respect to the character of the instant crime is error, extended terms were proper discretionary sentences under the statute. Accordingly, we find no abuse of discretion in the decision to impose the extended terms.

For the foregoing reasons, the judgments of the circuit court are affirmed.

Affirmed.

SULLIVAN and LORENZ, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    CORA LEE LEWIS, Conservator of the Estate of Kenneth Brock, Plaintiff-Appellee, v. RIVERSIDE HOSPITAL et al., Defendants—(Aetna Casualty & Surety Company of Illinois, Intervenor-Appellant).
    First District (3rd Division)
    No. 82—773
    Opinion filed July 20, 1983.
    Rehearing denied August 15, 1983.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini and Kevin J. Glenn, of counsel), for appellant.
    Frank J. Mackey and Charles Wolff, both of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Aetna Casualty & Surety Company of Illinois (Aetna), the worker’s compensation insurance carrier for Kenneth Brock’s employer, appeals from an order of the circuit court of Cook County distributing the proceeds from the settlement of a lawsuit and temporarily suspending future workers’ compensation payments by Aetna to the conservator of Brock’s estate. The issues presented are: whether the circuit court properly determined the amount of credit against payment of future workers’ compensation benefits to which Aetna is entitled; whether the conservator’s attorney fees were properly assessed against this credit; and whether litigation costs assessed against Aetna should have been charged against the credit.

The relevant facts are largely undisputed. Kenneth Brock suffered severe injuries while in the course of his employment with Park-Ohio Industries, Inc., a division of Bennett Industries, Inc., and he was treated for these injuries by certain physicians at Riverside Hospital in Kankakee, Illinois. Subsequently, plaintiff, Cora Lee Lewis, conservator of the estate of Kenneth Brock, brought an action sounding in professional medical negligence and strict liability against the treating physicians, Riverside Hospital, and certain manufacturers of equipment used in Brock’s treatment. Since Aetna was the workers’ compensation insurance carrier for Brock’s employer, it was permitted to intervene so that it could protect its subrogation rights under section 5 of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5).

The aforementioned lawsuit was settled for $2,100,000. At the time of the settlement, the lien for workers’ compensation benefits already paid by Aetna was $539,929.36, and as part of the settlement it was agreed that $350,000 would be paid to Aetna as the net recovery on its lien for benefits already paid. This $350,000 was a net figure, arrived at after deducting from the lien amount statutory attorney fees that would have otherwise been due on the lien amount and after deducting a portion of the pending lien amount which Aetna agreed to compromise in an effort to achieve the settlement.

The final order from which this appeal is taken requires Aetna to pay to an attorney for the conservator the sum of $20,678.65, the amount expended by the conservator’s attorneys in preparation and presentation of the case. This order also calculates the amount of the proceeds that should be paid to the conservator as follows:

U

Settlement
$2,100,000.00
Deductions:
(a) Pay to [Aetna] in accordance with its agreement to accept $350,000.00 net on its lien for $540,000.00 already expended
350,000
(b) Pay Plaintiff’s attorneys’ fees
700,000
Net Proceed to the Conservator
$1,050,000.00”

The order also fixes this $1,050,000 as the amount of credit to which Aetna was entitled against the payment of future workers’ compensation payments. The order states: “[A]ll compensation payments by [Aetna] to the disabled person shall be suspended, and no payment shall be necessary to be made by [Aetna] to the disabled person, until the amount of expenses for compensation and care and maintenance of the disabled person equals the amount of the net sum recovered by the Conservator on behalf of the disabled person, namely $1,050,000.00, when at which time [Aetna] will resume payments as provided in the decision of the Industrial Commission in the proceedings entitled, ‘Cora Lee Lewis, guardian of the Estate of Kenneth Brock v. Bennett Industries, Industrial Commission No. 74 WC 11450,’ ***.”

Aetna contends that the circuit court’s calculation of the amount of the credit against future workers’ compensation benefits is improper. In doing so, it relies upon Jones v. Melroe Division, Clark Equipment Co. (1981), 102 Ill. App. 3d 1103, 430 N.E.2d 1385, and that court’s construction of section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b)). Section 5(b) provides:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement. ’ ’

Applying the formula for calculation of the credit involved in Jones (102 Ill. App. 3d 1103, 1109-10), Aetna computes the credit to which it is entitled as follows:

“GROSS REIMBURSEMENT
1. Settlement amount $2,100,000.00
2. Benefits paid 539,929.36
Gross Reimbursement 2,639,929.36
DISTRIBUTION OF CREDIT
1. Gross Reimbursement 2,639,929.36
2. Credit for repayment of benefits paid 539,929.36
Gross Credit 2,100,000.00
3. Attorney’s fees at 25 per cent 525,000.00
[2,100,000 x .25 = 525,000]
4. Litigation costs 0.00
(paid by Intervenor, thus the Conservator is not entitled to credit for this)
Net Credit $1,575,000.00”

We find two errors in this formula for computation of Aetna’s credit. First, in our opinion, “benefits paid” should not be added to “settlement amount” in determining “gross reimbursement.” Although the Jones formula requires such an addition, we can see no reason either in the words of section 5 or in logic to add the benefits paid to the settlement amount. Rather, the statute requires that “from the amount received by such employee or personal representative [from a judgment or settlement] there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).) Applying this language to the instant case results in the following calculation:

Settlement amount $2,100,000.00
Less: Workers’ compensation already paid 539,929.36
Gross credit to Aetna for
compensation to be paid (before
attorney fees and costs). $1,560,070.64

In this manner, dollars reimbursed to Aetna for workers’ compensation benefits already paid are not included in the amount of the credit to Aetna against payments to be made by it in the future. Accordingly, we believe that Aetna’s formula incorrectly computes the amount of the credit on the basis of a figure which adds benefits already paid to the settlement amount.

Secondly, we believe that Aetna’s formula does not subtract the proper amount of attorney fees from the “gross credit.” As noted above, Aetna had a lien for workers’ compensation benefits already paid of $539,929.36. It agreed to accept $350,000 as its recovery on that lien, and this $350,000 figure was arrived at, in part, by deducting from the lien amount statutory attorney fees that would have otherwise been due on the lien amount. Thus, Aetna, in effect, has already paid attorney fees on $539,929.36 of the $2,100,000. Therefore, the gross credit should only be reduced by statutory attorney fees on $1,560,070.64, the difference between $2,100,000 and $539,929.36.

Accordingly, for the reasons stated above, we cannot accept Aetna’s formula for the computation of the credit against future workers’ compensation benefits.

Before stating what we believe is the proper formula for determination of the net amount of Aetna’s credit, we address the other issues raised by Aetna. Aetna argues that the trial court’s calculation of the credit to which it is entitled erroneously imposes a 33Vs% attorney fee upon Aetna. Actually, the circuit court’s computation of the credit did not expressly consider the conservator’s attorney fees. The circuit court’s order merely states that the credit to Aetna is equal to the net proceeds received by the conservator as a result of the settlement. The amount of the net proceeds, however, was determined, in part, by subtracting the conservator’s attorney fees from the settlement amount. In the circuit court’s computation, $700,000 in attorney fees were subtracted from the settlement of $2,100,000. Seven hundred thousand dollars is clearly 33⅓% of the settlement figure.

Section 5(b) clearly provides: “[W]here the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).) Further, the words “in the absence of other agreement” have been construed by Illinois courts to refer to an agreement between the employer-intervenor and the employee or his attorney. (Vandygriff v. Commonwealth, Edison Co. (1979), 68 Ill. App. 3d 396, 397, 386 N.E.2d 318; Kimpling v. Canty (1973), 13 Ill. App. 3d 919, 922, 300 N.E.2d 839; Railkar v. Boll (1970), 125 Ill. App. 2d 203, 206, 260 N.E.2d 851.) In the instant case, there was no such agreement between the employer or Aetna and the conservator or her attorneys. Thus, the only basis upon which the conservator’s attorneys can recover attorney fees from Aetna is section 5 of the Workers’ Compensation Act, and that statute specifically provides for an attorney fee of “25% of the gross amount of such reimbursement.”

A 25% statutory attorney fee is appropriate in the instant case. Twenty-five percent of the settlement amount of $2,100,000 is $525,000. This $525,000, however, must be allocated between the amount reimbursed to Aetna for benefits already paid and the credit to Aetna against the payment of future workers’ compensation benefits. Thus, the attorney fees on the amount reimbursed to Aetna, $539,929.36, are $134,982.34, and the attorney fees allocable to the credit are $390,017.66.

Aetna’s last contention is that the circuit court’s order improperly requires it to pay the litigation costs. We agree with Aetna’s contention that the circuit court erred in requiring Aetna to pay all the litigation costs. Section 5(b) provides: “Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit.” Thus, the circuit court should have ordered Aetna to pay out of the money reimbursed to it its pro rata share of the litigation costs of $20,678.65. The pro rata litigation costs on the amount reimbursed to Aetna, $539,929.36, are $5,376.45. The remainder of the litigation costs, $15,302.20, should have been taken as a deduction in computing the amount of the credit to which Aetna is entitled.

In light of the aforementioned conclusions, we believe that the credit against the payment of future workers’ compensation benefits to which Aetna is entitled should be computed as follows:

Settlement amount $2,100,000.00
Less: Workers’ compensation already paid (includes 25% statutory attorney
fee of $134,982.34) 539,929.36
Gross credit to Aetna for
compensation to be paid 1,560,070.64
Less: Litigation costs allocable to $1,560,070.64 15,302.20
Less: 25% statutory attorney fees allocable to
$1,560,070.64 390,017.66 405,319.86
Net Credit $1,154,750.78

Accordingly, we reverse those parts of the order of the circuit court of Cook County that require Aetna to pay all the litigation costs and that determine the amount of credit to which Aetna is entitled, and we remand this matter to the circuit court with the instruction that it enter an order consistent with this opinion.

Reversed and remanded.

McNAMARA, P.J., and McGILLICUDDY, J., concur.

      $539,929.36 x.25 = $134,982.34.

      ($2,100,000 - 539,929.36) x .25 = $390,017.66. The sum of $390,017.66 and $134,982.34 is $525,000.

      . 539,929.36 4 2,100,000.00 = .26; $20,678.65 x .26 = $5,376.45.

      See note 3; 1.00 - .26 = .74; $20,678.65 x .74 = $15,302.20.


author: JUSTICE McGLOON

text:
    MICHAEL H. MINTON et al., Plaintiffs-Appellants, v. THE RICHARDS GROUP OF CHICAGO et al., Defendants—(International Decorating, Inc., Defendant-Appellee).
    First District (1st Division)
    No. 82—2152
    Opinion filed August 8, 1983.

      Uwe Brasch, of Schaumburg, for appellants.
    No brief filed for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

The plaintiffs, Michael H. Minton and Mary Minton, appeal from-an order of the circuit court of Cook County dismissing their amended complaint with prejudice. They contend that the trial court erred by ruling that they failed to state a cause of action against International Decorating, Inc., one of the defendants herein. This defendant did not file a brief, but we find that this does not prevent resolution of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Plaintiffs filed a complaint alleging that they contracted for the purchase of a new home to be constructed by the Richards Group of Chicago (RGC); that defendants PDS Construction, A & E Plumbing and International Decorating, Inc., worked on the home “under the supervision” of RGC; and that the premises constructed were uninhabitable and violated the implied warranty of habitability. Thereafter, on motion of the plaintiffs, RGC, PDS Construction and A & E Plumbing were dismissed as parties defendant.

The plaintiffs then filed an amended complaint alleging that International Decorating,- Inc., a corporation had entered into an agreement with RGC to paint the eaves and windows of plaintiffs’ new home, and that within 90 days after plaintiffs took possession of the premises pursuant to their agreement with RGC, the paint on the eaves and windows began to peel; that despite demands that the matter be corrected, no action had been taken to remedy the situation; and that RGC, a Delaware corporation, has since been dissolved. The amended complaint asked for judgment in the sum of $3,000 plus attorney fees and costs.

On motion of the defendant, International Decorating, Inc., the trial court struck the amended complaint and granted the plaintiffs 28 days within which to file a second amended complaint, which plaintiffs failed to do. Thereafter, the trial court dismissed plaintiffs’ amended complaint with prejudice.

Plaintiffs contend that the builder-vendor implied warranty of habitability against latent defects in a new house also applies to the subcontractors of the builder-vendor where the builder-vendor is dissolved and shows no assets.

The warranty of habitability is a creature of public policy and a judicial innovation that has evolved to protect purchasers of new houses upon discovery of latent defects in their homes. (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154.) The implied warranty of habitability is a separate covenant between the vendor and vendee which arises because of the unusual dependent relationship. (Herlihy v. Dunbar Builders Corp. (1980), 92 Ill. App. 3d 310, 415 N.E.2d 1224.) While this warranty has roots in the execution of the contract for sale, it exists independently and privity of contract is not required. The purpose of the warranty is to protect purchasers’ expectations by holding building-vendors accountable. Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324.

In Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 410 N.E.2d 902, this court extended the warranty of habitability between builder-vendors and purchasers to developer-vendors and condominium purchasers. In Redarowicz v. Ohlendorf, the supreme court extended the warranty of habitability to subsequent purchasers where there is a short intervening ownership by the first purchaser.

In the present case the record discloses that no builder-vendor to vendee relationship existed between plaintiffs and International Decorating. The plaintiffs allege that subsequent to the peeling of the paint on the eaves and windows of their new home, they informed RGC, through its representative, Joseph Mach, of the condition of the paint; that Joseph Mach informed them he would speak to International Decorating to remedy the situation; and that subsequent letters sent by the plaintiffs to International Decorating requesting that the matter be remedied were ignored.

This court is asked to extend the warranty of habitability to the subcontractors of a builder-vendor where the builder-vendor has been dissolved as an entity and is insolvent. Purchasers from a builder-vendor depend upon his ability to construct and sell a home of sound structure and his ability to hire subcontractors capable of building a home of sound structure. The plaintiffs here had no control over the choice of RGC to paint the eaves and windows of their home, and RGC was in the better position to know which subcontractor could perform the work adequately.

In this case we agree with the reasoning in Redarowicz that the purpose of the implied warranty is to protect innocent purchasers. For that reason, we hold that in this case where the innocent purchaser has no recourse to the builder-vendor and has sustained loss due to the faulty and latent defect in their new home caused by the subcontractor, the warranty of habitability applies to such subcontractor. We recognize that our opinion is contrary to Waterford Condominium Association v. Dunbar Carp. (1982), 104 Ill. App. 3d 371, 432 N.E.2d 1009, but that opinion was rendered prior to Redarowicz v. Ohlendorf.

The judgment of the circuit court of Cook County is therefore reversed, and the cause is remanded for further proceedings.

Judgment reversed; cause remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH ALEXANDER, Defendant-Appellant.
    First District (1st Division)
    No. 80—3115
    Opinion filed July 18, 1983.

      Steven Clark and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, the defendant, Kenneth Alexander, was convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11—1) and deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11—3) and sentenced to two concurrent 29-year terms. He contends on appeal that the trial court erred in precluding him from cross-examining the complainant concerning two prior allegations of rape which she made against other men. Also, he claims that the court abused its discretion in failing to order a psychiatric examination of the complainant because the evidence presented allegedly showed a compelling need for such an examination.

Pretrial Motions

Prior to trial, the defendant filed a motion requesting the court to order a psychiatric examination of the complainant. He offered two reasons in support of the motion. First, the complainant had filed rape charges against other men on two separate occasions. The defendant argued that the improbability of a 20-year-old woman having been raped on three separate occasions, coupled with the fact that the two prior charges did not result in convictions, served to raise the question of whether her present rape accusation was the product of a psychological disorder. Second, the defendant produced the complainant’s school records in an attempt to establish that she suffered from a mental or emotional condition which would affect her competency or credibility. These records, which were examined in camera by the court, revealed a series of incidents that ultimately led to the complainant’s expulsion from a Chicago-area university.

The school records indicate that on October 11, 1979, a university security officer observed the complainant running down the street, screaming and crying. She was taken to the student health clinic. A friend of the complainant explained that the complainant was upset because she learned that on the previous Monday she had been given drugs at a party and that a group of men and women had taken “sexual liberties” with her.

A report made by the dean of students revealed that on October 16, 1979, the dean informed complainant that the university was considering the cancellation of her registration due to the incident of October 11, as well as “various events that have occurred in the past two and a quarter years.” Complainant’s continued enrollment was conditioned upon her not engaging in any violent or frightening behavior; on seeing her counselor at least once a week; and at not having any private conversations with H.M., a male student who did not return her affection.

On April 28, 1980, the complainant disrupted a class when she struck a female student in the face and sprayed a substance in the face of H.M. When informed that her registration would be cancelled as a result of this incident, she began screaming and said that she would get a gun and kill H.M. and his new girlfriend. The complainant was sent to the hospital, and her mother was called to make arrangements to send her home.

In addition to the school records, defendant presented evidence that the complainant had brought rape charges against other men in the past. The first case occurred in New Mexico. In his brief before this court, defendant claims that the New Mexico case occurred three years prior to the incident at bar. The case was tried twice and each trial ended in a hung jury. The second case grew out of the October 9, 1979, incident mentioned in complainant’s school records. After a preliminary hearing, there was a finding of no probable cause.

After considering both the complainant’s prior allegations of rape and the information contained in her school records, the court denied the defendant’s motion for a psychiatric examination.

The defendant then requested a pretrial ruling as to whether he would be allowed to cross-examine the complainant concerning her two prior rape charges in order to impeach her credibility by showing a trait on her part to make unfounded accusations of rape. The court denied the motion on the grounds that the prior rape charges were irrelevant and that evidence of this nature is barred by the Illinois rape shield statute. Ill. Rev. Stat. 1979, ch. 38, par. 115 — 7.

Proceedings At Trial

The complainant testified that at 6 p.m. on January 3, 1980, she went to the Woodlawn Tap, where she met the defendant and another man, Larry Gause. She testified that defendant approached her and said that he knew a certain friend of hers. She joined them and remained in their company until the bar closed at 2 a.m.

When the bar closed, the defendant walked the complainant home, then asked if he could use the washroom in her apartment. She agreed and he stayed for a while to smoke a cigarette. When she went to let him out, he grabbed her arm and pulled her into the bedroom. She started screaming and he choked her with his hands. Defendant performed a deviate sexual act upon complainant and raped her. When he finished, he apologized and told her to put on her pajamas. The defendant told her that he had been in prison for rape and that he had been raped by 10 men. Forty-five minutes later, the defendant again raped the complainant and performed another deviate sexual act upon her after threatening her with a pair of scissors.

The complainant testified that when the defendant got up the second time, he used her telephone, which was next to the bed, to call an emergency health care unit. She heard him say that he was having an altercation with a girl and asked if there was someone who could talk to him. He held the complainant’s arms while he made the phone call. A half hour later he asked her if she remembered the phone number. She told it to him, and he again called the emergency health care unit. He hit her with the phone when she tried to scream into it, then forced her to lie down on the bed with him again.

Approximately an hour later, the defendant allowed her to use the washroom. She then started pushing him and told him to leave, and he ran out of the apartment. Shortly thereafter, at about 7 a.m., the complainant’s neighbor heard her crying and knocked at her door. She told the neighbor that she had been raped, and called the police. The complainant was taken to a hospital and examined. She testified that she had marks on her neck and chin and scratches on her arm, and that she could barely see out of her right eye where the defendant poked her during their struggle.

The neighbor corroborated the complainant’s testimony with respect to the injuries and the report of rape. It was stipulated that the doctor, who examined the complainant, would testify that she had a right corneal abrasion, tooth marks on her chin, and abrasions on her throat and left arm.

The defendant was arrested on January 4, 1980, in the waiting room of the Northwestern Memorial Hospital Institute of Psychiatry. A stipulation was entered that Dr. Ivanoff, a psychiatrist at the Billings Hospital Emergency Psychiatric Care Crises Center, would testify that at sometime between 5 and 6 a.m. on January 4, 1980, he received a call from a man who identified himself as Jackson. The man stated that he was having a dispute with a woman and the doctor advised him to come to the hospital between 7:30 and 8 a.m. It was further stipulated that the doctor would testify that on any given night he received numerous phone calls dealing with such conflicts.

The defendant testified that he saw the complainant in the Woodlawn Tap at approximately 6 p.m. on January 3, 1980. He stated that he had met her in the bar on a prior occasion and that he asked her to join him and his friend, Larry Gause. At one point during the evening she raised her skirt a foot above her knee and asked Gause if he thought her legs were pretty.

After leaving the bar, defendant walked the complainant home, and she invited him into her apartment. She changed into a blue pajama outfit and got him some orange juice from the kitchen. After showing him the refinishing she was doing on some baseboards, they sat on the sofa and talked. Defendant testified that they listened to records, although complainant denied owning a record player.

The defendant stated that he had intercourse with the complainant once, that she consented, and that no force was involved. At one point, she told that she had had sex 10 times and that four of those were rapes. Although there was a telephone near the bed, he did not make any calls. At about 5:30 a.m., the defendant left, telling the complainant that he would see her later. Defendant testified that she did not have any scars or other marks on her when he left. Defendant then testified that he had been convicted of rape in 1974 and had been out on parole for two months.

Larry Gause, a friend of the defendant, essentially corroborated his testimony as to what occurred at the Woodlawn Tap.

The court made a specific finding that the testimony of the complaining witness “with a few minor inconsistencies *** testified in a clear and convincing manner,” and that her testimony was corroborated by other witnesses. The court found that “very little, if any, credence or credibility *** can be given to Mr. Cause’s testimony as adduced at the trial.” The court also noted the inconsistencies between Cause’s testimony and that of defendant. The court found that the State had met its burden of proving defendant guilty of rape and deviate sexual assault.

The defendant first contends that the trial court erred in prohibiting him from cross-examining the complainant concerning her two prior allegations of rape. This specific issue has not been previously considered in Illinois.

While the general rule is that a witness’ credibility may not be impeached by specific acts of misconduct, many jurisdictions have made an exception where the complainant in a rape case has made prior false allegations of rape. (State v. Demos (1980), 94 Wash. 2d 733, 619 P.2d 968; Commonwealth v. Bohannon (1978), 376 Mass. 90, 378 N.E.2d 987; People v. Hurlburt (1958), 166 Cal. App. 334, 333 P.2d 82; State v. Baron (1982), 68 N.C. App. 150, 292 S.E.2d 741; State v. Nab (1966), 245 Or. 454, 421 P.2d 388; Annot., 75 A.L.R.2d 508 (1961); 65 Am. Jur. 2d Rape sec. 87 (1972).) These courts have recognized that where the defendant contends that the accusation of rape is untrue, the fact that the complainant has made similar false accusations against other men may reveal a trait on her part to make such charges, and consequently, tend to disprove the charge before the court. In many sex offense cases, the complainant’s credibility is of central importance. To prevent the defendant from fully attacking it would be to deny him the right to present a full defense and confront the witnesses against him. Commonwealth v. Bohannon (1978), 376 Mass. 90, 378 N.E.2d 987; State v. Nab (1966), 245 Or. 454, 421 P.2d 388.

Defendant contends that section 115 — 7 of the Code of Criminal Procedure, commonly referred to as the Illinois rape shield statute, does not- prevent inquiry into prior rape complaints for the purpose of showing a pattern of similar false accusations to cast doubt upon complainant’s veracity in accusing defendant. The Illinois rape shield statute provides in part:

“a. In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill. Rev. Stat. 1979, ch. 38, par. 115-7.

Defendant relies upon Bohannon which held that the Massachusetts rape shield statute does not bar the type of cross-examination sought here because “the proposed questions dealt with prior accusations of rape; they in no way sought to elicit a response concerning the complainant’s prior sexual activity or reputation for chastity.” 376 Mass. 90, 95, 377 N.E.2d 989, 991.

The State maintains that inquiry into the prior rape allegations is barred by the rape shield statute and that even if such inquiry is permissible, the allegations in the case at bar were never proved false. We find that we need not determine whether the Illinois rape shield statute would permit, in the proper case, cross-examination on prior false accusations of rape, since it is our decision that the proffered evidence is inconclusive on the issue of the complainant’s credibility and, therefore, should be excluded as irrelevant.

Defendant recognizes that although other jurisdictions have found that prior false accusations of rape may be admitted,, none have extended that rule to the situation where the prior charges were not shown to be false. The cases cited by defendant have all required that the defense show that either the complaining witness admitted the falsity of the prior charges or that they have been disproved. (State v. Baron (1982), 68 N.C. App. 150, 292 S.E.2d 741 (evidence allowed that 13-year-old complainant in the past had made numerous unlikely rape accusations against relatives and neighbors); Commonwealth v. Bohannon (1982), 385 Mass. 753, 434 N.E.2d 163 (hospital records stating that complainant made a number of “unsubstantiated and apparently false accusations of rape” were excluded as too vague and incomplete to demonstrate falsity of prior rape charges); People v. Hurlburt (1958), 166 Cal. App. 334, 333 P.2d 82 (complainant admitted to others that she had lied about earlier rape reports).

In a case similar to the case at bar the defendant sought to impeach the complainant with evidence that she had made two prior allegations of rape. (State v. Demos (1980), 94 Wash. 2d 733, 619 P.2d 968.) After an initial police report was made regarding the first incident, the complainant moved to another State and the case was placed on inactive status. The second incident was never prosecuted because of the results of a polygraph test taken by the complainant. The Washington Supreme Court refused to allow in evidence of these prior accusations, holding that they were not proved false and, therefore, were irrelevant.

In the present case, the prior accusations of rape were not proved false. One of the prior rape accusations terminated in a finding of no probable cause; the other culminated in two hung juries. The intrinsic veracity of the complainant’s accusations should not be confused with the inability of the State to meet its burden of proof for a criminal conviction. There is nothing in the record to support the inference that these charges were unsubstantiated or to show that they were false in any manner. We note that in enacting the rape shield statute, our legislature intended to eliminate the cruel and abusive treatment of rape victims at trial by precluding the admission of irrelevant material concerning the “intimate details of their past sexual activity.” (People v. Cornes (1980), 80 Ill. App. 3d 166, 175, 399 N.E.2d 1346, 1353.) A policy of excluding irrelevant material which potentially may be introduced to harrass a complaining witness in a rape case supports the trial court’s decision to prohibit introduction of this evidence. The trial court did not err in ruling that evidence of prior rape complaints by the victim are inadmissible where defendant was unable to show that the prior complaints were unfounded.

Defendant next contends that the trial court erred in denying defendant’s motion for a psychiatric examination of the complaining witness to ascertain if she had a mental or emotional condition that would effect her competency or credibility. Initially, in support of his motion defendant presented evidence of the two prior rape charges. Two separate trial judges denied defendant’s motion. Defendant then subpoenaed the complainant’s school records. After an in camera inspection of these records, the trial court again declined to order a psychiatric examination.

It is established that a trial court, in exercise of its discretion, may order the psychiatric examination of the complaining witness in a sex offense case when the defendant presents a compelling reason therefor (People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367). We have reviewed the record of this case and the complainant’s school reports and are unable to say that the able trial court, in denying the motion, abused its discretion.

Accordingly, for the reasons stated herein, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE PERLIN

text:
    CLAUDE D. BAILEY, JR., Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—141
    Opinion filed July 26, 1983.

      Samuel L. Evins, of Richman and Evins, Ltd., of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Law Offices of John B. Grogan, Ltd., of Chicago (Susan Gunty, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Claude D. Bailey, Jr., brought an action against defendants, Edward O’Reilly, a Chicago police officer, and the city of Chicago, to recover damages for personal injuries he sustained when he was allegedly struck in his left eye by Officer O’Reilly. In a jury trial, a verdict was returned for defendants. Judgment was entered on the verdict and plaintiff’s post-trial motion was denied.

On appeal, plaintiff contends that the trial court committed reversible error in permitting defense counsel to cross-examine plaintiff by innuendo on inflammatory and irrelevant matters; that the jury was not properly instructed; that defense counsel improperly commented on plaintiff’s failure to call two witnesses; and that the verdict was against the manifest weight of the evidence. For the reasons which follow, we reverse the judgment and remand the cause for a new trial.

This action arose out of an incident between plaintiff and defendant O’Reilly which took place on May 18, 1973. As a result of that incident, plaintiff’s left eye was surgically removed. Plaintiff testified that he was admitted to the psychiatric unit of St. Joseph’s Hospital on four occasions between 1977 and 1980 because he was “depressed” about losing his eye. The principal issues in this case were how plaintiff was injured and whether his subsequent psychological problems resulted from and were attributable to the loss of his eye. Plaintiff’s initial contention concerns the latter issue.

Plaintiff argues that the trial court committed reversible error in permitting defense counsel to cross-examine plaintiff by innuendo on inflammatory and irrelevant matters. Our careful review of the record compels us to agree.

On cross-examination, defense counsel questioned plaintiff extensively about his alleged use of cocaine, “uppers” and “downers,” LSD, THC and marijuana. While plaintiff did not explicitly deny that he had ever used these substances, he did expressly deny that he had used them “for years.” Plaintiff also denied that he had told any of the doctors who treated him that he had used any of these drugs “for years.” Defendants failed to prove that plaintiff in fact had used drugs “for years” or had told anyone that he had used drugs “for years.” In our judgment, this was error.

Assuming that plaintiff’s alleged chronic abuse of drugs was material to some issue in this case, it was incumbent upon defendants, in light of plaintiff’s answers on cross-examination, to introduce extrinsic evidence that plaintiff had used or had admitted using drugs “for years.” (See People v. Purrazzo (1981), 95 Ill. App. 3d 886, 896-97, 420 N.E.2d 461, and the cases cited therein.) The practice of laying a foundation for impeachment and then failing to follow up by proof has been strongly criticized. (Geisberger v. Quincy (1972), 3 Ill. App. 3d 437, 441-42, 278 N.E.2d 404.) The reasons for this criticism were fully stated in Gordon v. Checker Taxi Co. (1948), 334 Ill. App. 313, 79 N.E.2d 632:

“The questions propounded on cross-examination of plaintiff *** were proper if asked in good faith for the purpose of impeachment in the event of denial, and had objection been made the court would be obliged to overrule the objection. Proof of the facts involved in such questions would obviously affect plaintiff’s present claim for injuries, pain and suffering. Innuendoes involved in such questions are sometimes more damaging than an effort to prove the impeaching facts. When no witness is offered to impeach plaintiff and, therefore, no opportunity for cross-examination presented, the prejudicial effect springing from such questions cannot always be overcome, and results in an unfair trial to a plaintiff. If, under the guise and pretense of laying a foundation for impeachment, a plaintiff could be asked questions that would affect her credibility, such as a supposed former conviction for a felony [citations], where production of the record of conviction is not required, and no proof made or offered, when there is a denial of the fact; or suppose questions were asked concerning alleged conversation with others, which involves very damaging supposed admissions against interest, and though denied by the witness, no proof is offered to impeach, such type of cross-examination, if approved, could succeed in defeating many a meritorious cause.” 334 Ill. App. 313, 318-19.

Another instance of cross-examination that was not supported by competent evidence concerned plaintiff’s relationship with a 12-year-old girl. Defense counsel repeatedly asked plaintiff whether he had “harassed,” “grabbed” or “chased” this “little girl” just before his second hospitalization in April of 1979. Plaintiff denied these accusations. Defense counsel also inquired whether plaintiff had told two police officers what he “did to that little girl.” Counsel interrupted plaintiff and did not permit him to complete his answer. Plaintiff admitted that an officer took him into custody on April 17, 1979, because of an incident involving the young girl.

Despite his assurances to the court and plaintiff’s counsel “to tie it all up,” defense counsel failed to produce the police officers to testify about the alleged incident between plaintiff and “the little girl.” Nor did he offer any expert testimony attributing plaintiff’s psychological problems or his second hospitalization to the “incident” with “the little girl.”

Defendants, however, assert that the incident was established by a defense witness’ reference to a notation in one of plaintiff’s hospital records that plaintiff “was accused by a neighborhood lady of accosting her fourteen-year-old daughter.” Plaintiff’s hospital records were not introduced into evidence and the physician to whom plaintiff allegedly made the statement did not testify. Citing Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E .2d 1322, defendants argue that the witness could rely on the notation in the records as substantive evidence that the incident occurred. In our judgment, defendants have misread Wilson.

In Wilson, the supreme court adopted Federal Rule of Evidence 703, which permits an expert to give his opinion on the basis of facts which have not been admitted into evidence, if such facts are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject (whether or not the witness may be categorized as a treating or a nontreating expert); and Federal Rule of Evidence 705, which permits an expert to give his opinion without initially disclosing the facts underlying it (unless the court requires otherwise) and which provides that he may be required on cross-examination to disclose the underlying facts. 84 Ill. 2d 186, 192-96.

As the appellate court has noted, Wilson “deals with testimony of experts based upon medical records not with the admission of the records themselves.” (Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 391, 420 N.E .2d 232.) “The medical reports compiled by other, non-testifying individuals which the defendant’s expert witness relied upon remain inadmissible hearsay evidence on direct examination.” (People v. Clemons (1979), 72 Ill. App. 3d 860, 865, 391 N.E.2d 128.) As one commentator has observed, “[tjhere is a clear distinction between data that is trustworthy enough to qualify as an exception to the hearsay rule, and data that is inadmissible but usable by experts in arriving at an opinion because it is relied upon by experts in the field.” Spector, People v. Ward: Toward a Reconstruction of Expert Testimony in Illinois, 26 De Paul L. Rev. 284, 291 (1977).

Defendants, however, claim that they were prevented from having the police officers testify about plaintiff’s incident with the little girl. In his offer of proof, defense counsel informed the trial court that one of the officers would testify that he arrested plaintiff; that plaintiff told him the young girl was his girlfriend; that plaintiff was taken to the police station and charged with battery; and that plaintiff did not appear to exhibit any fear of the officers. The evidence referred to in the offer of proof, which offer was denied, would not have established that plaintiff had in fact “harassed,” “grabbed,” or “chased” the girl, or that plaintiff had told the officers what he “did to that little girl,” as defense counsel suggested in his cross-examination of plaintiff. We note further that defense counsel informed the court that he did not “care to go into” the incident.

Finally, defense counsel cross-examined plaintiff about an incident in which plaintiff allegedly beat his father prior to plaintiff’s third hospitalization:

“Q: Is that the time you beat up on your father?
A: No, I didn’t beat up on my father.
Q: Well, you hit him; didn’t you? You injured his eye; didn’t you?
A: No, I didn’t injure his eye. It was an accident.”

The only evidence that plaintiff had struck his father was contained in hospital records which were not introduced into evidence. The physician to whom plaintiff allegedly made this admission did not testify. Thus, contrary to defendants’ argument, it was improper to consider the reference in the hospital record to this incident as substantive evidence that the beating occurred. Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 391, 420 N.E.2d 232; Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 1097, 410 N.E.2d 266; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 287-88, 387 N.E.2d 1071; LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 1017, 343 N.E.2d 65; Stewart v. DuPlessis (1963), 42 Ill. App. 2d 192, 200, 191 N.E.2d 622.

Defendants’ cross-examination of plaintiff portrayed him to the jury as a chronic drug abuser, a child molester and a parent beater. Despite plaintiff’s explicit denials, no competent evidence was presented to prove any of these accusations. In our judgment, these unsupported insinuations were extremely prejudicial to plaintiff’s general credibility and deprived him of a fair trial. We therefore conclude that plaintiff is entitled to a new trial. In light of this disposition, we need not reach plaintiff’s remaining contentions.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DOWNING, P.J., and HARTMAN, J., concur.


text:
    HOPE DELIVERANCE CENTER, INC., Plaintiff-Appellee, v. ZONING BOARD OF APPEALS OF THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—568
    Opinion filed July 22, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellants.
    George S. Lalich and Daniel E. Radakovich, both of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

This is an appeal from an order of the trial court reversing the decision of defendant Zoning Board of Appeals of the city of Chicago (Zoning Board) denying the application of plaintiff Hope Deliverance Center, Inc., for a special use. The issue presented is whether the denial of a special use was against the manifest weight of the evidence produced at the hearing before the Zoning Board, particularly, whether plaintiff established: (1) that a church is necessary for the public convenience at that location; (2) that the proposed use is designed, located and proposed to be operated to protect the public health, safety and welfare; and (3) that the special use will not cause substantial injury to neighborhood property values. We affirm.

Plaintiff purchased the property at 1700 West 87th Street, Chicago, Illinois (the property), which property is presently zoned as a B2-1 restricted retail district, and subsequently applied to the Zoning Board for a special use permit to locate and establish a church in the existing one-story brick building. The commissioner of the department of planning of the city of Chicago, pursuant to ordinance (Municipal Code of Chicago 1981, ch. 194A, arts. 11.4—1, 11.10—2), in a written report to the Zoning Board stated that the establishment of a church at the location appears necessary for the public convenience and that it will not cause substantial injury to the value of the property in the neighborhood and recommended that the special use permit be approved. The zoning administrator thereafter rendered a decision wherein the application was not approved as not in conformance with the zoning ordinance, specifically chapter 194A, section 8.4—1 (Municipal Code of Chicago 1981, ch. 194A, art. 8.4—1). Pursuant to plaintiff’s appeal from the zoning administrator’s decision, the Zoning Board held a public hearing at which the following evidence was presented.

A former owner of the property testified that the property had been used as a medical center from 1953 through 1968 and had been vacant from 1968 to 1980 despite more than 100 attempts to sell it. Area residents testified that the vacant property attracts vandals and provides a hiding place for persons engaging in criminal conduct, that the building is an “eyesore” and that they favor using the property as a church. A local businessman testified that the use of the property as a church would cause no injury to the property values in the area, nor would it hurt neighborhood businesses. Four area ministers attested to the religious and social contributions provided the community by plaintiff.

Reverend Jackie Jordan, pastor of plaintiff church, testified that for the past eight years plaintiff has been a “store-front church” located approximately two blocks from the property. This will not be a “store-front church.” The plans submitted show that the renovation of the property will not change the outward appearance or the basic architectural style of the building. The church will contain 163 seats and 18 parking spaces will be provided on site. The principal activities of the church are scheduled to take place on Sundays and on Monday and Friday evenings. Reverend Jordan entered into evidence a petition containing the signatures of 288 area residents, letters from nine community churches, and the signatures of 35 local businessmen supporting the granting of the special use permit.

Scott W. Tyler, a licensed appraiser and real estate broker whose qualifications were stipulated and not disputed, testified that a number of vacant lots as well as vacant and abandoned buildings are located on 87th Street in the area of the property. In his opinion establishing a church on the property would not substantially injure the value of neighborhood property.

Mrs. Thomas, who identified herself as a community spokesperson, opposed the granting of the special use permit. She testified that the community wants to maintain the business nature of 87th Street and submitted to the Zoning Board a petition containing the signatures of 161 community residents opposed to the special use permit. She testified that the community is presently attempting to have a public library located on the property. A similar effort four years ago was unsuccessful.

Irving Larson, local businessman and area resident, opposed the special use permit because of traffic congestion in the immediate area. He testified that only one building is vacant on 87th Street in the vicinity of the property. John Sypniewski, area resident, opined that the building is architecturally unsuitable for a church. Area resident Irene Scott favored more business on 87th Street and testified that 87th Street is congested when she drives home from work each day at 5 p.m. The alderman of the ward within which the property is located testified that there is strong community opposition to the special use permit. Finally, area resident David Brian expressed his opinion that more businesses would be locating on 87th Street.

Following the hearing the Zoning Board denied plaintiff’s application for a special use permit based upon the following findings:

“*** that a church at this location is not compatible with the business character of W. 87th Street and would cause substantial injury to the value of other business property in the neighborhood; that the proposed use is not in the public interest as indicated by representatives of the community who appeared at the hearing and voiced opposition to the establishment of a church at this location and presented a petition to the board with 161 signatures in opposition to the proposed use ***.”

On plaintiff’s action for administrative review, the trial court adjudged the decision of the Zoning Board to be against the manifest weight of the evidence and contrary to the law and, therefore, reversed the decision of the Zoning Board. The Zoning Board appeals.

Opinion

The Zoning Board contends that plaintiff failed to prove that the proposed use would comply with the standards set forth in the Chicago zoning ordinance for the allowance of a special use permit and, therefore, the trial court erred in reversing its decision. On administrative review the findings and conclusions made by the administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 3—110.) A reviewing court may not reweigh the evidence but may determine only whether the agency’s findings and decisions are against the manifest weight of the evidence. (South Side Move of God Church v. Zoning Board of Appeals (1977), 47 Ill. App. 3d 723, 365 N.E.2d 118.) If the findings are supported by competent evidence, the decision will be affirmed. St. James Temple of the A.O.H. Church of God, Inc. v. Board of Appeals (1968), 100 Ill. App. 2d 302, 241 N.E.2d 525.

The Chicago Zoning Ordinance, in pertinent part, provides:

“11.10 — 4 Standards. No special use shall be granted by the Zoning Board of Appeals unless the special use:
(1) a. Is necessary for the public convenience at that location;
b. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and
(2) Will not cause substantial injury to the value of other property in the neighborhood in which it is to be located; and * * *
(4) Such special use shall conform to the applicable regulations of the district in which it is to be located.” Municipal Code of Chicago 1981, ch. 194A, art. 11.10—4.

An applicant for a special use permit has the burden of proving that the proposed use meets all the standards required by the controlling zoning ordinance. (Racith Corp. v. Zoning Board of Appeals (1981), 95 Ill. App. 3d 716, 420 N.E.2d 630.) However, the failure of the applicant to submit sufficient evidence to satisfy one or more requirements of the ordinance will not necessarily result in the denial of the proposed use if such prohibition bears no real and substantial relation to the public health, safety, morals or general welfare (Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 182 N.E.2d 722) and if there is no adverse effect on adjacent properties. South Side Move of God Church.

The Zoning Board first argues that plaintiff offered no evidence to show that this particular locale was assigned to plaintiff’s ministry, that the members of its congregation live within close proximity to the property, or that plaintiff attempted to locate its church in a zoning district where churches are permitted uses. Although such factors have been relied on as tending to show that a special use is necessary for the public convenience at a particular location (see South Side Move of God Church; St. James Temple of the A.O.H. Church of God, Inc. v. Board of Appeals (1968), 100 Ill. App. 2d 302, 241 N.E.2d 525), they are not the only criteria for establishing compliance with the statutory standard.

The term “necessary” as used in the zoning ordinance does not mean “absolutely necessary” but has been construed to mean “expedient” or “reasonably convenient” to the public welfare. (Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 85 N.E.2d 43; Foster & Kleiser, Division of Metromedia, Inc. v. Zoning Board of Appeals (1976), 38 Ill. App. 3d 50, 347 N.E.2d 493.) Plaintiff church existed in the vicinity of the property for eight years prior to the proposed relocation which prompted its seeking the instant special use permit. Its long association with the community coupled with the benefits which have accrued to the community as a result of such presence is evidence that it is necessary or reasonably convenient to the public for the church to remain in the community. Plaintiff’s failure to adduce specific evidence regarding the necessity for locating at the particular site for which the special use permit is sought does not bar the granting of the special use permit, however, as such necessity can be inferred from the record. It is undisputed that the presence and work of plaintiff church has benefited the community. By its proposed relocation plaintiff seeks to improve its facility so that it may better serve the community and establish a dignified place of worship. The particular location for which the special use permit is sought is suitable for such purposes. Thus, the evidence introduced by plaintiff is sufficient to show that the special use is necessary for the public convenience at the location of the property.

The Zoning Board next contends that locating a church on the property will result in increased congestion regarding traffic and parking on 87th Street which will threaten the public health, safety and welfare. It is recognized that traffic and parking are important factors to be considered in determining whether the public safety and welfare are protected. (St. James Temple of the A.O.H. Church of God, Inc. v. Board of Appeals (1968), 100 Ill. App. 2d 302, 241 N.E.2d 525.) However, the chairman of the Zoning Board at the hearing stated that on the testimony presented the parking provided on site is adequate as a matter of law and, in fact, the sufficiency of such parking was not an issue. The only evidence of increased traffic congestion was the opinion testimony of two area residents. Their reports of congestion on 87th Street related to hours which typically are heavy traffic periods. Such testimony was speculative at best regarding the probability of increased traffic congestion resulting from plaintiff church and disregarded the fact that none of the activities at the church are scheduled for the hours during which heavy traffic was reported. Though we acknowledge that a church in any location will add to traffic and parking congestion during hours of worship, increased traffic arguments founded upon similar evidence have been rejected by the Illinois Supreme Court as a basis for denial of a special use permit. (See Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 182 N.E.2d 722; see also La Salle National Bank v. Village of Skokie (1962), 26 Ill. 2d 143, 146, 186 N.E.2d 46, 48.) Therefore, the increased traffic congestion shown by the evidence here presented is an insufficient basis for denying the instant special use.

As evidence that the special use is so designed, located and proposed to be operated that the public health, safety and welfare will be protected, plaintiff offered testimony that occupancy of the property will eliminate vandalism and the occupied property will no longer be available as a refuge for persons engaged in criminal conduct. The Zoning Board argues that the public health, safety and welfare would be similarly protected by any occupancy of the property and, therefore, plaintiff failed to meet its burden of proof in that it did not prove that it could better protect the public health, safety and welfare than could a business use. Such argument is founded on a standard not contained in the statute and is unpersuasive. It is indisputable that the elimination of a site of criminal activity within the neighborhood is protective of the public health, safety and welfare. There is no requirement that the special use afford a greater degree of protection than would be afforded by a use for which the property is zoned. We find, therefore, that the evidence presented by plaintiff satisfies the second requirement.

Finally, the Zoning Board argues that the special use will cause substantial injury to neighborhood property values. An expert witness testified, however, that establishing a church on the property will not substantially injure the value of neighborhood property and plaintiff introduced evidence demonstrating that 35 local businessmen favored allowance of the special use. The only contrary evidence is the testimony of area residents that they believe that the allowance of the special use will have a deleterious effect on property values and that they prefer to have a business locate on the property. Use of the property cannot be restricted or limited by a zoning ordinance merely because neighboring property owners so desire, or because they think such restrictions might protect the value of their residences. (Regner v. County of McHenry (1956), 9 Ill. 2d 577, 138 N.E.2d 545; LaSalle National Bank v. County of DuPage (1977), 54 Ill. App. 3d 387, 369 N.E.2d 505.) The testimony of the expert witness was uncontradicted except for the testimony of area residents as to their preferences, which testimony is not a sufficient basis for restricting plaintiff’s use of its property. On this record the Zoning Board was, therefore, not justified in finding that the special use would cause substantial injury to the value of other business property in the neighborhood.

By our decision here we do not hold that a church can locate anywhere or that, once established in a neighborhood, it can relocate within that neighborhood without regard to zoning regulations. The location of churches is a proper subject for regulation by zoning ordinance (Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 182 N.E.2d 722; Lubavitch Chabad House of Illinois, Inc. v. City of Evanston (1982), 112 Ill. App. 3d 223, 445 N.E.2d 343) and each case of this kind must be decided on its own facts and circumstances (LaSalle National Bank v. County of Kendall (1977), 55 Ill. App. 3d 219, 370 N.E.2d 1283). On the evidence here presented we find that plaintiff met the standards of the special use ordinance and, therefore, the trial court did not err in reversing the decision of the Zoning Board as against the manifest weight of the evidence.

For the reasons stated above, the judgment of the circuit court reversing the order of the Zoning Board is affirmed.

Affirmed.

WILSON, P.J., and O’CONNOR, J., concur.