author: JUSTICE TRAPP

text:
    GARY H. FINKE et al., Plaintiffs-Appellees, v. ELMER H. WOODARD, Defendant-Appellant.
    Fourth District
    No. 4—83—0328
    Opinion filed March 27, 1984.

      Raymond R. Kimpel, of Summers, Watson & Kimpel, of Champaign, for appellant.
    Carl M. Webber, of Webber & Thies, P.C., of Urbana, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

This action was brought by plaintiffs, Gary and Teresa Finke, to recover damages and an order of rescission as a result of defects in a new home built and sold by defendant Elmer Woodard. Among the issues to be considered in this appeal are whether plaintiffs’ suit is barred by section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214) or laches, whether plaintiffs are entitled to rescind the sale, and the appropriate measure of restitution following a rescission of the sale. We affirm the award of rescission, but reverse and remand this cause for appropriate findings on the proper amount of restitution to which plaintiffs are entitled.

At trial, plaintiffs testified that on April 23, 1977, they executed a purchase agreement with defendant for the sale of a new house under construction by him in Heather Hills subdivision near Champaign. Plaintiffs paid $52,050 for the house, moved in on June 16, 1977, and continued to occupy it at the time of trial. Plaintiffs testified that they began to experience problems with the home upon taking possession, leading them to file this lawsuit in which they sought recovery on theories of implied warranty of habitability, negligence, gross negligence, and fraud. The plaintiffs testified to a number of complaints within the home: the water conditioner was installed backwards causing filtering chemicals to be discharged, the dishwasher was improperly installed allowing water from the garbage disposal to drain into the dishwasher, a septic system malfunctioned forming a pool of effluent in the backyard, the interior walls of the house were weak and separated from the ceiling, nails continuously popped out in various locations in the house, doors would not close, a crack developed in the concrete floor of an outside storage shed, and a portion of the bathroom plumbing broke loose from its connection causing water damage to the floor and tile. The jury found for plaintiffs on theories of warranty, negligence, and gross negligence and returned a not guilty verdict on the fraud count. The jury also awarded plaintiffs both rescission of the sales contract and deed and damages.

Defendant’s first argument on appeal is that plaintiffs’ suit is barred by section 13 — 214(a) of the Code of Civil Procedure, which provides:

“Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(a).

Plaintiffs’ home was completed by June 16, 1977, and the original complaint was filed on July 7, 1981, well beyond the two years in which plaintiffs knew or reasonably should have known of the acts or omissions of the defendant as provided in that section. If this were the only circumstance to consider, then defendant’s argument would be well taken, but defendant fails to point out that the statute was amended after plaintiffs’ suit was filed.

Effective November 29, 1979, Public Act 81 — 1169 added section 21.3 of the former Limitations Act, the current section 13 — 214 of the Code of Civil Procedure. (1979 Ill. Laws 4480; Ill. Rev. Stat. 1981, ch. 83, par. 22.3.) At that time, Public Act 81 — 1169 provided in subsection (e) that “[t]he limitations of this section [current section 13 — 214] shall apply to all acts or omissions which occur on or after the effective date of this amendatory Act of 1979.” On July 7, 1981, plaintiffs filed their suit when the statute contained that section. On September 16, 1981, Public Act 82 — 539 deleted subparagraph (e) (1981 Ill. Laws 2709) and on July 1, 1981, Public Act 82 — 280 incorporated chapter 83 into chapter 110 of the new Code of Civil Procedure, erroneously including old subparagraph (e) (1981 Ill. Laws 1591). Finally, on July 13, 1982, the Revisory Act of 1982, Public Act 82 — 783, deleted subparagraph (e). 1982 Ill. Laws 397.

Thus, at the time plaintiffs filed their suit, former section 21.3 of the Limitations Act had a prospective application, applying to acts or omissions occurring after November 29, 1979. The acts or omissions at issue here, the improper construction of the home, occurred on or before 1977 and were outside of the plain language of that section. When plaintiffs filed suit, the only applicable limitation period was section 15 of the Limitations Act, which provided a period of five years for all civil actions not otherwise provided for. (Ill. Rev. Stat. 1979, ch. 83, par. 16.) To retroactively apply the deletion of subparagraph (e) as defendant urges, would result in the barring of plaintiffs’ action, a result which is clearly not permitted. As noted by the supreme court in Hupp v. Gray (1978), 73 Ill. 2d 78, 83, 382 N.E.2d 1211, 1213, and amendment which shortens a limitations period may not operate to divest a litigant of a cause of action if his suit has already been filed. We conclude that plaintiffs’ suit was not barred by section 13 — 214 of the Code of Civil Procedure.

Although plaintiffs’ suit was brought within the five-year limitations period, defendant next argues that the equitable remedy of rescission is not available because plaintiffs failed to timely assert this claim earlier. Plaintiffs’ original complaint, filed on July 7, 1981, sought damages for the various defects and on July 30, 1982, plaintiffs were granted leave to amend their complaint to seek a claim of rescission without objection by the defendant. The motion for leave to amend as well as testimony at trial indicates that the addition of this claim resulted from an opinion of plaintiffs’ expert that the problems plaintiffs were experiencing were not isolated defects but were interrelated complaints pointing out latent structural defects in the walls.

In Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341, the supreme court upheld a defense of laches in bar of plaintiff’s suit to quiet title to a mineral estate which was brought more than 18 years after plaintiff learned of his interest. The Pyle court noted that laches is defined as such delay in enforcing one’s rights as would work to the disadvantage of another. The doctrine is founded not merely upon the amount of time involved but is properly invoked where there has been some change of condition or circumstances of the property or the parties, making relief inequitable. Whether the delay is sufficient to constitute laches depends upon the circumstance of the case and requires an examination of when the party became aware of the reasons which would support the equitable remedy. In Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 388 N.E.2d 943, for example, the court upheld an order rescinding a stock sale agreement on the basis of fraud five years after the transaction, even though the claim for rescission was not made until after the close of evidence at trial. The court there noted that the plaintiff had not become aware of the defendant’s fraud or misrepresentation until the close of the evidence.

An examination of when plaintiffs became aware of the availability of the equitable remedy also requires some consideration of when a breach of contract will support an award of rescission. Among other grounds which can be used to support a claim of rescission, failure of consideration is a recognized basis for such a relief, but not every breach of contract will warrant this extraordinary remedy. In C.G. Caster Co. v. Regan (1980), 88 Ill. App. 3d 280, 285, 410 N.E.2d 422, 426, the court stated:

“ ‘[A] party may terminate or rescind a contract because of substantial nonperformance or breach by the other party.’ [Citation.] ‘A total breach of contract is a nonperformance of duty that is so material and important as to justify the injured party in regarding the whole transaction as at an end.’ (A. Corbin, Contracts sec. 946, at 925 (1952).) Whether or not a breach is material and important is a question of degree which must be answered by weighing the consequences of the breach in light of the actual custom of persons in the performance of contracts similar to the one involved in the specific case. A. Corbin, Contracts sec. 946, at 925 (1952).”

In Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154, an implied warranty of habitability was breached by a builder-vendor where plaintiff’s house was constructed with “substantial defects” requiring major amounts of work to repair. Although the house was habitable and not dangerously unsafe, the court allowed the buyers to rescind their contract and recover the value of labor and materials they supplied as well as their down payment. The Petersen court expressly noted that they were not deciding what the appropriate remedy would have been if the defects had not been discovered until after the deed had been delivered, but we do not interpret that case as precluding rescission where a house is discovered with substantial structural defects after the deed has passed to the buyer. The opinion did say, however, that “[t]he implied warranty arises with the execution of the contract and survives the delivery of the deed.” (76 Ill. 2d 31, 41, 389 N.E.2d 1154, 1158.) In the case at bar, for example, testimony was introduced that the cost of repairing the defective conditions complained of would come close to the original price of the house.

We conclude that the trial court correctly rejected defendant’s claim of laches. The plaintiffs testified that the cracks in the walls became progressively worse each year; they apparently did not realize the magnitude of the problems until the house was examined by a structural engineer in 1981 and 1982. The septic system was noticed to be deficient in 1978, and when plaintiffs informed defendant he attributed the problem to excessive groundwater and suggested that plaintiffs reduce the amount of laundry for a few weeks. On April 13, 1981, plaintiffs received a complaint regarding the septic system from the Illinois Department of Public Health notifying them that they had to take immediate action to correct a sewage eruption on their property. This evidence suggests that plaintiffs were not aware of the substantial problems until shortly before they amended their complaint to seek rescission, and we find no evidence of any prejudicial change in circumstance to warrant application of laches to bar plaintiffs equitable remedy.

The evidence also suggests that the breach of the implied warranty of habitability was substantial and justified rescissionary relief. Plaintiffs’ witness, John Frauenhoffer, a structural engineer, investigated the cause of the defects in the walls and he stated that they had not been secured and properly framed and that the ongoing movement of the walls would cause a softening of the structure. He stated that it was highly possible that a wall would fall out of the structure, making the home uninhabitable. Defendant did not present evidence refuting that plaintiffs experienced problems with the septic system, the water softener, the cracked floor in the storage shed, the wall/ceiling separation and the nail popping. Defendant’s subcontractor and defendant both testified that the wall/ceiling separation could be cured by covering it up with moulding and they both stated that the home was built in a commercially reasonably manner. An architect also testified for defendants that the house was more than commercially acceptable.

Plaintiffs presented evidence that the septic system installed by defendant’s subcontractor was inappropriate for the size of plaintiffs land and the type of soil. Plaintiffs performed percolation tests at the direction of the Illinois Department of Health which indicated that a seepage system septic system could not be used on their lot. Defendant’s subcontractor who installed the system performed similar tests with substantially different results and he stated that the system was installed in a proper manner.

Upon this conflicting evidence, we will not disturb the award. We agree that not every breach of an implied warranty of habitability is sufficient for an award of rescission, but the proof here shows a substantial breach of defendant’s contractual duty to construct a house reasonably fit for its intended use. Petersen.

Defendant also suggests that a fully executed contract may not be rescinded, citing Albers v. Continental Illinois Bank & Trust Co. (1938), 296 Ill. App. 596, 17 N.E.2d 67, and 12A Ill. L. & Prac. Contracts sec. 374 (1983). The latter encyclopedia merely cites Albers for its rule. In Albers a suit was brought by a receiver of a defunct bank to set aside a pledge of securities which covered a deposit by the defendant with the bank. The defendant argued that a fully executed contract (pledge agreement) could not be rescinded even though the agreement was ultra vires of the bank. The appellate court rejected this argument and pointed out that “[t]he rule that a contract once executed may not be rescinded by either of the parties is based upon the rule of pari delicto. In such a case the law will aid neither party to recovery anything. But this rule does not obtain where the attempt to recover is made by a receiver not in pari delicto.” (296 Ill. App. 596, 600-01, 17 N.E.2d 67, 69.) There is no suggestion by the defendant that plaintiffs are guilty of any conduct which would prevent them from seeking the aid of equity.

In Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 380 N.E.2d 1177, a fully executed real estate agreement was rescinded because of a mutual mistake of the parties concerning access to the real estate; in Pinelli a fully executed stock agreement was rescinded more than seven years after its execution because of fraudulent misrepresentation by the seller of the stock, and in C.G. Caster Co., a fully executed employment agreement was rescinded after its execution because of a substantial breach by the employer of termination provisions of the contract which justified the employee in disregarding a restrictive covenant provided for in the agreement. We find no support for defendant’s argument that a fully executed contract cannot be rescinded.

Defendant also claims that the trial court erred in submitting to the jury the issue of whether plaintiffs were entitled to rescind the sales agreement. Defendant suggests that the question of rescission was for the court and not the jury. We agree that there is no right to a jury trial on equitable issues (Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 199 N.E.2d 797), but it was not beyond the court’s power to submit this equitable question to the jury. Section 2— 1111 of the Civil Practice Law provides that the court may in its discretion direct an issue or issues to be tried by a jury, whenever it is judged necessary in an action seeking equitable relief. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1111; Fleming v. Fleming (1980), 85 Ill. App. 3d 532, 406 N.E.2d 879.) Section 2 — 614 of the Civil Practice Law provides that legal and equitable issues may be tried together, but such a procedure is limited to cases where no jury is employed. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 614.) Defendant has never made this argument in either the trial court or this court, however, and we decline to consider that section here.

Plaintiffs were entitled to seek both remedies, legal and equitable, even though they were inconsistent, unless it could be said that they had elected one remedy or the other. This doctrine of election of remedies, does not prevent a party from seeking relief on inconsistent remedies unless a party has formerly manifested an intent to seek one remedy and the defendant makes a substantial change of position in reliance upon that intention or a possibility of double recovery exists. (Altom v. Hawes (1978), 63 Ill. App. 3d 659, 380 N.E.2d 7.) As we have indicated in our discussion of laches, we find no change of position to create an estoppel here and find no abuse of discretion in submitting both the legal and equitable claim to the jury.

Defendant next charges that the jury instructions on rescission and elements of damage were improper because the damage instruction included improper elements of recovery and the rescission instruction did not adequately define the issues for the jury. These questions we treat together, since they point out the parties’ confusion in both the nature of the relief available in this case and the proper amount of recovery. Plaintiffs’ complaint sought recovery in warranty, and in tort, and yet each damage instruction was the same. The jury instructions for damages were unique and provided two options, either rescission and damages or damages. Part A provided for rescission and included damages for the fair market value of the house without defects, amounts plaintiffs paid to replace the sewage system and repair the bathroom and water conditioner, moving expenses, closing costs, percentage points, expert witness fees, and an amount to reflect the higher interest rate for financing a replacement house. Part B instructed the jury that if they did not award rescission, then plaintiffs sought damages for the reasonable expenses to make repairs for all of the defects, rent for substitute housing while repairs were being made, transportation costs, and cost for expert opinions. The trial court entered judgment upon the verdicts in the language “[¡judgment on remaining verdicts entered in favor of Plaintiffs *** in sum of $76,000 and upon such verdicts Plaintiffs granted rescission of contract.”

The purpose of a rescissionary award is to disaffirm the transaction of the parties and restore them to the status quo as it existed prior to the execution of the contract. (Luciani v. Bestor (1982), 106 Ill. App. 3d 878, 436 N.E.2d 251; Altom.) Where rescission is awarded then, the proper measure of recovery is restitution of the consideration and other benefits received by the parties under the contract. (.HaJcala.) We find it inconsistent to both disaffirm the transaction and yet at the same time award plaintiffs the fair market value of the home as it would have existed without defects. The proper measure of recovery should have been simply a return of the consideration and other benefits received by the parties under the contract. In Petersen, for example, the supreme court upheld an award of rescission of a real estate contract for a breach of an implied warranty of habitability and as a measure of restitution approved a return of plaintiffs’ down payment and the value of labor and materials supplied by them in the construction of the house. We conclude that the jury instruction on damages was erroneous in including those items referred to above. All plaintiffs should have received as their measure of restitution was the return of the purchase price and the costs they incurred in correcting the defective problems with the house and septic system.

We have predicated our analysis of the rescission remedy upon the count seeking this relief for a breach of the implied warranty of habitability as this is the only theory which supports the award. In Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324, the supreme court held that negligence liability was not intended to protect a purchase of a new home from economic loss caused by defects in the home, and we are aware of no authority allowing a purchaser to rescind a contract upon a theory of negligence. Thus, since we affirm the rescission award but find reversible error in the damage instructions, we remand this cause to the trial court to make findings on the appropriate amount of money required to return the parties to the status quo ante, including plaintiffs’ purchase price, and the amounts of money plaintiffs spent in correcting the defects in. the home and septic system.

Plaintiffs claim that the defendant has waived any claim that the jury instructions with regard to damages were erroneous because he does not argue on appeal that the verdict is excessive. (See Chicago City Ry. Co. v. Roach (1899), 180 Ill. 174, 54 N.E. 212; Campbell v. Chesapeake & Ohio Ry. Co. (1962), 36 Ill. App. 2d 276, 183 N.E.2d 736.) Campbell and Roach do indicate that errors in damages instructions will not be considered on appeal where there is no claim that the damages are excessive, but defendant here does suggest that the damages are excessive and we think that the prejudice to the defendant in including the above elements of damage as a measure of restitution is obvious.

We do agree with plaintiffs that the defendant has waived the argument that the jury was improperly instructed on the issue of rescission. Plaintiffs’ instruction on this issue told the jury that they could grant rescission if they found: (1) plaintiff had a right to expect to receive that for which they bargained; and (2) plaintiffs had bargained for a house reasonably fit for its intended use, not a house with defects plus damages. Defendant did not object to the wording of this instruction but merely claimed that “we don’t think rescission is a remedy available to the plaintiffs in this case under the evidence.” In brief, defendant merely states that “plaintiff did not adequately instruct or define the term rescission” without citation of any authority on this point. We do not believe, that this objection or argument in brief is sufficient to preserve the issue for review. It is often stated that reviewing courts are entitled to have the issues clearly defined and to be cited to pertinent authorities and are not a depository in which an appellate is allowed to dump entire matters of pleadings, court actions, arguments or research upon the court. (In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 288 N.E.2d 520.) Likewise, to preserve an objection as to an instruction one must set it forth with specificity to advise the trial court of the ground of complaint before ruling. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) Defendant’s general objection below and his failure to cite authority in his brief for the argument made here will not suffice to preserve this issue for our consideration.

Finally, we note the parties have argued extensively in their briefs as to whether the proper measure of damages in this case should have been the dimunition in fair market value as a result of the breach or the cost of repairing the defects. (See Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 430 N.E.2d 191; Kangas v. Trust (1982), 110 Ill. App. 3d 876, 441 N.E.2d 1271.) The cost of repair measure of damages was included in the jury instruction as an alternative measure in the event the jury did not recommend rescission. Since the jury recommended rescission, the trial court accepted their verdict, and we have affirmed this remedy, those questions as to what the proper measure of damages should be is moot. The only remaining question is the appropriate amount of restitution to which plaintiffs are entitled to return them to the status quo ante.

For the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed in part, reversed in part and remanded for a hearing on the proper amount of restitution required.

Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion.

MILLS, P.J., and WEBBER, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SAUNDERS, Defendant-Appellant.
    Second District
    No. 82—681
    Opinion filed March 22, 1984.

      Peter B. Nolte, of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, James Saunders, was charged by information in Winnebago County on January 27, 1982, with one count each of three Class X felonies: home invasion, rape, and deviate sexual assault. (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 11, 11 — 1, 11 — 3.) He was convicted by a jury of all three offenses, and he was sentenced to three concurrent terms of 40 years in the Department of Corrections.

The defendant raises three issues on appeal: (1) whether he was denied his constitutional right to reasonable bail which infringed on his ability to prepare a defense; (2) whether he was deprived of a fair trial due to improper cross-examination by the court and prosecutor, and improper closing argument; and (3) whether the court abused its discretion in permitting impeachment of the defendant with a seven-year-old conviction for attempted rape.

At the time of the offense on January 12, 1982, the victim, a 22-year-old single woman, resided alone in her apartment at 1901 Auburn Street, Rockford, Illinois. That morning, she was preparing to go to work at a beauty shop where she was employed as a hair dresser and her first appointment was scheduled for 10 a.m.

Testimony at the trial by the victim established that at approximately 9:45 a.m., she went outside her apartment and started the engine of her car to permit it to warm up. She then re-entered her apartment and shortly thereafter heard a knock at the front window. She thought she recognized the profile of her landlady, and she opened the door and found herself confronted by a man, later identified as the defendant, who was unknown to her. He was wearing a parka, and had a scarf around his face. He held up a yellow post card which was addressed to another resident in the building. As the victim opened the door, the defendant asked the victim if the card was hers, and as she began to answer him, the defendant took a step forward through the door and struck her in the face with his fist. The impact caused the victim to fall on her back in the living room.

Trial testimony further established that the defendant then held a pillow over the victim’s face, and began rummaging through her purse. He then made her pull her ski jacket up over her face so that she was unable to see, and pushed her into the bedroom where he threw her onto the bed. He then cut the clothing from her body with a knife, tied her wrists with an electrical cord and bound her to the bed.

Over the next two hours, the defendant held her captive in her apartment where he repeatedly beat her, raped her, forced her to masturbate herself, and to perform fellatio on him. He also forced her to lie on her back in the bathtub where he stood over her, urinated on her face and into her mouth, and spit on her.

About 11 a.m., a neighbor in the same building heard screaming, and knocked at the victim’s and several other doors, but received no response. When she left the building shortly thereafter, she noticed the victim’s car was running in the parking lot. She subsequently reported the incident to a police officer. About noon, Rockford police officers went to the front door of the apartment, and knocked and rang for more than 10 minutes, until a supervisor arrived and authorized a forced entry into the apartment. As one of the officers was climbing through a window, the defendant opened the front door of the apartment, while repeating several times the word “emergency.” He was arrested, and the police officers entered the bedroom where they found the victim nude on the bed crying hysterically, her face covered with blood from cuts on her head. She was hospitalized with a broken nose, a swollen face, head lacerations which required stitches, and badly bruised wrists.

The defense at trial was consent and that the defendant was under the influence of drugs: alcohol, marijuana, and psilocybin, an hallucinogen. He testified at trial that he had known the victim for about five months, that he had had sex with her about four or five times, and had borrowed her car on two or three occasions. He testified he received money from her for participating in her sexual bondage fantasies, and that when she could not pay him on the date in question, he became angry and hit her, causing her to fall into the bathtub where she struck her head on the bathroom fixtures, aggravating the injury.

Issue I. Bail Reduction

The defendant’s bail initially was set at $500,000, was reduced to $200,000 after a hearing on his motion for bond reduction, and was subsequently reset ex parte at $500,000 following the preliminary hearing. He asserts he thereafter attempted to obtain a bond reduction hearing in order to present evidence “on the question of what was reasonable, as well as show the effects of the defendant’s incarceration on the preparation of the defense,” but the court denied the motion. He alleges the State presented no evidence at any stage of the proceedings below that the defendant would fail to appear in court if released on bail, but merely suggested that the probability of a long penitentiary sentence created the likelihood of the defendant’s flight prior to trial. He contends the court’s bail order was entered solely on the basis of the nature of the offense and the potential penalties and, as such, the order was improper. From the statement in ABA Standards relating to pretrial release, section 2.5(D) (1974) that “money bail should be set no higher than that amount reasonably required to assure the defendant’s appearance in court,” the defendant infers, and so argues, that it was improper for the court “to set bail at a sum clearly without [beyond] the reach of the defendant.” The only purpose of the excessive $500,000 bail, he argues, was to keep him confined prior to trial, thus preventing him from locating certain witnesses who would tend to corroborate his defense in that they would testify he had known the victim prior to the date of the alleged offense. He urges his conviction be reversed, and that reasonable bail be imposed to enable him to assist in the preparation of his defense.

The State asserts this issue is not cognizable in this court on direct appeal following conviction, since Supreme Court Rule 604(c) provides for interlocutory review of bail orders before conviction. (Supreme Court Rule 604(c), as amended August 9, 1983, effective October 1, 1983.) It points out the record shows the defendant availed himself of this remedy following the court’s May 26 order denying bond reduction. In this court’s order filed in the circuit court on June 12, 1982, the defendant’s “Motion for Review of Order Refusing to Modify "Bail” was denied.

The record in this court of cause No. 82 — 434 shows the defendant filed copies of the bond reduction motions filed by him in the circuit court on March 4, May 3, and an addendum thereto filed on May 26, 1982. The defendant additionally filed copies of petitions signed by friends and relatives which were filed in the circuit court supporting the reduction in the defendant’s bond, expressing their willingness to supervise his release, guarantee compliance with any of the conditions imposed on release, and assure his appearance in court. Lastly, the defendant filed an affidavit of his trial counsel in support of his motion for review. The motion prayed for release on his own recognizance, or reduction of the bond.

The State filed an answer to the defendant’s motion, appending thereto the affidavit of the State’s Attorney, of Winnebago County in opposition to reduction of the bond, setting out in full the factual background of the case, including a copy of the victim’s seven-page statement.

In reply to the State’s argument here, the defendant states there is nothing in the language or history of the rule in question which indicates that it was intended to be exclusive. He attempts to argue that after this court denied his motion to review bail, another motion for reduction of bail was presented to the circuit court which was not included in this court’s earlier review, and that this court could not adequately assess the full impact of the pretrial incarceration of the defendant without reviewing the entire record.

The defendant’s assertion in this regard is not supported by the record. No motions to reduce bail appear in the record which were filed after this court denied the motion to review bail. Further, Supreme Court Rule 604(c) provides that any party may move to have the transcript of the record filed with the appellate court. This was not done by the defendant below.

We believe the State’s position on this issue is correct. Contrary to the defendant’s assertions, the history of Supreme Court Rule 604(c) supports the State’s argument that this issue is not cognizable on direct appeal in this court in view of the defendant’s prior interlocutory appeal. After a bail order is entered, a defendant may first seek review in the circuit court for grant, reduction, or modification of bail or its conditions under section 110 — 6 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 6.) Review of that order may then be obtained in the appellate court under Supreme Court Rule 604(c). Prior to the adoption of Supreme Court Rule 604(c) in 1971, a defendant’s only avenue of relief was an original petition to the supreme court for a writ of habeas corpus. (People v. Kelly (1975), 24 Ill. App. 3d 1018, 1032.) The Kelly court observed that the adoption of the rule followed the decision in People v. Harris (1967), 38 Ill. 2d 552. There, the supreme court determined that the defendant could not raise the issue that his application for bail had been improperly denied for, “[b]oth as a practical matter and a procedural matter, review of an order denying bail must be raised prior to trial and conviction.” (38 Ill. 2d 552, 555.) There the defendant had argued that he was denied a constitutional right, and the appeal was his first opportunity to raise the issue on review. The court wrote:

“An order denying bail is, of course, interlocutory and not appealable (Lynch v. People, 38 Ill. 494); but the issue could have been raised by habeas corpus. (People ex rel. Sammons v. Snow, 340 Ill. 464; People ex rel. Smith v. Blaylock, 357 Ill. 23.)” 38 Ill. 2d 552, 555.

The defendant’s argument that a defendant “may” seek review under Supreme Court Rule 604(c), but is not barred from further review if he fails to do so, is incorrect. In People v. Henderson (1976), 36 Ill. App. 3d 355, 379, it was stated:

“The trial court’s refusal to reduce bail before conviction was an appealable order at the time reduction was refused. (Ill. Rev. Stat. 1971, ch. 110, par. 604(c).) Defendant's failure timely to appeal that order now precludes any consideration of its propriety.”

The defendant in Henderson also appealed the trial court’s refusal to set any bail after conviction pending appeal. After noting that the defendant’s sole remedy for that refusal was the procedure in Supreme Court Rule 609(b), the court stated:

“More importantly, neither order presents any ground for reversal of the instant convictions, and thus, is not properly before this court. People v. Van Riper [(1970), 127 Ill. App. 2d 394.]” 36 Ill. App. 3d 355, 379.

The remedy provided by Supreme Court Rule 604(c) is the defendant’s sole avenue of relief in this court. Having once considered the issue bn interlocutory appeal, this court has no authority to reconsider its own order. We note the defendant presents no argument on this issue that was not already included in his interlocutory appeal.

We conclude the issue is not cognizable in the context of this direct appeal.

Notwithstanding the above, a review of the issue on its merits reveals no error in this court’s prior order. At the hearing on the defendant’s January 14 motion for bond reduction, the court heard testimony from three character witnesses for the defendant, as well as testimony from the defendant and his wife. The State presented only one witness, a Rockford police officer whose testimony extended only to his objective observations of the physical condition of the victim and her apartment when he arrived on the scene. The court learned nothing of the events which preceded the rescue of the victim until the preliminary hearing which was held about eight days later. After hearing the victim’s testimony, the court found probable cause, and the State filed its three-count information against the defendant. Originally, a six-count complaint was filed against the defendant, and an arrest warrant specifying bail at $500,000 issued. Bond was reduced to $200,000 on defendant’s motion prior to the preliminary hearing.

Two days after the preliminary hearing, the court, on its own motion, under section 110 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 6), increased the defendant’s bond back to $500,000. On the same day, the State filed its motion to reconsider and increase the defendant’s bail. The court held a hearing to explain its reinstatement of the original $500,000 bond, and to allow the parties to present argument. In essence, the court indicated that until the preliminary hearing, it had no idea of the nature of the offenses nor had it considered that extended terms might be applicable at sentencing.

This court has not been provided with any kind of record — even a bystander’s report — of what proceedings, if any, took place when the $500,000 bail was originally set on January 12, 1982. Based on the court’s comments at the January 29 hearing, it is apparent its earlier reduction of the bond to $200,000 on defendant’s motion did not fully take into account the nature of the offenses charged, nor the fact that extended terms might be available as a result of the nature of those offenses, since the court was not fully advised in the premises until the preliminary hearing. Defendant concedes both of those considerations are relevant in determining bail. Ill. Rev. Stat. 1981, ch. 38, par. 110 — 5; People ex rel. Sammons v. Snow (1930), 340 Ill. 464.

As pointed out by the State, the defendant’s allegations concerning the difficulty in securing witnesses are conclusionally set forth. No facts are given from which it may be concluded that defense counsel had attempted to contact witnesses and been unable to do so. Defendant specifically named several witnesses at trial who he claimed saw him with the victim prior to the incident. Defense counsel never followed up on his own suggestion regarding funds for hiring a detective, even though the court indicated it would entertain a specific motion. Consequently, the increase in the amount of bail was within the discretion of the court. Although the bond set was a high amount, and the likelihood that the defendant could post even a 10% cash deposit was not great, the financial ability of the defendant is only one of the considerations the court must balance when setting bail. The record shows the court heard evidence at the bond reduction hearing and the preliminary hearing and allowed ample argument from the State and the defendant. All aspects which affect the determination of the amount of bail were presented to the court. The court’s decision to reinstate the original $500,000 bond was a considered one; no hint of the arbitrariness or caprice which signals judicial abuse of discretion is evident. Assuming arguendo that this court would have jurisdiction to consider the matter, no reversal is warranted.

Issue II. Fair Trial

The defendant claims the cumulative effect of several errors by the court and the prosecution was that he was deprived of a fair trial.

A. IMPROPER CROSS-EXAMINATION AND CLOSING ARGUMENT BY PROSECUTOR REGARDING DEFENSE WITNESSES

The defense of consent here included the defendant’s testimony that he had known the victim for about five months, had been introduced to her by someone named Brandon Garnett, that they went out for drinks, and to a motel. On cross-examination, the defendant was asked names and addresses of the people who could verify that he knew the victim before January 12, 1982, and, after each óf the defendant’s four responses, was asked if the person was a defense witness. Defense counsel objected to the questions on the basis that it sounded as though the person was definitely, rather than potentially, a defense witness. Later, in closing argument, the prosecutor rhetorically asked if the defendant’s story was truthful, whether it was reasonable for the jury to think that someone would be able to verify it.

The defendant admits no objections to the comments during closing arguments were made, but points out defense counsel did object to the initial cross-examination. He cites People v. Popely (1976), 36 Ill. App. 3d 828, 836, for the proposition that “this type of comment” will require a reversal even in the absence of an objection and even if there is sufficient evidence otherwise to sustain the verdict.

The State argues the error has not been preserved for review because no timely objection was made during closing argument and the issue was not specifically included in the defendant’s post-trial motion. (People v. Jackson (1981), 84 Ill. 2d 350; People v. Tannenbaum (1980), 82 Ill. 2d 177.) Further, the basis for defense counsel’s objection at trial during the cross-examination was made on a different basis from that asserted on appeal and, thus, does not preserve the issue for review. People v. Miller (1977), 55 Ill. App. 3d 136.

Alternatively, the State asserts the questioning and the prosecutor’s remarks during closing argument were proper, analogizing the rationale underlying the rule regarding the failure to produce alibi witnesses to the instant case. Essentially, that rule is that when a defendant asserts an alibi defense and names persons in support of his alibi, the prosecutor may comment upon any failure to call those persons, for the reason the witnesses were interjected into the case by the defendant, and are deemed unavailable to the prosecution. People v. Scott (1980), 92 Ill. App. 3d 106; People v. Crusoe (1979), 79 Ill. App. 3d 778.

In reply to the State’s argument regarding waiver, the defendant appears to suggest that the rule should not be applied since the record shows the defendant was dissatisfied with his counsel, and because this court has authority to consider matters not properly raised in a post-trial motion under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)). We note here the defendant’s argument concerning his dissatisfaction with counsel is a new issue raised for the first time in his reply brief. As such, it is in contravention to Supreme Court Rule 341, and requires no consideration by this court. 87 Ill. 2d R. 341.

The defendant argues the alibi exception rule should not be applied here because to do so would allow the State to comment on a defendant’s failure to call witnesses to corroborate everything he testifies to regardless of its significance. Further, defendant disputes the State’s assertion that the witnesses were inaccessible to it by stating that he “never testified to specific names of persons until questioned by the State, and that all the State had to do prior to trial was read the defense list of witnesses and interview these witnesses to find out what they are going to say.”

At the outset, defendant’s argument with regard to waiver is fairly supported by the case he cites, People v. Popely. This court may consider the issue as a matter of grace under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), in view of the fact the alleged error relates to the accused’s substantial right to be presumed innocent.

Resort to the alibi witnesses rule is not necessary in this case, because it may be resolved by reference to the general rule which, essentially, is that it is improper for the prosecution to comment on the defendant’s failure to present witnesses where such witnesses are equally accessible to both parties. (People v. Rubin (1937), 366 Ill. 195; People v. Munday (1917), 280 Ill. 32.) As a subsidiary application of that general rule, potential alibi witnesses interjected into the case by the defendant are per se deemed unavailable to the prosecution and comment with regard to failure of such witnesses to testify is proper. (People v. Mays (1972), 3 Ill. App. 3d 512.) In this case, the defendant asserts he never testified to specific names of persons until questioned by the State. However, defendant clearly testified on direct examination that he had been introduced to the victim by “Brandon Garnett” and that he went out with the victim on several occasions to have a drink or go to a motel. The names of three other witnesses who could say they saw the defendant with the victim prior to the date of the offense were then elicited on cross-examination: Joyce Scott, Dave Clanton (or Klanton), and “Juanita.” The list of witnesses provided to the State by the defendant listed — in addition to the State’s own potential witnesses — 94 other witnesses. “Juanita,” a salesperson at the Instant Jungle, was not shown at all on the list; no addresses were shown for Garnett, a male escort, or Clanton, an alleged drug dealer; Scott’s address, shown as 708 Dickerman, was testified to by the defendant as being her “last known address.” Defense counsel did not object to the eliciting of the names, only “to the phrasing which would indicate that possibly these were witnesses we intend to call at trial, either for our case in chief or for rebuttal.” The prosecutor agreed “not to ask if the defense would produce those witnesses” and no further objections were made on this point during cross-examination or later during the prosecutor’s closing and rebuttal arguments.

Defense counsel stated in his opening argument to the jury:

“There is another story, another story that we believe the evidence will show. We believe the evidence will show that contrary to what [the victim] indicated, she did know the defendant. In fact, she had had several dates with Mr. Saunders, and they had gone out.
Unfortunately, [the victim] is white and Jimmy is black. Friends and family are very strong for the feeling of [the victim] dating a black. So this was kept hidden.
During these sessions in which [the victim] would go out, they did not intend to go to the most prominent places in town. They tended to stay by themselves. And during these times, they would have sexual intercourse. And this sex got into a form of sex known as bondage.”

The rule has been established that a defendant is not bound to produce any witnesses, and, where he does not testify to any attempt on his part to secure witnesses or as to his failure to secure them it is error to comment on his failure so to do. (People v. Swift (1925), 319 Ill. 359, 365-66; People v. Langzem (1923), 307 Ill. 56.) In People v. Kubat (1983), 94 Ill. 2d 437, 497-98, it was stated:

“[Only] limited comment has been approved as an exception to the general principle (see People v. Munday (1917), 280 Ill. 32) that it is improper to comment on defendant’s failure to produce witnesses: ‘[I]f a defendant “injects into a case his activities with potential witnesses during a particular period of time ostensibly for the purpose of establishing an alibi ***, his failure to produce such witnesses is a proper subject of comment on the part of the State.” [Citations.]”

In People v. Munday, that court stated:

“[T]he general rule is that the omission or failure of a defendant in a criminal prosecution to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if called they would have testified unfavorably to him, but the jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt, provided it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.” People v. Munday (1917), 280 Ill. 32, 42.

The witnesses here, obviously, would not have been alibi witnesses, and consequently would not fall under the alibi witness exception to the general rule. However, they were witnesses who could testify of their own knowledge to a material fact; that is, whether the defendant knew the victim. The victim specifically denied knowing the defendant, or having ever engaged in any of the sexual bondage “scenes” testified to by the defendant. Evidence offered to prove a proposition which is a matter in issue or which is probative of a matter in issue is material. (McCormick, Evidence sec. 185, at 434 (2d ed. 1972).) The matter in issue here was consent or lack of it. Certainly, the testimony of witnesses that the victim and the defendant knew each other would have had a great deal of probative value on the issue of consent.

From the record and the defendant’s answers on cross-examination, it appears the witnesses who could verify the defendant’s acquaintance with the defendant were not equally accessible to the State. The witnesses in question were not occurrence witnesses, and nothing in the record indicates an obvious connection with either the defendant or the victim. Consequently, we conclude the jury was entitled to consider the defendant’s failure to produce or to endeavor to produce at least one of the four witnesses he identified at trial, as a circumstance in determining his guilt. It must be remembered the defendant brought up the name of Brandon Garnett, claimed him and Dave Clanton (with no addresses shown) as “additional witnesses” on his answer to discovery, did not list “Juanita” as a witness, but identified her at trial as a sales person at the Instant Jungle; and, despite stating that Joyce Scott was a defense witness, failed to produce her at trial.

Defendant testified he tried “desperately to find [Garnett]. What [Garnett] does is, you know, he hangs out at bars and whatever, as I understand it.” Defendant also testified he could not find Garnett because he did not know his address; “Garnett is a part of a male escorting [sic] service that has since - - been identified with a prostitution ring in Loves Park.” Further, when asked if Garnett is a defense witness, the defendant responded: “He was. There’s a subpoena out for him, as I understand it. I don’t know.” In our opinion, this testimony substantially belies the defendant’s secondary contention with regard to this issue; that is, that he was unable to secure the attendance of these witnesses due to his excessive bond. Defendant’s testimony indicates that he certainly knew more about who the witnesses were and where they could be found than the State did. The jury was entitled to consider that not one of these witnesses, not even Joyce Scott, whose address was shown, testified for the defendant at trial.

In sum, we conclude the prosecutor’s comments were not improper and no reversal on this issue is warranted.

B. MISSTATEMENT OF THE LAW BY THE PROSECUTOR DURING REBUTTAL ARGUMENT

The defendant contends the prosecutor misstated the law during his rebuttal argument when he stated:

“And that he may have taken drugs, I don’t know if that’s true or not. But let’s assume he had taken drugs. If the man had been drinking, if the man had been taking drugs, and drinking and taking drugs causes him to be so dangerous to do this to an innocent victim, that’s his problem. And any time you have a rule of law that says it’s no excuse to be so drunk or to be so on drugs that you would just be freed of any consequences of your actions, then I’d say we are in trouble. That can’t be the law. He voluntarily took any drugs he took, if he took them. He voluntarily drank, and he is liable for the consequences when innocent people are hurt thereby.”

The State argues this issue was waived due to the defendant’s failure to either timely object to it or to raise it in his post-trial motion. (People v. Jackson (1981), 84 Ill. 2d 350; People v. Tannenbaum (1980), 82 Ill. 2d 177.) The cases cited by defendant in urging reversal even in the absence of an objection, People v. Crossno (1981), 93 Ill. App. 3d 808, and People v. Johnson (1981), 102 Ill. App. 3d 122, involved far more egregious examples of misstatement of the law than what we consider the rather ambiguous misstatement here.

We find the statement to be ambiguous due to the prosecutor’s statement that “any time you have a rule of law that says it’s no excuse to be so drunk” (emphasis added), was concluded by the comment, “[Tjhen I’d say we are in trouble.” In other words, the prosecutor actually said we are not in trouble if we have a law that says it is an excuse to be so drunk as to not know what you are doing. That is effectively what the defense of intoxication is: an intoxicated or drugged condition which negatives the existence of a mental state which is an element of an offense. Further, the errors in the Johnson and Crossno cases were one of several in those cases which were found to have cumulated to result in a denial of the defendant’s right to a fair trial. This case does not present a similar cumulation of errors. The defendant has waived this issue, and plain error is not evident.

Voluntary intoxication is not a defense to general intent crimes. (People v. Rosas (1981), 102 Ill. App. 3d 113.) Deviate sexual assault and rape are general intent crimes, in that no specific mental state is required to be alleged. (See People v. Gold (1967), 38 Ill. 2d 510, 516, cert, denied (1968), 392 U.S. 940, 20 L. Ed. 2d 1400, 88 S. Ct. 2317.) Further, the defense of voluntary intoxication has been specifically precluded as to rape. (People v. Hunter (1973), 14 Ill. App. 3d 879.) Consequently, the alleged misstatement could have had no effect as to those offenses since such a defense was not available.

In contrast, the offense of home invasion requires the specific mental state of intent or knowledge. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11.) However, as the State argues, the evidence fails to show the defendant was so intoxicated as to have negatived his specific intent at the time the offense of home invasion was completed. Prior to coming to the victim’s apartment, the evidence showed the defendant consumed a bottle of Cold Duck, which is a mixture of champagne and red wine, and two ounces of Amaretto, an almond-flavored liqueur. After arriving at the victim’s apartment, the defendant testified he drank brandy, champagne, smoked marijuana and took an hallucinogenic drug. In sum, the defendant has waived this issue by failing to object and to include it specifically in his post-trial motion, and no plain error is evident.

C. JUDGE’S QUESTIONING OF THE WITNESS

The defendant contends the following colloquy reflects error on the part of the trial judge which deprived him of a fair trial:

“Q. [Defense counsel] You could move them [your hands] away from your body?
A. [Victim] Yes.
Q. Which way?
A. I could move them up and down a little bit, and I could move them a little back and forth (Indicating).
Q. Could you stand up and make those motions so we can see better.
A. (Indicating) I would move them up and down a little bit.
Q. You say a little bit, you are indicating that you are bringing your arms up the way up past your chest, is that how you could move them?
A. About this high (Indicating).
Q. So as you are laying there, you could bring your arms up about 130 degrees?
A. Yes.
THE COURT: Do you know what 130 degrees is?
A. No.
THE COURT: Then don’t say yes if you don’t know.
Q. If you went from straight out to perpendicular that’s 90 degrees.
A. Okay.
THE COURT: Pardon me. Do you know what perpendicular means?
A. Up and down?
THE COURT: Does that mean up and down?
A. It means 90 degree angle.
THE COURT: If you understand the question, answer the question, if you don’t understand it, tell the lawyer you don’t understand it.
Q. Miss [victim], perpendicular, 90 degrees is a box, rectangular, assume that is true, that the corner of a rectangle makes a 90 degree turn. So if you flex your arm from straight out on your side upward towards your shoulder, you have indicated, it appears you indicated, you are past 90 degrees, it’s some place beyond that, may [sic] a hundred degrees or a hundred and ten, is that correct?
THE COÜRT: Do you know what that means, a rectangle?
THE WITNESS: It means you move your arm. I couldn’t reach to pull anything off my face.
Mr. Canfield: But, you could bring it up, is that right?
A. Somewhat, yes.”

The defendant asserts the judge’s comments and questioning of the victim when she was on the witness stand amounted to an invasion of the province of the jury; an exhibition of bias in favor of the witness; an extensive examination which usurped the function of counsel and gave undue prominence to the matter at issue and an improper rehabilitation of the witness. He claims that from the colloquy “it appears the court was attempting to protect the witness from giving testimony which was contrary to that contained in the transcript of the preliminary hearing, and thus was impeaching.” As the State points out, there is no indication that the jury had any knowledge of what had occurred at the preliminary hearing or how it would know that anything the witness would say was inconsistent with anything prior to her testimony at trial.

The State argues the error was waived due to the lack of timely objection at trial or the inclusion of the issue in the defendant’s post-trial motion. It points out the same issue was raised, and rejected, under the waiver rule, in People v. Christmas (1977), 54 Ill. App. 3d 612.

The defendant has waived this issue and no plain error is evident. The colloquy on its face fails to support the defendant’s characterization of the judge’s actions. At first blush, the judge’s comments re-fleet chastisement of the witness — not protectiveness toward her — for having answered a question affirmatively which she apparently did not understand. When the question, answer, and physical demonstration of the degree of movement did not jibe, the judge was well within his discretion — and properly executing his duty — to clarify the discrepancy. People v. Gaston (1967), 85 Ill. App. 2d 403; People v. Hodges (1974), 20 Ill. App. 3d 1016.

Issue III. Impeachment With Prior Attempted Rape Conviction

Lastly, the defendant asserts the court abused its discretion in allowing his impeachment with a 1975 attempted rape conviction, claiming the probative value of its use was minimal, but the prejudice to him was overwhelming. He argues attempted rape is a crime which does not bear directly on a person’s honesty or veracity, and the similarity of the prior and present crimes particularly enhanced the prejudice inherent in such impeachment. He asserts the case hinged on the credibility of the victim vis-a-vis himself, and the improper impeachment prejudiced the outcome of the case.

The State counters that the impeachment of the defendant’s credibility in this manner was technically permissible as a matter of law as expressed in the controlling case, People v. Montgomery (1971), 47 Ill. 2d 510. Additionally, the State asserts the court did not abuse its discretion by allowing the impeachment. The State points out the probative value of the impeachment evidence was substantial, in that the jury is entitled to have accurate tools with which to assess the relative veracity of the primary witnesses. Further, the prosecutor did not dwell on the evidence of the prior conviction — he merely announced the fact of it and the year in which it occurred — and the court promptly admonished the jury about the limited purpose of that evidence. Further, the appropriate Illinois Pattern Jury Instruction, Criminal, No. 3.13 (2d ed. 1981), was also given to the jury.

Briefly stated, the pertinent part of the Montgomery rule allows the impeachment of a defendant’s credibility with evidence of a prior conviction if the crime was punishable by death or imprisonment of more than one year and the accused was convicted of such crime within the last 10 years, unless the judge determines that the probative value of evidence of the crime is substantially outweighed by the danger of unfair prejudice. (People v. Guyon (1983), 117 Ill. App. 3d 522, 540-41.) Where it appears in the record that the court is clearly aware of Montgomery, “ ‘it must be assumed that the judge gave appropriate consideration to the relevant factors and they need not appear of record. [Citation.]’ ” People v. Guyon (1983), 117 Ill. App. 3d 522, 541.

There is no question that the court here was aware of Montgomery when the issue was presented by defendant’s motion in limine, and the court fully complied with its directives in exercising its discretion. Although the prior conviction need not be one involving veracity or honesty if it otherwise falls within the Montgomery rule, the crime of rape has been characterized as a veracity-related crime which is probative of a witness’ credibility. (People v. Medreno (1981), 99 Ill. App. 3d 449; accord, People v. Hall (1983), 117 Ill. App. 3d 788, 799.) As stated in Medreno, “[A] serious felony conviction evinces a disrespect for societal order and thus adversely affects [the defendant’s] veracity.” People v. Medreno (1981), 99 Ill. App. 3d 449, 452.

Here, particularly, the probative value of the evidence outweighed its potential unfair prejudicial effect. Although this court has only the cold record of the defendant’s testimony to review, numerous extraneous comments made by the defendant during his testimony evidence an attempt on his part — over and above the fact he was sworn on oath to tell the truth — to impress upon the jury that he was an honest, principled person. For example, when questioned about his “infrequent” sexual contact with the victim during the time he allegedly knew her prior to the date of the offenses at bar, he answered:

“I’m a married man. [M]y relationship [with the victim] was solely sexual ***. It was not romantic involvement.”

Later,

“[PROSECUTOR DOYLE]: Then you say that you took [the victim] to bars, is that correct?
A. Not took her to bars, no, sir, not [the victim]. [The victim] and I — I’m a married man, Mr. Doyle.”

Earlier, in response to whether he had ever been out socially with the victim, he testified:

“A. Not really socially. I have gone — I have gone out after work, and we have had a drink. But never social contact, I mean, as a wife. And I tried to be discreet.
And in that particular relationship, I was trying desperately to be discreet, you know. And contact was basically at her [the victim’s] apartment. I never — although there were a couple instances that I had gone out, you know, as I said before, briefly for a drink or something. But it normally was simply to meet and return to some secluded place, her apartment. And a couple of instances, a motel.”

On several occasions, the defendant apologized for having to testify about the victim’s alleged preference for sexual bondage “scenes,” saying he did not want to make her sound like anything less than “a genuine human being.” In describing his first encounter with the victim, he testified:

“A. It was very bizarre. Bizarre in the sense that it was something that I wasn’t accustomed to as a sexual experience. [The victim] had - - after I met her, she had asked me, you know, how sexually active was I, and what was my attitude about sex, and was I aware of different or heightened dimensions of sex and sexuality.
And you know, I thought that I was a sexual sophisticate, quite honestly. And she introduced some concepts to me that I found even beyond my sophistication.”

In light of the record, the evidence of his prior attempted rape conviction had substantial probative value as to his credibility. The defendant’s testimony on its face may have conveyed to the jury an image of the defendant as a discreet, thoughtful husband, a sexual sophisticate, innocently unaware even of some of the concepts of nontraditional sexual activities which were actually engaged in by the victim who, nevertheless, was “a genuine human being” who paid him for his “services” rendered during her sexual bondage fantasies. Case law is clear that a prior conviction for a crime which is similar to the present crime does not mean it cannot be introduced. (People v. Fleming (1980), 91 Ill. App. 3d 99, 109.) Similarity is simply a factor which the court considers when balancing the probative value against the prejudicial impact. People v. Hall (1983), 117 Ill. App. 3d 788, 799-800.

The court’s discretion was wisely exercised and no reversal is warranted.

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

LINDBERG and NASH, JJ., concur.