text:
    LOIS KRAFT, a/k/a Lois Lipton, Plaintiff-Appellant, v. BERTRAM KRAFT, Defendant-Appellee.
    First District (4th Division)
    No. 82 — 683
    Opinion filed August 12, 1982.

      Henry C. Krasnow and R. Peter Carey, both of Handel, Lipton & Stevenson, Ltd., and Burton Joseph, of Lipnick, Barsy & Joseph, both of Chicago, for appellant.
    Kaufman and Litwin, Ltd., of Chicago, for appellee.
    Michele F. Lowrance, of Chicago, guardian ad litem for Rachel Kraft.
   JUSTICE LINN

delivered the opinion of the court:

This is an appeal from an order entered in the circuit court of Cook County on March 26, 1982, denying termination of joint custody but awarding “physical possession” of a seven-year-old minor child, Rachel Kraft, to her father, Bertram Kraft. Rachel’s mother, Lois Lipton, maintains on appeal that the requirements for a change of “physical possession” or physical custody of a child provided by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)(3)) were not met in this case, and that the trial judge’s findings were contrary to the manifest weight of the evidence.

We affirm the denial of termination of joint custody. We reverse the award of “physical possession” to the child’s father.

Facts

Lois Lipton and Bertram Kraft were married on June 13, 1968. Their daughter Rachel was born on December 14, 1974. Lois and Bertram were divorced in Lake County on August 19, 1977, and a settlement agreement between them was approved by the court and incorporated into the divorce judgment. The agreement provided that Lois and Bertram would have joint custody of Rachel, and that Lois would have “physical possession” of Rachel during her minority, with Bertram having visitation rights. The visitation agreement specified that Rachel would be with Bertram every other weekend, every Tuesday afternoon, four weekends during Rachel’s summer school vacation, and every other year on 14 specified holidays.

Both Lois and Bertram subsequently moved to Cook County. On August 28, 1979, Bertram filed a complaint in the circuit court of Cook County to have the Lake County divorce judgment registered in Cook County. The registration order was entered.

On April 15, 1980, Lois filed a petition in the circuit court of Cook County asking the court to terminate the joint custody of Rachel and award sole custody to Lois. Lois also requested that the court order Bertram to show cause why he should not be held in contempt for failure to pay $3,505 allegedly owed to Lois under the marital settlement agreement. On July 25, 1980, Bertram filed his petition asking the court to award sole custody of Rachel to him.

The trial of this case began on November 24, 1980, and ended 16 months later on March 25, 1982, with the entry of an order finding that “the minor child’s health will be greatly effected [sic] if a change in physical custody is not made” and ordering that “the physical possession of the minor child, Rachel, is hereby awarded to Dr. Bertram Kraft.” Lois was awarded visitation with Rachel on three of four weekends per month, and one evening during the fourth week. Provisions for other holiday and vacation visitation were to be made at a later time.

On September 1, 1980, in approximately the middle of the custody trial while Lois’ attorney was out of the country, Bertram filed an emergency petition for temporary “physical possession” of Rachel. Bertram argued that Rachel “has suffered a personality defect as a result of being reared by her mother,” and asked that he be given “physical possession” of Rachel so he could enroll her in school where he lives.

At the court’s request for guidance, Rachel’s guardian ad litem, gave her opinion that Bertram was asking for an early custody ruling and that it would be inappropriate to render that ruling at the current stage of the proceedings. The guardian ad litem also asserted that Rachel was not in serious danger, particularly in view of the conflicting psychiatric testimony that had been received up to that point in the trial. The guardian ad litem informed the court that she had talked to Rachel’s teachers, who contradicted Bertram’s claim that Rachel was “getting worse.” The court nevertheless ordered that “physical possession” of Rachel be transferred instanter to Bertram for the 1981 fall school semester. The trial judge later stated that he had so ordered because he “wanted a trial run.”

The September 1, 1981, order granting Bertram temporary “physical possession” of Rachel was stayed by this court on September 4, 1981. On September 15, 1981, this court vacated the trial porary “physical possession” order and remanded the cause to the trial court with the direction that the custody proceedings be completed “with all possible promptness.” The trial was completed more than six months later.

At trial, Lois had testified that she felt the joint custody arrangement was not working out because of Bertram’s lack of cooperation with Lois in her efforts to foster Rachel’s growth and development. Lois testified that Bertram criticized her and swore at her in Rachel’s presence; that he told Rachel her mother did not love her; that he continuously discussed the custody arrangement with Rachel and instructed Rachel to tell the judge she wished to live with Bertram. Lois testified about an incident in which Bertram came to Lois’ house demanding to see Rachel and smashed the glass in the back door.

Four psychiatrists and a psychologist testified as expert witnesses. The first to testify was Dr. Ner Littner, who had been a court-appointed psychiatrist in the Lake County divorce proceedings between Lois and Bertram. Dr. Littner testified that Lois and Bertram both had some minor character problems, but were functioning quite well. He felt, based on two interviews with Rachel, that Rachel was “functioning within normal limits.” Dr. Littner testified that Lois has “excellent mothering capacity” and in his opinion it would be in Rachel’s best interest to be in Lois’ sole custody because Lois had been the one consistent person in Rachel’s life. He felt it would be harmful to Rachel to remove her from her present living arrangement and “devastating” to Rachel to separate her from Lois.

Dr. Jack Arbit, a psychologist, was called as a witness by Bertram. He testified that Rachel has a very high I.Q., but was doing “less well” academically than she should with her high intellectual ability. Dr. Arbit testified that Rachel manifested narcissistic, egocentric, manipulative defenses against feelings of inadequacy caused by a lack of satisfaction of Rachel’s passive dependency needs as a young child. He stated that Rachel was mildly depressed. Dr. Arbit’s opinion was that Lois had caused Rachel’s personality problems, and that Rachel should be in Bertram’s custody. He also testified that Rachel was not anxious, her attention span was normal, and her verbal ability good.

Dr. Marshall Falk, a psychiatrist, was the next expert witness called by Bertram to testify. He testified that, when asked to draw a picture, Rachel drew Bertram and his present wife and family, not Lois. He said Rachel told him she wanted to live with Bertram. He observed no overt depression or emotional problems in Rachel; Rachel “related easily” and was inquisitive and bright. Although he felt Lois was a concerned and loving parent, Dr. Falk’s opinion was that Rachel should be in Bertram’s custody.

Dr. Leonard Elkun, a psychiatrist, was called next by Bertram. He testified that Rachel was open, bright, active, and a “verbal exhibitionist,” and that she suffered from “pseudomaturity” and “exhibi-tionistie grandiosity.” Although Dr. Elkun never interviewed Lois, he testified on cross-examination that Bertram had told him Lois was independent and had difficulty “being able to adopt a more passive, more traditionally benign position.” He stated that if placed in Bertram’s custody, Rachel might develop a feeling of “potency.”

Dr. Melvin Seglin was a court-appointed psychiatrist. He had interviewed Rachel, Lois and Bertram, and Lois and Bertram’s current spouses. Bertram had told Dr. Seglin that he (Bertram) had been Rachel’s nurturing parent while Lois went to law school. Rachel had told Dr. Seglin that she wanted to live with Bertram because she would have Bertram’s stepson to play with and she has her own room and toys at Bertram’s house. Rachel also told Dr. Seglin she had nicer friends at Bertram’s house, and “Mary Beth [Bertram’s present wife] buys Hostess Ding Dongs *** and Lois thinks they are crummy.”

Because Rachel told Dr. Seglin something her father had told her to tell the doctor, Dr. Seglin felt there was a “possibility that she had been directly or indirectly rehearsed. *** It was almost as if it was all prepared ***.” Dr. Seglin felt that Bertram was unaware or unconcerned about the damaging effect the prolonged litigation would have on Rachel. Lois, on the other hand, seemed to be very concerned about the effect of the custody battle on Rachel. Dr. Seglin’s opinion was that Rachel was being influenced by Bertram and his present wife, who frequently discussed with Rachel “their intentions of having her.”

Dr. Seglin stated that Rachel is too immature to make the decision about where she should live, and should not be asked to do so. She would not be harmed if her expressed wish to live with Bertram were not granted. If her wish were granted, she might develop a manipulative attitude toward other people. Dr. Segliri’s opinion was that if Rachel were placed in Bertram’s home her negative feelings would continue, supported by Bertram’s attitude, and “it is going to interfere with her personality development.”

Dr. Seglin’s opinion was that Rachel’s “interest would be best served in her mother’s home” because “Lois and her husband have more regard for personal feelings, for human dignity, for emotional values than do the Krafts. I think that they [the Krafts] see things in a more superficial way. They are loving. I don’t question that they have the best intentions, but I think the emphasis seems to be on materiality in their home.”

A number of lay witnesses were called by Lois. These witnesses included Lois’ housekeeper, Rachel’s first grade teacher, Lois' neighbors, and parents of Rachel’s friends. All of them testified that Rachel is a bright, happy child and a good student, that Lois is a devoted and loving mother, and that Rachel and Lois have a good relationship. Bertram called no witnesses other than Doctors Arbit, Falk, and Elkun.

The trial judge examined Rachel himself. Rachel told him she would rather live at Bertram’s house. Among the reasons Rachel gave for her preference were that there were more presents at Bertram’s house; Lois comes home from work between five and six o’clock; Lois punishes Rachel when she does something wrong “most of the time” while at Bertram’s house Rachel is punished “very few times”; Lois hasn’t given Rachel all the toys she wanted;-and Bertram buys Rachel plenty of clothes so that she has twice as many clothes as Lois does.

On March 25, 1982, the trial judge ordered that Lois and Bertram would continue to have joint custody of Rachel but that Bertram would have “physical possession” of. Rachel during the week and ón every fourth weekend. Holiday and vacation visitation was reserved for further determination. The order was based on the trial judge’s findings that Rachel was not achieving her potential in school; that she was suffering from “pseudomaturity, lack of nurturing, and boredom”; and that the existing arrangement endangered Rachel’s emotional stability and health.

Opinion

The parties do not dispute that a change in “physical possession” of a child, even though joint custody remains unchanged, is a custody modification governed by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act. (In re Marriage of Gargus (1981), 97 Ill. App. 3d 598, 423 N.E.2d 193; In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 412 N.E.2d 49; Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 382 N.E.2d 7.) Section 610(b) provides in pertinent part as follows:

“(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
* * *
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”
Ill. Rev. Stat. 1979, ch. 40, par. 610.

Section 610(b) reflects the judgment that in post-dissolution custody proceedings the finality of the original custody order is more important than a redetermination of which parent should be the custodian. “[T]he drafters of the Marriage and Dissolution of Marriage Act clearly intended trial courts to have a broader range of discretion in making an initial custody determination than in considering a petition for modification of custody.” (In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 624, 402 N.E.2d 831, 836.) This rationale is even more persuasive where, as in this case, the initial custody determination was made by agreement between the parents themselves. Section 610(b) “reflects an underlying policy favoring the finality of child-custody judgments, and making their modification more difficult. *** By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child’s custodial and environmental relationships which is not to be lightly overturned.” In re Custody of Harne (1979), 77 Ill.2d 414, 420-21, 396 N.E.2d 499, 502.

Harne held that section 610(b) requires that a trial judge, before modifying a custody judgment, make explicit findings that one of its three subsections is applicable. Subsections (1) and (2) do not apply in this case, therefore the court was required to find that Rachel’s present environment endangered her physical, mental, moral, or emotional health seriously enough to outweigh the harm likely to be caused by a change in her environment. After carefully reviewing the lengthy record, we find the trial judge’s conclusion that “the present arrangement endangers the child’s emotional stability and health” to be contrary to the manifest weight of the evidence.

As the condensed statement of facts above illustrates, Rachel’s physical health is normal. There were considerable differences of opinion among the expert witnesses about Rachel’s emotional condition. Some of them stated that Rachel had no abnormal emotional responses. Others had found that Rachel was “pseudomature,” exhibitionistic, and narcissistic as a result of lack of satisfaction of her need for nurturing from the time of infancy. We think it is significant to note in this regard that although the trial judge seems to have assumed Lois was at fault for any deficiency in nurturing Rachel as an infant., Bertram claimed that he was Rachel’s nurturing parent while Lois attended law school. Assuming the expert testimony was correct that Rachel was insufficiently nurtured as a young child, we could not and do not presume to assess blame for this problem against either Lois or Bertram. Both gave evidence of being loving, concerned and caring parents. However, because Rachel lived with both her parents until she was 2V2 years old, and because section 610(b) requires that modification must be based on changes that occurred after the original custody judgment, we believe it was improper for the court to have considered any problems in Rachel’s personality that have existed since her infancy, long before the divorce.

We also find the other testimony regarding Rachel’s emotional condition to be insufficient evidence that she is seriously endangered by living in Lois’ home. Rachel’s report cards from her religious school and public school and the testimony of her first grade teacher indicate that Rachel has been a very good student, particularly in light of her being one of the youngest children in her class. It is unrealistic to claim that a little girl is failing to fulfill her intellectual potential because she is not number one in her first grade class. A related issue is whether Rachel is suffering from “pseudomaturity.” In light of Rachel’s high intelligence, and considering the effect this protracted custody litigation must have had on her, we do not consider her mature demeanor to be necessarily abnormal.

Under section 610(b)(3), the trial judge was required to find serious danger to Rachel in her present environment to justify his modification of the original custody judgment. What he found was that “[s]he is not achieving her potential, although she is doing well in school, she is not putting out her best. *** Rachel is suffering from lack of nurturing. She is suffering from pseudomaturity and boredom.” This court has explained the appropriate standard of review of such findings as follows:

“In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted.” (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123,1127, 398 N.E.2d 126,129.)

We think that those requirements for reversal of the trial court’s order have been met in this case. In light of all the evidence disclosed in the record, we believe the trial judge’s finding that “the present arrangement endangers the child’s emotional stability and health” is legally inappropriate and a “substantial injustice” was the result.

We do not mean to imply by this finding that we believe all is well in Rachel’s life. The antagonism between Bertram and Lois, in spite of each one’s apparent love and devotion for the child, has undoubtedly been distressing to Rachel for years. This post-decree litigation has continued for over two years at the trial and appellate levels, and was continually discussed with Rachel. Rachel was interviewed by no fewer than seven psychiatrists and psychologists, three attorneys, and a judge. At least one of the expert witnesses and Rachel’s guardian ad litem observed during the trial that this barrage of psychological probing and testing could not fail to exacerbate the problems of even the most normal child. In her interview with the trial judge, Rachel told the judge, “I am having problems.” “What kind of problems are you having?” the judge asked. Rachel replied, “This fight.” This history and the totality of the record before us compel us to conclude that the trial judge’s decision, which would further disrupt Rachel’s life by transferring her away from her mother’s home, was contrary to the manifest weight of the evidence.

The order of the trial court retaining joint custody of Rachel Kraft is hereby affirmed. The transfer of “physical possession” from Lois Lipton to Bertram Kraft is reversed.

Affirmed in part; reversed in part.

JIGANTI and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS SZUDY, a/k/a Anthony Peplinski, Defendant-Appellant.
    First District (5th Division)
    No. 80 — 3044
    Opinion filed August 13, 1982.
    Ralph Ruebner and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Kim R. Kardas, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial defendant, Dennis Szudy, was convicted of rape and unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, pars. 11 — 1, 11 — 3) and sentenced to 18 years’ imprisonment on the rape charge. On appeal, defendant contends that (1) the trial court committed reversible error in allowing the State to elicit testimony that the complaining witness had identified defendant’s photograph out of a book at the police station, thereby indicating to the jury that defendant had a prior criminal record; and (2) defendant was not proved guilty beyond a reasonable doubt. We affirm.

The complaining witness, T.F., was 16 years old on March 24, 1978. On that evening she and a friend, Michael Browning, took public transportation to the Aragon Ballroom to see a concert. When they arrived they found that the concert was sold out, so they went next door to the Flamingo Cafe for several drinks. T.F. testified that they were asked to leave the cafe following an argument with a Spanish lady when Browning began to dance without his shoes. Browning testified that the lady did not strike T.F. and he denied telling a defense investigator otherwise.

T.F. and Browning left the cafe at 10 or 10:15 p.m. and started hitchhiking. A car with four males pulled up and let them in, Browning in the back seat and T.F. in the front. T.F. and Browning both identified defendant as the driver of the car.

When the automobile reached the 111th Street exit, where T.F. and Browning had asked to be taken, the driver drove on past and told them that Browning would be taken home first. They exited on 167th Street and Crawford and turned into a schoolyard where defendant told Browning to get out of the car. He was pushed out by the two males in the back seat and knocked to the ground. The car then sped off with T.F. inside.

Browning testified that he at first flagged down a car so he could look for the assailants’ automobile but when he did not see it, he walked home. He did not call the police when he got there. He planned to call T.F. to see if she had returned home but instead fell asleep until noon the next day. He called a friend of T.F.’s that afternoon but did not speak to the police or T.F. until two days after the incident.

T.F. testified that after Browning was pushed out of the automobile she started crying and the driver told her to get into the back seat. He told the men in the back to remove her clothing. She testified that they removed her clothes from the waist down. Each of the men in turn had sexual intercourse with T.E, while one man held her down at all times. After the third man had finished he told T.F. that the driver had a gun and would hurt her if she did not keep quiet. While the driver had intercourse with T.F., one of the passengers drove the car. Afterwards, the driver told T.F. to get into the front seat and he ordered the other three men to leave.

The driver and T.F. drove around for awhile and he stopped once in an alley to let her urinate. When they resumed driving he told her he was a “hit man” with the Mafia and stole cars. He asked her age and started to apologize because she was so young. He stopped the car and then had sexual intercourse with her again. She testified that she was crying and trying to stop him from raping her.

Once again they began to drive and T.F. eventually fell asleep for a time. When she awakened, defendant asked her where she would like to go and she told him 105th and Western. When he let her out of the car, he warned her to keep her “mouth shut” or he would “blow her and her mother away.” She then ran to her boyfriend’s house nearby.

Harold Reeve, T.F.’s boyfriend, testified that his father let her in and went back to bed. When Reeve saw her at about 7 a.m. on March 25, she was lying face down on the couch in his home, crying. He saw that she had a blackened and swollen eye. She told him that she had been raped and they talked awhile as he tried to comfort her. They left Reeve’s house and went to breakfast.

T.F. testified that Reeve had paid for breakfast because she had no money. After breakfast, however, she bought a pair of sunglasses. Reeve testified that he did not pay for the sunglasses.

Reeve took T.F. home at noon, and she and her mother went to the hospital. There, T.F. spoke with two police officers and underwent tests and examination. Later, she identified a photograph of defendant from a book at the police station. On April 6, she identified defendant in a lineup.

T.F. further testified that the driver had struck her twice. She said that the others in the car had referred to him as “Dennis.” In addition to her black eye, she said that she had a mark on her chest and mouth.

The examining doctor, Chowdary Adusmilli, testified that T.F.’s left eye was blackened and that the right side of her chest was bruised. He found no severe stretching of the labia, no injury to the hymen, and no trauma to the vagina. Stipulated medical evidence indicated that human spermatozoa was present on the specimen slides taken from T.F.

The investigating officer, Robert Dudak, testified regarding his involvement in the case. He obtained an arrest warrant for defendant on April 4, 1978. On April 6, defendant surrendered himself to the police and a lineup was conducted. In Officer Dudak’s report of the incident he had written that T.F. was completely undressed by her assailants.

Defendant, 36 years old, testified that he was alone when he picked up T.F. and Browning at approximately 11 p.m. The road was icy. The couple told defendant that they wanted to go to 175th and Crawford. Defendant testified that Browning was inebriated and that both were boisterous. T.F. complained that she was beginning to get a bruise from a fight that she had been involved in.

When they arrived at 175th and Crawford, Browning left them. T.F. said it was too late to go home. She asked defendant what they could do and then suggested that they stop. Defendant pulled into a schoolyard and they began kissing. T.F. asked defendant if he had any money and he gave her a $20 bill. She disrobed and they had sexual intercourse. They were in the schoolyard approximately two hours.

Defendant further testified that after they left the schoolyard, he drove north and T.F. slept. After she awakened, defendant took her to 103d and Clairmont, at her request. When they reached that destination she asked defendant to let her sleep for awhile because she was very tired. She slept in the car for IV2 to 2 hours and then left.

Defendant’s brother-in-law, a police officer, told him about the arrest warrant and he surrendered himself to the police.

Erwin Karol, a retired police officer and an investigator for A.I.C. Security, testified that he spoke with Browning by telephone soon after the incident. Browning told him that T.F. received her bruised eye from a Spanish lady she had fought. On cross-examination, however, Karol admitted that his written report indicated that Browning had told him T.F. got the black eye from one of the men in the car. The report also indicated that Browning said T.F. was struck by the lady during an argument.

In rebuttal, Jose Cruz testified over defense objections. Cruz was a bouncer at the Flamingo Cafe on the night of March 24, 1978. He said that the neighborhood is rough and that the cafe caters mainly to Mexicans and Puerto Ricans. At 9:30 p.m. on March 24 a white male and female entered the cafe and ordered drinks. Cruz testified that the male was acting wild and jumping up and down.' At one point Cruz told him that he could not dance without his shoes. Twenty minutes later, he told them to leave the bar. He had not observed any fight or unusual disturbance involving the couple. They left but returned in a few minutes and asked to be let back in. It was raining and chilly outside. Cruz refused to let them return because the male was too drunk. The female was “so-so.” He saw nothing unusual about her face.

The jury returned its verdict of guilty on both charges. Defendant’s motion for a new trial was denied and he brought this appeal.

Opinion

Defendant initially contends that the trial court committed reversible error in allowing the State to elicit testimony that T.F. identified defendant’s photograph from a book of photos at the police station. T.F., her mother, and Investigator Dudak all testified, over defense objections, regarding T.F.’s viewing of defendant’s photograph. Such testimony, defendant believes, indirectly informed the jury of his prior criminal record, which the trial court had ordered excluded upon defendant’s motion in limine. For support, defendant cites People v. Murdock (1968), 39 Ill. 2d 553, 237 N.E.2d 442, People v. Denwiddie (1977), 50 Ill. App. 3d 184, 365 N.E.2d 978, and People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262. None of those cases, however, hold that reference to a victim’s identification of defendant’s photograph is reversible error. In People v. Murdock, the court recognized that the admission of the actual “mug shots” may suggest to the jury that a defendant has a prior criminal record and that, absent a probative purpose for their admission, such photos could result in error. However, the court expressly did not consider “whether or not such evidence alone would be so prejudicial as to require a new trial.” (39 Ill. 2d 553, 562.) In contrast to the Murdock case, the present case does not involve the admission of the photographs themselves.

In People v. Denwiddie, the court noted that the admission of mug shots is not automatically reversible error and that such photographs were properly admitted in that case to prove a fact in issue, defendant’s identity. In Denwiddie, the photographs bore police file numbers which were covered over with tags.

The recent decision of People v. Stover does not involve police photographs. There, the defendant, charged with obstructing a police officer, argued that the State improperly questioned the arresting officer as to his prior acquaintance with defendant. The Illinois Supreme Court agreed that the questioning was improper even though defendant’s knowledge that the officer was in fact a police officer was an element of the offense. The court noted that the officer had testified he was in uniform when he arrested defendant and therefore defendant’s knowledge that the man was a police officer was already established. The court reversed the conviction on another ground and merely stated that under the circumstances of the case there was “no apparent reason why the prosecutor would inquire into defendant’s previous acquaintance with [the officer] unless an implication of prior criminal activity was intended.” The court concluded, “[w]e trust that on retrial such inquiry will not recur.” 89. Ill. 2d 189, 196, 432 N.E.2d 262, 266.

The cited authorities do not compel us to find that the questioning in the pending case is reversible error. The references to the photographic identification was unnecessary because defendant’s identity was already established and not in dispute. Nevertheless, we do not find that the testimony was unduly prejudicial. In People v. Long (1978), 65 Ill. App. 3d 21, 23-24, 382 N.E.2d 327, we rejected an argument similar to the one that defendant makes in the pending case, stating:

“[T]he practice of showing photographs of suspects to witnesses is essential to effective law enforcement, [citation], and the use of police photographs for identification purposes has long been upheld. * * * [T]he police photographs were not received in evidence and were never described as ‘mug shots’ within the hearing of the jury. The jury did not examine the photographs or the album containing defendant’s photograph. Defendant was not prejudiced by the testimony concerning the photographic identification nor does it appear that the jury improperly considered defendant’s past criminal record. The testimony regarding the photographic identification did not deprive defendant of a fair trial.”

As in the Long case, here the photos were never received into evidence or referred to as “mug shots.” We conclude that defendant was not denied a fair trial by the references to the photograph.

Defendant next contends that his conviction must be reversed because the evidence against him is highly improbable and conflicting. He admits to having sexual intercourse with T.E, but not against her will. Arguing that the State’s evidence regarding force was primarily the testimony of T.F. and Browning, defendant emphasizes certain supposed flaws and conflicts in their testimony.

First, defendant questions Browning’s failure to contact the police after being shoved out of defendant’s car and witnessing his friend being abducted. Instead of summoning help, he went home and went to sleep. Defendant infers from this that T.F.’s version of the incident is improbable. While we agree that Browning’s inaction is puzzling, and the record contains no explanation of his behavior, we cannot say that his inaction creates a serious doubt as to defendant’s guilt in light of all the evidence. Browning’s failure to summon the authorities creates a credibility question for the jury to weigh. We cannot overturn a guilty verdict unless the proof is so unsatisfactory and unconvincing that it raises a serious doubt of defendant’s guilt. (People v. Coulson (1958), 13 Ill. 2d 290, 296, 149 N.E.2d 96, 99; People v. Jenkins (1980), 88 Ill. App. 3d 719, 410 N.E.2d 1145.) Moreover, a rape victim’s testimony, standing alone, is sufficient to sustain a conviction if her testimony is clear and convincing (People v. Baseer (1980), 90 Ill. App. 3d 866, 414 N.E.2d 5), and minor discrepancies in her testimony do not render it unconvincing. People v. Thompson (1978), 57 Ill. App. 3d 134, 140, 372 N.E.2d 1052.

In the pending case, in addition to her testimony, there was corroborative physical evidence of a physical attack on T.F. She had a bruised and swollen eye and bruises on her chest. The jury resolved the conflict in the evidence as to the cause of those bruises in favor of T.F.’s version of the facts, that defendant struck her and that he and the others raped her.

T.F.’s informing Officer Dudak that she was fully unclothed, when she testified to being partially undressed, we believe, is a detail that does not seriously undermine her credibility. Nor do we find material her testimony of having no money to pay for breakfast, which was disproved by her subsequent purchase of sunglasses. Her purchase of sunglasses does not, as defendant claims, necessarily support defendant’s claim that he paid her $20.

Defendant further questions T.F.’s testimony that defendant raped her a second time after apologizing to her because of her youth. Again, this is a matter for the jury to evaluate. Defendant’s apology might have been motivated by surprise as to her age. By that time, however, T.F. had been raped four time and it is not so incredible as defendant implies that he would rape her again. Similarly challenged is T.F.’s testimony that she fell asleep during her ordeal. Defendant argues that this indicates her acquiescence in the sexual intercourse and her lack of fear of defendant. We cannot agree that defendant’s inference is the only plausible one to be drawn; T.F. had been drinking before the incident and had been up all night. An ordeal as terrifying as gang rape, moreover, might well cause utter exhaustion in the victim.

Finally, defendant strongly relies on the medical testimony that there was no indication of vaginal trauma, despite.the victim’s testimony that she had been raped five times. The State was precluded from eliciting expert opinion testimony as to the significance of the presence or absence of vaginal trauma in rape cases. We note from the record, however, that the doctor examined T.F. at 2 p.m. on March 25, 1978, at least eight hours after the last act of sexual intercourse; signs of redness or trauma that might have occurred could have faded by then. More important, the force element of rape does not depend for its proof on actual physical damage to bodily tissue, and no definite standard exists concerning the amount of force necessary to sustain a rape conviction. (People v. Sims (1972), 5 Ill. App. 3d 727, 283 N.E.2d 906.) Furthermore, a victim is not required to subject herself to serious physical harm by resisting in order to establish that intercourse was nonconsensual. (People v. Sims.) We conclude that the absence of noticeable vaginal trauma, especially several hours after the rapes occurred, does not inject such doubt of defendant’s guilt as to require reversal of the jury’s verdict.

The State’s evidence indicates that T.F. was forcibly abducted, raped, threatened, and struck by defendant. Following her release after several hours in captivity, she went to her boyfriend’s house, crying, to tell him what had occurred. Despite defendant’s threat against her and her mother, she did report the rapes to her mother after a few hours. Finally, her face and chest had been bruised. The jury chose to believe her testimony. We agree that the evidence of force was sufficient to prove defendant guilty as charged beyond a reasonable doubt.

As a final consideration, the State urges us to remand the case for a sentencing determination on the unlawful restraint charge. The trial court found, in effect, that this offense merged with the rape conviction and held that there would be “no purpose in imposing a sentence on the unlawful restraint charge.” The State did not object to this or ask the court to impose a separate sentence and did not file notice of a cross-appeal, but simply added its argument on this issue in its brief. We therefore hold that the point is waived and that the sentence shall remain as set by the trial court.

We affirm the trial court’s judgment for the reasons set out above.

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE SCOTT, Defendant-Appellant.
    First District (5th Division)
    No. 80 — 1919
    Opinion filed August 13, 1982.

      Ralph Ruebner, Fe Fernandez, and Karen Daniel, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, Kim R. Kardas, and David A. Stoioff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged by information with attempted murder, armed robbery, burglary, home invasion, aggravated battery and armed violence. The armed violence count was not submitted to the jury. Defendant was found guilty of home invasion, aggravated battery and armed robbery. He was not found guilty of attempted murder and burglary. Defendant was sentenced 28 years for armed robbery, 28 years for home invasion and 7 years for aggravated battery to run concurrently. Defendant appeals. We reverse the conviction for home invasion; we reverse and remand the convictions for armed robbery and for aggravated battery.

Although defendant raises nine issues on appeal, our disposition of this case requires that we address only four of them: (1) whether defendant was proved guilty beyond a reasonable doubt due to the allegedly incredible testimony of the complainant, the only eyewitness; (2) whether defendant was proved guilty beyond a reasonable doubt of home invasion where the complainant testified he had given him permission to enter his room; (3) whether the arresting officer’s .testimony as to defendant’s assault of another individual deprived defendant of a fair trial; and (4) whether the prosecutor’s remarks during closing argument were improper, depriving defendant of a fair trial.

An abbreviated statement of facts follows. Additional facts necessary to the resolution of the issues addressed will be given as required.

The following evidence was adduced at trial. At approximately 4 a.m. on November 3, 1979, the victim was reading a newspaper in his room at the YMCA hotel on 37th and Wabash. A man knocked on his door, identified himself as Scott, and asked to be let into the room. The victim knew Scott who was the desk clerk at the “Y” where he lived. He unchained the door and let in two men. Once inside the room, one of the men asked to see the victim’s gun. The victim refused. One of the assailants struck him across his head, fingers and wrists with a nightstick and the gun fell to the floor. The victim fell and struck his head on a dresser drawer. The two assailants took the gun, a flashlight and $32 and fled. The victim went downstairs to call the police but two policemen were already entering the building. The victim identified Scott, the desk clerk and the defendant here, as one of the men who attacked him. Defendant denied being in the victim’s room. Defendant pulled out a baseball bat and stated that was the only club he had in his possession. The police arrested defendant and one of them went behind the desk and found a nightstick propped up against the counter. The victim testified that this nightstick was just like the one used to beat him. Traces of human blood were found on the nightstick.

The arresting officer also testified that he understood the victim to say that $2 had been taken by the assailants. The victim, however, denied telling any police officer that $2 had been taken. After the attack the victim was found to be suffering from lacerations of the skull, swollen hands, and fractures in the forearm bones.

Defendant’s wife was called to testify on defendant’s behalf. She stated that on November 3, 1979, her husband was working two jobs, one as a desk clerk at the YMCA and another at a gas station. He worked at the “Y” from midnight to 8 a.m. On the morning of November 3, 1979, she called her husband at approximately 2:45 a.m. and talked with him for over an hour. At approximately 4:20 or 4:25 a.m. another call came over the switchboard at the “Y” and her husband put her on hold for approximately five minutes. After concluding the telephone conversation Mrs. Scott dressed and went to the “Y.” Following Mrs. Scott’s testimony the defense rested.

The jury found defendant guilty of home invasion, aggravated battery and armed robbery and not guilty of attempted murder and burglary. Defendant appeals.

Opinion

Defendant asserts that he was not proved guilty beyond a reasonable doubt because the complainant was not in full possession of his faculties and because his testimony was based on assumptions, contained inconsistencies, and was contrary to human experience.

A court of review will not set aside a jury’s verdict unless the evidence presented at trial is so improbable as to raise a reasonable doubt of guilt. (People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.) However, the burden is always upon the State to prove defendant guilty beyond a reasonable doubt and a judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of defendant’s guilt. (People v. Dawson (1961), 22 Ill. 2d 260, 174 N.E.2d 817.) Where the State’s evidence is improbable, unconvincing and contrary to human experience, a reviewing court will not hesitate to reverse it. Dawson.

Defendant cites no authority supporting his argument that his conviction should be reversed because the complainant was senile or not in possession of his faculties. No challenge to the complainant’s competency to testify was made at trial and no separate hearing was held on that issue. It is well established that if a witness has the capacity to observe, recollect and communicate, he is competent (People v. Nash (1966), 36 Ill. 2d 275, 222 N.E.2d 473, cert. denied (1967), 389 U.S. 906, 19 L. Ed. 2d 223, 88 S. Ct. 222), and a feebleminded person possessing these capabilities may be competent to testify. (People v. O’Neal (1977), 50 Ill. App. 3d 900, 365 N.E.2d 1333.) The record indicates that although the complainant’s testimony was at times unresponsive and confusing in response to questions asked of him, he had the capacity to observe, recollect and communicate. Thus, he was competent to testify and any inconsistencies in his testimony merely affected his credibility and the weight to be accorded his testimony. People v. Lindsay (1978), 67 Ill. App. 3d 638, 384 N.E.2d 793.

Defendant also relies heavily on Dawson in support of his argument that complainant’s version of the events was improbable and contrary to human experience. Dawson is distinguishable In part because the defendant there was a police officer whose good character was attested to at trial and who testified in his own defense that he had broken up a crap game in which one of the complaining witnesses had been involved and that he had never taken any of that witness’ money. Defendant there had also had “words” previous to the alleged incident with the other complaining witness. None of the other persons present at the time of the alleged incident testified at trial. The supreme court found it unbelievable that this police officer would rob people who knew him, threaten to call police when he himself was a policeman, then return most of the money and then simply go back to the hotel bar from where he came. Dawson cites other examples of such improbable testimony: testimony of the complaining witness that the five men who took his wallet at gunpoint voluntarily accompanied the witness to his home upon the witness’ promise to get them more money (People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96), testimony of the complaining witness that the defendant after robbing her and finding she had no money gave her his name and telephone number (People v. Buchholz (1936), 363 Ill. 270, 2 N.E.2d 80), and testimony of the complainant that after a multiple rape attack she and the defendants went to several taverns together (People v. O’Connor (1952), 412 Ill. 304, 106 N.E.2d 176). However, the improbability of the complainant’s testimony in these cases implicitly casts doubt upon whether a crime was committed at all as opposed to who committed it. It is not in dispute that the complainant in the instant case was beaten by someone and robbed. The material fact in question here is who did it.The pivotal factor in evaluating identification testimony is whether the witness had an opportunity to view the offender under adequate- conditions. (People v. Reed (1980), 84 Ill. App. 3d 1030, 405 N.E.2d 1065.) In the instant case complainant had an unobstructed view of defendant’s unmasked face. Further, complainant had known defendant for six months prior to the incident. A positive identification by a single witness with ample opportunity to observe is sufficient to support a conviction. People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866.

Defendant next contends he was not proved guilty beyond a reasonable doubt of home invasion because complainant testified that he gave defendant permission to enter his room at the YMCA. The offense of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(a)) is defined as follows:

“A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.” (Emphasis added.)

Defendant argues that this statute requires an unauthorized entry to be proved as an element of the offense. The State counters that defendant’s authority to enter was pedicated on the expectation of civil conduct and not on defendant’s obvious intent to beat and rob complainant. Consequently, defendant’s entrance was procured by deceptive means and therefore unauthorized.

The first element of the crime of home invasion is entry of a dwelling place of another without authority. (People v. Hert (1981), 95 Ill. App. 3d 871, 420 N.E.2d 813; People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489.) The offense makes criminal certain well-defined conduct: an unauthorized entry of a dwelling for the purpose of threatening or using force. (People v. Medreno (1981), 99 Ill. App. 3d 449, 425 N.E.2d 588.) The language “without authority” found in the home invasion provision has enjoyed but limited discussion in previous cases. In Pettus the court considered whether the informations charging defendant with the offense were totally defective because of their failure to include an allegation of “without authority.” The court held they were fatally defective commenting that without such an allegation “*** one is left only to speculate as to the status of the defendant, whether he be an invitee, or has entered the premises by error or in some legal capacity. If any of the latter be true, then the offense would become some form of aggravated assault or battery.” (84 Ill. App. 3d 390, 393, 405 N.E.2d 489, 492.) This statement implies of course that usually an invitee could not commit the offense of home invasion.

The State, however, urges us to adopt the reasoning found in People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859, which addresses the issue of vitiated consent within the context of the burglary statute. The burglary statute (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a)) provides in pertinent part:

“A person commits burglary when without authority he knowingly enters or without authority remains within a building *** with intent to commit therein a felony or theft.”

In Fisher defendants contended that they were not proved guilty beyond a reasonable doubt of burglary because they had been given permission to enter the victim’s apartment. In sustaining the convictions the court held that the defendants were given limited authority to enter for the purpose of a social visit. The court found that they entered with felonious intent and that intent vitiated any consent given. Hence they entered without authority.

Although the reasoning of Fisher might be persuasive in another factual setting, it is not persuasive here. The Fisher court placed heavy reliance on the fact that the defendants there had entered the apartment with felonious intent, albeit with the consent of its occupants. Here, however, defendant was specifically acquitted of the offense of burglary by the jury. To find defendant guilty of home invasion utilizing the Fisher rationale would require us to say that defendant had the intent to beat the complainant or steal from him at the time he gained entry to his apartment. This would be tantamount to finding him guilty of burglary, an offense of which he was acquitted by the jury. This we will not do. Thus, we reverse defendant’s conviction of home invasion because unauthorized entry was not proved beyond a reasonable doubt.

Defendant also contends that Officer Blahusiak’s testimony at trial and the improper remarks of the prosecutor during closing argument were prejudicial denying him a fair trial.

During trial Officer Blahusiak, the arresting officer, testified to the events leading up to defendant’s arrest. He testified that he went to the YMCA with Kevin Smith. When they entered the lobby they found complainant who was covered with blood talking with defendant. Blahusiak testified that defendant “threatened Mr. Smith with the baseball bat and threatened to kill him.” Defendant asserts that the quoted testimony was improper because it is evidence of other crimes, inadmissible unless it tends to prove motive, intent, identity, modus operand! or absence of mistake, none of which apply here. Defendant argues this testimony is particularly prejudicial in light of the prosecutor’s remarks in closing argument that “[everything else was kept out as to why Kevin Smith called the police, but if you use your common sense, you can figure it out.” The State counters that this testimony was not intended to point out any unrelated criminal behavior, but rather to give the jury a complete and accurate report of the events which preceded defendant’s arrest. The State also argues that this was an excited utterance, and in any event any error was cured because defense objections to these remarks were sustained.

Generally evidence of other crimes in inadmissible as proof of guilt for the offense charged. (People v. Harris (1980), 91 Ill. App. 3d 112, 414 N.E.2d 755.) However, such evidence is admissible if relevant for any purpose other than to show propensity to commit a crime. (People v. Hoppock (1981), 98 Ill. App. 3d 58, 423 N.E.2d 1351.) Evidence of other crimes is also admissible, as the State contends here, when relevant to police investigation of the offense at issue where such investigatory procedures involved an integral part of the narrative of the defendant’s arrest. (People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179.) However, unnecessary details such as defendant’s threats to the victim of a subsequent crime, have been held prejudicial and inadmissible. (People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148; see also People v. McKibbins (1981), 100 Ill. App. 3d 787, 427 N.E.2d 238, Davis and collected cases cited therein.) Here the arresting officer had already stated that a routine assignment directed him to meet a citizen at a certain street corner, that he and his partner went to that street corner and were soon approached by Kevin Smith. After talking with Smith they proceeded to the YMCA. As the presence of the police at the YMCA had been explained, the police officer’s testimony regarding defendant’s threats was an unnecessary detail and was properly excluded.

Defendant also contends that the prosecutor improperly commented in closing argument that “[e]verything else was kept out as to why Kevin Smith called the police, but if you use your common sense, you can figure it out.”

In closing argument counsel must confine himself to facts introduced into evidence; it is improper to refer to evidence which has been excluded. (People v. Burton (1978), 63 Ill. App. 3d 915, 380 N.E.2d 929.) Thus, it has been held improper for a prosecutor to comment during closing argument in an armed robbery trial that the jury could infer the content of the statements excluded under the rules of evidence. (People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.) The suggestion of such an open-ended inference was highly improper. (Connors.) Thus, the prosecutor’s remarks in closing argument here were improper.

The State further contends, however, that no prejudice arose from either of these errors, as defendant’s objections to both were sustained and because the evidence in the instant case was overwhelming. An error in regard to the admission of unrelated misconduct or crimes is commonly deemed to be cured where defense objections have been sustained during the course of trial and where the jury is instructed to disregard the matter. (People v. Burnett (1979), 74 Ill. App. 3d 990, 394 N.E.2d 456.) Such evidence, however, may be so highly inflammatory that such rulings may fail to effect a cure. (People v. Deal (1934), 357 Ill. 634, 192 N.E. 649; People v. Preston (1978), 60 Ill. App. 3d 162, 376 N.E.2d 299, aff’d (1979), 76 Ill. 2d 274, 391 N.E.2d 359; Burnett.) Similarly, the prosecutor’s comment on excluded evidence may not be reversible where there is overwhelming evidence of defendant’s guilt and the court concludes that such comment was not a material factor in the defendant’s conviction. People v. Bracy (1973), 14 Ill. App. 3d 495, 302 N.E.2d 747.

The evidence against defendant here was complainant’s identification as well as defendant’s possession of a nightstick which could have been but was not conclusively proved to be the weapon used in the attack. In the instant case complainant’s testimony appeared confused at times. Thus, while the identification of a single credible witness is sufficient to convict, defendant’s point is well taken that these errors were highly prejudicial in light of the at-times unresponsive and confusing testimony of the only eyewitness. Further, although neither of these errors alone might be sufficiently prejudicial to constitute reversible error, they may be sufficiently prejudicial when considered in combination as each complicates and compounds the error. People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.

As we cannot say that these errors were not a material factor in defendant’s conviction, they constitute reversible error. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880; Connors.) In light of our holding we find it unnecessary to address the remaining issues raised by defendant.

Accordingly, the conviction for home invasion is reversed; the convictions for armed robbery and aggravated battery are reversed and remanded for further proceedings.

Reversed in part; reversed and remanded in part.

LORENZ and WILSON, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellant and Cross-Appellee, v. CLARENCE D. RASMUSSEN et al., Defendants-Appel-lees and Cross-Appellants.
    Second District
    No. 81 — 691
    Opinion filed August 6, 1982.
    Rehearing denied September 14, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Frank M. Daly and Douglas R. Engel, Special Assistant Attorneys General, and Roy E. Frazier, Assistant Attorney General, of counsel), for appellant.

      Edward T. Graham, P. C., of Glen Ellyn, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

'The Department of Transportation of the State of Illinois appeals from a judgment of $31,530 for damage to land not taken after a quick-take easement over part of defendants’ property was granted in connection with construction of an overpass on State Route 51 in the City of Rochelle. (No appeal is taken from the award of $1800 for the easement.) The Department alternatively claims that prejudicial trial errors require a new trial. The defendants cross-appeal from the judgment which awarded interest at 6% per annum on the excess of final over preliminary just compensation, which they claim denies them fair compensation.

Defendants’ property on which they operate a gasoline filling and service station is located at the southwest corner of Lincoln Avenue and Illinois Route 51 in Rochelle. The property is bounded to the south by a Chicago & North Western Railway right-of-way. The property has one driveway entrance on the north (Lincoln Avenue) side and two driveways on the east side.

On October 18, 1979, the Department filed a petition to condemn a three-year construction easement along the eastern edge of defendants’ property. The easement was granted pursuant to the “quick-take” provisions of the eminent domain statute (Ill. Rev. Stat. 1979, ch. 47, par. 2.1 et seq.). The Department deposited $1080 as preliminary compensation to the defendants for the taking of the easement. An order vesting the Department with title in the easement was entered December 12,1979.

The easement occupies about 1,245 square feet along the eastern edge of defendants’ property at a width of either five or 10 feet. The Department obtained the easement to facilitate the construction of a highway overpass which will elevate Route 51 over a distance stretching from about a block north of defendants’ property to about 900 feet south of the property. Construction of the overpass began in early 1980.

I

DAMAGES TO DEFENDANTS’ PROPERTY NOT TAKEN .■

Initially the Department argues that the trial court erred in finding that defendants suffer a constitutionally compensable impairment of access to and from their property as a result of the construction of the overpass and attendant alteration of Route 51. The Department contends that defendants’ property remained the same before and after the taking of the easement and construction of the overpass, with no change in access to the adjoining street, Old Route 51, and that defendants suffer no compensable injury when the flow of traffic is diverted to a new location, new Route 51. We think this is an oversimplification, and agree with the defendants’ argument that access to the property was materially impaired when the old route was cut off in both a north and south direction by the abutments of the overpass, and by the closing of a direct access railroad grade crossing.

Roughly, the following depicts the traffic access prior to the improvement.

And, after the improvement:

Before construction of the overpass, Route 51 ran directly past the defendants’ property and crossed the railroad right-of-way to the south at grade with no impediment to traffic flow both from the north and the south. After the construction of the elevated overpass, while the street on the eastern edge of defendants’ property remains open to traffic at approximately the same grade as before (under the overpass), travel to and from defendants’ property is restricted both to the north and to the south by the abutments of the overpass together with the closing of the railroad grade crossing. Before construction, vehicles exiting defendants' property eastward could drive directly onto Route 51 and proceed north along that route; now they must drive north to Lincoln Avenue, then west one block, then north on a connecting street, then east on Fourth Avenue to gain access to Route 51. Vehicles turning south off the property will no longer be able to proceed to an east-west street south of the property; they will have to turn around at the former grade crossing and proceed north. Vehicles which could have approached directly from the south of the property before the construction must first proceed north of the property and then south to approach it.

Under these circumstances we must reject the Department’s argument that mere circuity of travel, shared by the public generally, resulted from the relocation of part of Route 51 and that the decrease in the value of the defendants’ property is therefore not compensable. See Department of Public Works & Buildings v. Mabee (1961), 22 Ill. 2d 202, 205; Department of Public Works & Buildings v. Wilson & Co. (1975), 62 Ill. 2d 131, 136-37; Streeter v. County of Winnebago (1980), 85 Ill. App. 3d 116,120.

Article I, section 15 of the Illinois Constitution provides that private property shall not be “taken or damaged” for public use without just compensation. A “ ‘taking’ ” requires an actual physical invasion of property. (Department of Transportation v. Lake Ka-Ho, Inc. (1981), 98 Ill. App. 3d 1052, 1055.) The words “or damaged” were added to the Constitution in 1870 to compensate landowners for harm to their property rights caused by activities not amounting to takings. As explained in the seminal case of Rigney v. City of Chicago (1881), 102 Ill. 64, 78:

“[Ujnder the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provisions, give a right of action.”

The words “or damaged” make it possible for a landowner to claim compensation “for the destruction or disturbance of easements of light and air, and of accessibility, or of such other intangible rights as he enjoys in connection with, and as incidental to, the ownership of the land itself.” (Horn v. City of Chicago (1949), 403 Ill. 549, 554-55.) The claimant must show a direct physical disturbance peculiar to his property; depreciation suffered in common by all lands in the vicinity of an improvement is not compensable. {Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 273.) The harm suffered by the landowner must be different in kind and not merely greater in degree from that suffered by the general public. Department of Public Works & Buildings v. Wilson & Co. (1975), 62 Ill. 2d 131, 140.

An owner of property which abuts a highway has a constitutionally protected “ ‘right of access,’ ” and the deprivation or material impairment of the right of access is compensable as a “damaging” of property. (62 Ill. 2d 131, 140-41.) Whether the right of access has been taken or materially impaired is a question of law. 62 Ill. 2d 131,141.

Of particular significance to us in this case is the fact that it is not merely the public use of the highway which has changed; the physical characteristics of the adjoining highway in relation to the subject property have substantially changed as well. The effect of the reconstruction of Route 51 parallels that of erecting barricades along the railroad right-of-way and the north line' of Lincoln Avenue. The road along the property’s eastern boundary is blocked at one end and open, yet redundant with the northern boundary, at the other.

Cases which have dealt with street obstructions, vacations, dead ends and blind courts therefore seem most nearly relevant. In Rigney v. City of Chicago (1881), 102 Ill. 64, the claimant owned property fronting on Kinzie Street in Chicago, slightly east of its intersection with Halsted Street. The City installed a viaduct over Halsted and across Kinzie, cutting off the claimant’s access to the west along Kin--zie. The trial court refused an instruction which would have permitted compensation if the jury had found that by constructing the viaduct on Halsted Street access was prevented to Halsted Street from plaintiff’s premises over and along Kinzie Street (except by means of a pair of stairs). The supreme court held that the claimant’s property had been “damaged” by construction of the viaduct and reversed and remanded for determination of damages for impaired access to the west of the property. In City of Chicago v. Burcky (1895), 158 Ill. 103, the claimant owned property on the corner of 61st Street and State Street. The City vacated a portion of 61st Street, within the block in which the claimant’s property was located but just west of the property’s western edgeline, and built a viaduct along the southern edge of 61st Street. It is not clear whether access from the south via State Street was blocked. The supreme court held that thé claimant could recover as she had suffered an injury not common to the public at large because communication south and west of the property was shut off and the abutting 61st Street was transformed from a thoroughfare into a “blind court.” (158 Ill. 103, 110; see also City of Chicago v. Baker (7th Cir. 1898), 86 F. 753.) In Gibbons v. Paducah & Illinois R.R. Co. (1918), 284 Ill. 559, the court found that access to the claimant’s property, which fronted on Johnson and Sixth Street, was materially impaired by the presence of a railway embankment which made Johnson Street impassable as to the claimant and cut off access to the next cross-street east of Sixth Street.

In Illinois Malleable Iron Co. v. Commissioners of Lincoln Park (1914), 263 Ill. 446, the court laid down this general formulation of the rule to determine compensability of harm from street vacations:

“The rule is stated in Elliott on Roads and Streets, (vol. 2, 3d ed. sec. 1181,) as follows: ‘Owners of land abutting upon neighboring streets, or upon other parts of the same street, at least when beyond the next cross-street, are not, however, entitled to damages, notwithstanding the value of their lands may be lessened by its vacation or discontinuance.’ ” 263 Ill. 446, 452-53.

See also Hacker Co. v. City of Joliet (1915), 196 Ill. App. 415; City of Chicago v. Union Building Association (1882), 102 Ill. 379.

In Department of Transportation v. Shaw (1977), 68 Ill. 2d 342, relied upon in part by defendants, the court held that the closing of a road where it intersected a limited-access road was compensable as to land abutting the road closed, even though the land also fronted on another public highway which was left open. Shaw is not precisely on point; there the township road was entirely vacated whereas here the defendants can still pass from their property to the adjoining roadway and onto the system of public highways. However, Shaw does provide support by analogy; although the improvement here has not physically eliminated defendants’ access to the old Route 51, it has rendered that “access” redundant and virtually valueless. Shaw also demonstrates that defendants may recover despite retaining full access both east and west along Lincoln Avenue.

The severe effects of this construction in limiting ingress and egress to the property are quite different from the relatively technical or formal disturbances involved in a number of other cases. For example, in City of Chicago v. Central Standard Life Insurance Co. (1966), 68 Ill. App. 2d 336, the court held that the closing of Wabash Street just north of 25th Street, where the claimant’s property fronted on both streets, resulted only in slightly more circuitous travel for the claimant and did not amount to a material deprivation of access as an element of damage to the remainder. (68 Ill. App. 2d 336, 348.) In Calumet Federal Savings & Loan Association v. City of Chicago (1940), 306 Ill. App. 524, the claimant’s property was located on the intersection of Torrence and 95th Streets. The City erected barrier curbs on both the north and south sides of 95th Street and on Tor-rence north of 97th Street and built a new street, 96th Street, connecting Torrence with 8th Street via Colfax, which had previously terminated at 95th Street. The court held that the claimant could not be compensated as he had access both from Torrence and from 95th Street, as before, and that the only harm from the improvement was the slight increase in time required to reach the part of the property fronting on Torrence. (306 Ill. App. 524, 530-31.) Minimal disruptions in Central Standard and Calumet, unlike the changes here, simply made no practical difference to the landowners. Here, the practical difference is significant and material with the result that defendants are entitled to recover damages.

II

ALLEGED TRIAL ERRORS

The Department argues that the trial court erred in denying its motion to strike the testimony of Delbert Patzner, one of defendants’ expert witnesses testifying to damage to the remainder. It maintains that Patzner’s testimony was based in part on elements which included damages suffered by the public at large. We agree.

Patzner’s testimony makes it clear that he did not limit his estimate of damages to the remainder to compensable losses, but figured the damaged as the decrease in fair market value resulting simply from the overpass being there, even while he conceded that such a decrease would affect any land in the vicinity of the improvement:

“A. Well, anytime that you have — If you have two $100,000 houses here and a $50,000 house here, this will bring the value of this house up, but bring the value of the two adjoining properties down. The overpass structure being the next neighbor to this property brings the value of the property down.
Q. Just the overpass being there?
A. Yes.
Q. Would that have anything to do with light, air and view?
A. Somewhat, yes.
■ Q. Then you did consider light, air and view?
A. Well, again I stated that I—
Q. Do you know what I mean by light, air and view?
A. The sixty-foot allowed limit in the city of Rochelle if you build on that, you would be looking at a structure.
Q. That would be view, wouldn’t it?
A. Yes.
Q. Did that enter into your consideration?
A. No.
* * *
Q. Do you mean the structure being there thirty to thirty-five feet next to your station is going to reduce the value of your property?
A. Yes.
Q. You took that into consideration?
A. I considered that the new improvement that was put next to this property has reduced the value of the subject property just as much as two $100,000 houses and you set a $25,000 house in between. It is going to bring the value of this up and this down and that structure sitting there is no way that it cannot diminish the value of the. subject property.”

Patzner’s testimony as to damages was based at least partially on improper elements of damage, and the trial court should have stricken it upon motion. . .

Depreciation suffered in common by all lands in the vicinity of an improvement is not compensable. (Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 273.) In Schuler v. Wilson (1926), 322 Ill. 503, one of the claimants occupied land which was not taken but which was adjacent to land taken for use as a school playground. The court held that she was not entitled to damages, even though her property decreased in value as a result of the use of the adjoining land as a playground, as there was no direct physical disturbance of any right which she enjoyed in connection with her property. In Rigney v. City of Chicago (1881), 102 Ill. 64, 80-81, the court noted that “the building of a jail, police station, or the like” directly depreciates the value of private property but is not compensable.

The overpass in the case at bar is analogous to the jail and police station in Rigney and the playground in Schuler.

Where a witness has considered improper elements of damage, his testimony will be deemed incompetent, even though in part based upon proper elements. (Trunkline Gas Co. v. O’Bryan (1960), 21 Ill. 2d 95, 100; Central Illinois Light Co. v. Nierstheimer (1962), 26 Ill. 2d 136, 140; Department of Public Works & Buildings v. Bills (1965), 66 Ill. App. 2d 170, 177.) Similarly, it appears that Patzner’s estimate of damages took into account factors outside the bill of particulars, which claimed loss of access, and loss of light, air and view. A bill of particulars limits the pleader to the particular cause of action mentioned therein; proof without pleadings is as defective as pleadings without proof. Hemingway v. Skinner Engineering Co. (1969), 117 Ill. App. 2d 452, 458, 462; Shehy v. Bober (1979), 78 Ill. App. 3d 1061,1068.

The Department has also complained of error in the instructions to the jury. Since the cause is to be remanded we will review the questions raised as to those instructions which are likely to be tendered on retrial.

The Department’s principal assignment of error concerns defendants’ instructions Nos. 9, 10, 12, 15, 16 and 21, all of which contain the language “the property of the defendants is damaged by the installation of the highway overpass” or substantially similar language. The Department asserts that this broád language left the jury free to award damages to the defendants “simply because the highway structure was there,” and not just damages based on compensable deprivations such as impairment of access.

Under the circumstances of this trial, it appears that the inclusion of the broad language was error, enabling defendants to recover damages flowing from the mere presence of the public improvement — i. e., not limiting the damages to the decreased value of the property which resulted from a constitutionally compensable deprivation. What makes this language particularly prejudicial is the nature of the damage evidence introduced by defendants.

Not all factors bringing about a reduction in value represent recoverable damages to land not taken. (Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 273.) To sustain a claim for damages the depreciation in value must be from a direct physical disturbance of a right the owner enjoys in connection with his property. Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 273, Rockford Electric Co. v. Browman (1930), 339 Ill. 212, 218; Schuler v. Wilson{1926), 322 Ill. 503, 509.

The installation of the overpass on the public highway was not itself a taking of defendants’ property, and defendants do not allege, nor would the record support, any damage to the remainder from the temporary construction easement. Compensable damages to land not taken must, in this case therefore, flow from a constitutionally com-pensable “damaging” of defendants’ property, not from a “taking.” (Horn v. City of Chicago (1949), 403 Ill. 549, 554-55.) The decreased fair market value resulting from the overpass is compensable only insofar as it flows from an impairment of access or another compensa-ble damaging; otherwise, it is damnum absque injuria. Rigney v. City of Chicago (1881), 102 Ill. 64, 80-81.

The challenged instructions did not so limit the jury. The instructions were prejudicially misleading in allowing, if not directing, the jury to award damages for any decrease in value resulting from the presence of the overpass, not only for decreases in value resulting from any compensable deprivations or impairments of property rights.

This was a particularly serious error in light of the testimony of defendants’ expert witnesses, who apparently based their damage estimates on the total decrease in fair market value resulting from the mere presence of the overpass on the public right-of-way. We have discussed the testimony of Delbert Patzner in this regard; it appears that the defendants’ other expert witness, Herbert Harrison, also used a simple comparison of the value of defendants’ property before and after the installation of the overpass, although he did specify that none of the damages he found were due to circuity of travel or decreased traffic. Harrison stated that these damages were a direct consequence of the taking of the easement, but appears to have meant this only in the sense that the overpass could not have been built had the easement not been taken. In general it appears that much if not all of defendants’ valuation testimony must have taken noncompensable factors into account, magnifying the danger that the challenged instructions would mislead the jury. An instruction authorizing the jury to consider the damages arising from all the sources shown by the evidence in ascertaining the amount of the damages to the fair cash market value of land not taken is erroneous where the evidence included improper elements affecting market value. Illinois Power & Light Corp. v. Cooper (1926), 322 Ill. 11, 22.

HI

THE CROSS-APPEAL-INTEREST

On cross-appeal, defendants challenge the adequacy of the interest awarded for the delay between the taking and the payment of final compensation. Under section 2.6 of the eminent domain statute (Ill. Rev. Stat. 1979, ch. 47, par. 2.6), defendants are entitled to interest at the rate of six percent per annum on any excess of final over preliminary just compensation from the date of the taking. Defendants argue that the six percent rate of interest is so unreasonably low as to deprive them of just compensation.

Under the “quick-take” provision of the eminent domain statute (Ill. Rev. Stat. 1979, ch. 47, par. 2.1 et seq.), the State may condemn and take possession of property before paying the owners full compensation for the taking (or for any damage to the remainder). It is established that the requirements of just compensation for takings under the United States and Illinois constitutions include interest for the delay in payment from the date of taking. (Seaboard Air Line Ry. Co. v. United States (1923), 261 U.S. 299, 306, 67 L. Ed. 664, 669, 43 S. Ct. 354, 356-57; Miller v. United States (U.S. Ct. Cl. 1980), 620 F.2d 812, 837; Department of Conservation v. Jones (1979), 75 Ill. 2d 557, 564.) The claimant must receive an amount sufficient to produce the full equivalent of the value paid contemporaneously with the taking; “interest at a proper rate” is a good measure of the amount to be added as compensation for the delay. (United States v. Klamath and Moadoc Tribes (1938), 304 U.S. 119, 123, 82 L. Ed. 1219, 1222-23, 58 S. Ct. 799, 801; Seaboard Air Line Ry. Co. v. United States (1923), 261 U.S. 299, 304, 67 L. Ed. 664, 669, 43 S. Ct. 354, 356; Miller v. United States (U.S.Ct. CL 1980), 620 F.2d 812, 839.) The determination of whether a given rate of interest is sufficient for just compensation is a judicial function and the statutory rate of interest applies only if it is constitutionally adequate. Miller v. United States (U.S. Ct. Cl. 1980), 620 F.2d 812, 837; United States v. Blankinship (9th Cir. 1976), 543 F.2d 1272, 1276; State by Spannaus v. Carney (Minn. 1981), 309 N.W.2d 775, 776.

Defendants argue that the six percent paid in this case is “grossly inadequate” as the nation’s prime rate has been at least twice that amount since the date of the taking (the final award has apparently not been paid). Defendants’ position finds considerable support in recent case law.

In United States v. Blankinship (9th Cir. 1976), 543 F.2d 1272, the court held that the 6% interest rate specified in the Declaration of Taking Act (40 U.S.C. sec. 258a (1970)) operated as a floor, but not a ceiling, for interest awards on delayed compensation. It noted that a rate no greater than 6% would in some instances contravene the just compensation requirement and “strongly suspectfed]” that the takings in question (which occurred in 1973) were such an instance. 543 F.2d 1272,1276.

In Miller v. United States (U.S. Ct. Cl. 1980), 620 F.2d 812, the court similarly construed the 6% rate specified by Public Law 90 — 545 (16 U.S.C. sec. 79c(b)(2) (1976)) as a floor under which prejudgment interest could not fall consistent with the intent of Congress and held that it was not constitutionally sufficient for the period from 1968 to 1980. The court fixed an award of 672% for 1968-70, 772% for 1971-75, 872% for 1976-79, and 12% for 1980 to the date of payment. The court based its interest rates primarily but not exclusively on the yields on long-term corporate bonds rated Aaa by Moody’s Composite Index of Yields on Long Term Corporate Bonds.

In In re South Bronx Neighborhood Development Plan (1981), 110 Misc. 2d 57), 442 N.Y.S.2d 869, the court held that New York’s 6% rate of interest was constitutionally inadequate for the period 1978-81 and, taking note of the rates of return on treasury bonds, treasury notes and corporate bonds, based its award on the return on medium-term public securities and applied a rate of 9% to the 1978-81 period. See also Township of Wayne v. Cassatly (1975), 137 N.J. Super. 464, 349 A.2d 545 (6% inadequate for 1970-1976); In re Manhattan Civic Centre Area (1968), 56 Misc. 2d 656, 291 N.Y.S.2d 656 (4% inadequate for 1965-68).

Defendants urge this court to hold section 2.6 of the eminent domain statute unconstitutional. However, where the court may reasonably construe a statute so as to preserve its constitutionality, it should do so. (Miller v. United States (U.S. Ct. Cl. 1980), 620 F.2d 812, 837-38; People ex rel. Mathews v. Board of Education (1932), 349 Ill. 390, 400.) This court therefore holds that, insofar as interest for the delay in payment is an element of just compensation under the United States or Illinois constitution, the six percent interest rate specified by section 2.6 is a statutory minimum only, with the proper rate of interest to be a question for the trier of fact (as is just compensation in general). See, for example, State v. Jones (1960), 271 Ala. 227,123 So.2d 107.

It should be noted that courts deciding on appropriate rates of interest appear to rely most heavily on yields from high-grade corporate bonds and yields from government securities, such as treasury bonds. See, e.g., Georgia-Pacific Corp. v. United States (U.S. Ct. Cl. 1980), 640 F.2d 328, 365-67 (relying on Moody’s Composite Index of Yields on Long Term Corporate Bonds and rejecting plaintiff’s cost of borrowing as measure of interest due); United States v. Blankinship (9th Cir. 1976), 543 F.2d 1272, 1276-77 (relying primarily on United States Treasury obligations); Pitcairn v. United States (U.S. Ct. Cl. 1977), 547 F.2d 1106, cert. denied (1978), 434 U.S. 1051, 54 L. Ed. 2d 804, 98 S. Ct. 903 (relying on interest payable on long-term corporate bonds); United States v. 97.19 Acres (D. Md. 1981), 511 F. Supp. 565 (relying on a mix of securities); see generally Annot., 56 A.L.R. Fed. 477 (1982).

In this case the preliminary compensation was $1080 and the final compensation for the taking of the easement was $1800. The excess of final over preliminary compensation for the taking is, therefore, $720. Interest on the $720 should be figured from the date of the taking, December 12,1979, to the date of payment.

The defendants have also claimed that the interest is inadequate with respect to the award of damages to the remainder. However, although the case is to be remanded with respect to these damages, the question as to interest in this connection will remain in the case, and we therefore address it.

The United States Constitution does not require compensation for “damagings,” but only for "takings.” Thus a constitutional right to interest for the delay in payment of an award for damage to land not taken must arise, if at all, under the Illinois Constitution. Our supreme court has held, however, that the matter of interest on such awards is controlled by statute and that any right to such interest accrues solely by virtue of statute. (Geohegan v. Union Elevated R.R. Co. (1915), 266 Ill. 482; City of Chicago v. Allcock (1877), 86 Ill. 384. See also City of Chicago v. S. Obermayer Co. (7th Cir. 1920), 268 F. 237). We therefore hold that the statutory rate of six percent is not subject to constitutional challenge as it is applied to the interest paid by the Department on that part of the judgment representing damage to land not taken.

The judgment of the circuit court is vacated and the cause is remanded for a new trial on damages.

Judgment vacated and cause remanded.

LINDBERG and HOPF, JJ., concur.