*1 agree I that a of the for can- judgment circuit court fees attorney for in a include sums fees workers’ properly attorney compensa- tion which has not been proceeding approved by Commission. However, has jurisdiction proceedings recovery circuit court I fees in do not a of a attorney general. agree part judgment a lack of because such case void for consideration jurisdiction work a performed compensation in workers’ improperly proceeding support portion requested. of a of the award the issue of impropriety While of consideration of the work proceeding below, workers’ was not raised compensation plaintiff I argue does not here that such error was waived. conclude we consider the of the properly propriety portion ques- award in holding portion tion without lack judgment was void for of jurisdiction. ILLINOIS,
THE PEOPLE THE STATE Plaintiff-Appellee, OF OF WENINGER, Defendant-Appellant. RODNEY L.
Third District No. 3 — 92—0346 30, 1993.
Opinion filed March *2 STOUDER, J., dissenting. Malvik, Williams, Associates,
John Buckrop, Island, & of Malvik Rock appellant. for Douglas, Attorney, (John
Marshall E. State’s Rock Island X. Breslin Mertel, Kennedy Appellate and Rita both of Attorneys State’s Prosecutor’s Office, counsel), for People.
PRESIDING JUSTICE McCUSKEY delivered the of the opinion court:
Following trial, defendant, a bench L. Rodney Weninger, was convicted of two counts of aggravated (Ill. criminal sexual assault 1991, 38, Rev. Stat. ch. and one par. 14(b)(1)) count of criminal 12— (Ill. 38, sexual assault Rev. par. 13(a)(3)). Stat. ch. The vic 12 — tim, T.W., was the defendant’s 10-year-old adopted daughter. defendant was subsequently sentenced to concurrent terms of and 12 years’ imprisonment. (1) raises two whether the evi- appeal: issues
dence presented was sufficient him of the offenses prove guilty be- doubt; yond (2) reasonable whether the trial court erred al- television, lowing testify T.W. to means of closed circuit out by pursuant to section 106B—1 of Code of Criminal Procedure (Code) (Ill. of 1963 Rev. Stat. ch. par. 1). affirm. We 106B— Following continuances, several a bench trial set for Febru- ary 1992. At a hearing days prior trial, five the prosecutor orally informed the court and defense counsel that she filing would be a motion to present of T.W. means of by closed circuit television. Section 106B—1 of the Code allows this certain limited circumstances. Section 106B—1 of the Code became ef- fective on 1992. A January written motion was subsequently filed the State and a hearing regarding motion was held on the trial date.
Butch Bos testified that he anwas electronics technician. He said he could provide the necessary equipment to allow T.W. to testify by means of closed circuit television. Bos indicated that a cam- era would in the placed judge’s Also, chambers. he said a television monitor would be placed courtroom where it could be viewed the defendant. The defendant and his counsel could communicate with each other during T.W.’s testimony by the use anof intercom system sensitive enough to pick up slightest whisper.
Marcia Rexroat testified that she had a bachelor’s degree in nurs- ing and a master’s degree in mental health nursing. Rexroat had been working for years with the Sexual Abuse Treatment Program pro- viding therapy for victims of sexual abuse and their families. She had *3 provided T.W. with about 12 horn's of individual therapy. Rexroat stated that T.W. had a very sad facial appearance, cried suf- easily, fered from sleep disruption, had a appetite, decreased suffered from headaches, stomachaches, and was not in performing well school. Rex- roat testified that T.W. continued to have an intense fear of the defendant. Rexroat said T.W. feared that the defendant try would look at her or “get her.” Rexroat stated that T.W.’s did not family be- lieve her accusations concerning the defendant and that had T.W. been removed from her home. Rexroat indicated that it was difficult to dis- cern whether T.W.’s symptoms were caused sexual abuse or by the rejection and abandonment felt as being a result of removed from the family.
Rexroat indicated fear was that T.W.’s symptoms would in- crease if T.W. testified in front of the defendant. Rexroat stated that “minimally those symptoms increase.” She that, also testified while it may be therapeutic a child of 12 or 13 to of- confront the fender, she thought it would be a risk high for T.W. Rexroat stated that T.W. would able to testify be in the defendant’s presence, but the ultimate question was whether it be good would for her. Rex-
roat stated that it presence was the and not the courtroom, which would be traumatic for T.W. T.W. had previously testified in a court juvenile proceeding. However, that was defendant. Rexroat indicated that T.W. had been slow to respond to that, treatment. Rexroat’s fear was if T.W. had to testify in the presence, it would extend the period of rehabilitative treatment in response to the trauma suffered in connection with these events. Rexroat stated that she was con- cerned about the possibility depression, which can lead to suicidal ideation and However, self-mutilation. Rexroat acknowledged that T.W.was not presently exhibiting those symptoms.
Following Rexroat’s testimony, the trial court found that the re- quirements of section 106B—-1 of the Code had Therefore, been met. the trial court ordered that T.W.’s could presented means of closed circuit television. Pursuant to the trial court’s ruling, T.W.testified in the judge’s chambers during the bench trial.
T.W. was the 10-year-old niece of the defendant’s -wife. T.W.’s mother died when T.W. was four years old. T.W. was then adopted by the defendant and his wife. The defendant and his wife had three other children, two and a boys three-year-old girl. They had operated care in their day home for about three years. defendant’s wife also worked part time outside the In August 1991, home. their license operate care day was after the suspended Department of Chil- dren Family (DCFS) and Services received a report possible sex abuse. The defendant then left the home and began living with his mother.
T.W. testified that her father began doing “sexual stuff” to her when she was about six or seven years old. He told her not to tell or he would her. “whip” occasions, On several T.W.’s father had her “suck on his private.” These incidents occurred the basement laun- dry room or in her father’s bedroom. T.W. stated that her parents had separate bedrooms. The defendant also several times to attempted place his finger and his penis T.W.’s vagina. T.W. said that defendant’s acts hurt her. She testified that one incident occurred when she watching basement. T.W. said her fa- ther took her into the basement bathroom where he was remod- doing eling work. other children upstairs, were and her mother was at work. The defendant pulled down her pants underpants, put “green jell stuff” on her front and her “bottom” and then placed his *4 penis into her “butt.” T.W. testified doing the defendant continued that until “white stuff” came out of his penis wiped which he then a towel. incident, cousin,
After this her Roger Yarrington, T.W. told her doing father was sexual stuff to her. T.W. asked him to tell her mother. stated that she had also told her Shannon T.W. brother and her friend Sunshine told Roger ly- about abuse. T.W. that she was ing after her mother told her that cause her such accusations would father to to and their go jail they day would lose house and the care said, business. her father “whipped” When found out what he T.W. doctor, her. After T.W.’s mother took her to the she was removed from the home DCFS. stated that once she part T.W. had seen an X-rated in movie her home. admitted that she in juve- T.W. lied nile court when proceeding she testified that she had never watched an X-rated movie. explained T.W. that she was afraid she in get would if trouble she admitted watching the movie.
Dr. Eden Aurelio testified that he on August examined T.W. 1991. Dr. Aurelio stated that her However, was intact. he hymen ob- served redness and swelling in the back area of her vagina. The doc- tor said that this “vaginitis” condition was known as and was not common for age. a child T.W.’s The doctor also testified that the red- ness could have been caused sexual He abuse. further stated that there were possible causes, other including infection or allergies. Dr. Aurelio opined that sexual conduct with a child’s vagina, such as at- tempted intercourse, sexual can causing occur without to injury hymen. The doctor called DCFS following T.W.’s examination.
The defendant denied having sexual conduct with T.W. He ad- mitted that he kept numerous sexually explicit in his videotapes home. He said they were kept his bedroom so children could not watch them. The defendant lotion, said the bottle of green la- beled “Body for Liqueurs Lovers” which was found in the basement bathroom, had been many years ago gag as a to him gift and his wife. The defendant asserted he never used the lotion after he re- ceived it. The defendant admitted he “whipped” T.W. after she told his wife that he had been sexually abusing her. Both the defendant and his wife testified that T.W. had often been for disciplined lying. The defendant’s wife stated T.W. had with previously problems va- ginitis after she ate However, or drank something acidic. she admitted T.W. was never medically treated this condition.
The trial judge found the defendant of two counts guilty aggra- vated criminal sexual assault and one count of criminal sexual assault. judge trial stated that he found credible witness. The trial judge noted that T.W.’s (1) corroborated by: doctor area; finding vaginal redness her (2) reports Roger, her brother friend; and her (3) lotion green
the basement Additionally, judge bathroom. the trial noted that T.W. once, recanted her story only after her mother warned her of the pos- consequences. sible The trial noted that judge additionally T.W. had maintained her consistently original story following her mother’s warning. The trial also judge gave found T.W. a reasonable expla- nation as to she in why juvenile lied court an viewing about X-rated movie. the trial Finally, judge specifically stated that he did not be- lieve the testimony.
On appeal, argues defendant evidence was not sufficient to find him guilty beyond a reasonable doubt because testimony T.W.’s was not clear convincing sufficiently and and was not corroborated. The argues credibility T.W.’s was impeached by the fact she recanted her accusation and the fact she by admitted lying under oath during juvenile proceedings. court The defendant also there argues was no medical corroboration because the doctor testi- fied that there could be causes for many vaginitis. disagree T.W.’s We with the defendant’s analysis reasoning. and
When the sufficiency the evidence is in a questioned criminal case, cases including involving offenses, sex the test to employed be whether, upon viewing review is after light evidence in the most to the prosecution, any favorable rational trier of fact could have found the essential elements of the beyond crime a reasonable doubt. (People (1991), 188, 202-03, 690, 697; v. Schott 145 Ill. 2d 582 N.E.2d People (1985), 237, 261, 267, v. Collins 106 Ill. 277.) 2d 478 N.E.2d longer There is no a that a requirement sex-offense victim’s convincing be clear and or substantially (Schott, corroborated. 145 Ill. 202, Also, 2d at 582 at 696.) N.E.2d it is the of the trier responsibility of fact to determine the credibility the witnesses and the to weight be to testimony. People (1991), their v. Steidl 142 Ill. 2d 837, 845; 568 N.E.2d Hudson Ill. People (1990), App. v. 198 3d 915, 923, 556 N.E.2d 646. review,
Based on the Collins standard of we conclude the evi dence was sufficient to find the defendant of the offenses be guilty yond a reasonable doubt. T.W. described some detail the sexual as saults committed the defendant. The trial as the trier of judge, fact, to a judge specifically found T.W. credible witness. trial found there was a re explanation initially reasonable for fact T.W. her an seeing canted accusation and for the fact that T.W. lied about X-rated court The trial during juvenile proceedings. judge movie (1) also determined was corroborated the medical by: T.W.’s concerning to other the defendant’s testimony; (2) reports people In conduct; green lotion the basement. (3) the defendant was not addition, specifically found judge trial ele- the trial found essential judge witness. Consequently, credible agree a reasonable doubt. We beyond ments the crime were proved findings. with the trial court’s in allow contends the trial court erred additionally
The defendant circuit television. ing testify by closed quali appeal, adequately first time contends Rexroat was fied as an We conclude the defendant has waived expert witness. issue failing to raise that regarding qualifications issue Rexroat’s Ill. 2d in the trial court. Enoch (People (1988), however, note, that Rexroat was additionally N.E.2d We She had a qualified give opinion an in this case. master’s clearly experience in mental and 13 degree nursing providing health years’ spent for victims of sexual had therapy personally abuse. she Finally, *6 12 hours to providing therapy argues
The defendant also that was testimony specula- Rexroat’s Therefore, tive. the not alleges sup- that it sufficient to was port the trial court’s conclusion that suffer severe emo- T.W. would tional distress which to suffer likely is cause her to severe adverse if effects she the presence testified in of disagree the defendant. We with the defendant’s of review the record and his of interpretation the statute in question. Supreme recently Court has that “a in found State’s interest
the physical and psychological well-being child may of abuse victims be to sufficiently important cases, least outweigh, at some a right to face his or her pursuant accusers in court” to confrontation Const., clause of the United (U.S. States Constitution VI). (Maryland Craig (1990), amend. L. Ed. U.S. 666, 683, 2d 110 S. Ct. Court Supreme found consti- a tutional which Maryland statute allows the use of the closed circuit television a where determination was made that the child witness will suffer “serious emotional distress such child that reasonably cannot (Emphasis added.) communicate.” 497 U.S. Craig, 685,110 at 111 L. Ed. 2d at S. Ct. at 3169. following
Section 106B—1 of the Code was de- Craig enacted cision and provides, pertinent part:
“In a proceeding prosecution of an offense of criminal assault, assault, sexual criminal sex- aggravated sexual criminal abuse, ual abuse or a or- aggravated criminal sexual court der that testimony age of a child under the of 18 victim years be taken in the outside courtroom shown court- room by means of closed circuit if:
(i) The testimony is taken during proceeding; and (ii) The determines that judge by the child vic tim in the courtroom will result in the child suffering serious emotional distress such that the child cannot com reasonably or municate that the child will severe emotional dis suffer tress is likely cause the child to severe adverse suffer (Emphasis added.) Ill. Rev. Stat. par. ch. effects.” 1(a)(1). 106B— The trial court in the instant appeal determined that T.W.’stesti- mony could be presented closed circuit television based upon that portion statute which we have emphasized. Our review of the record indicates that the trial court no finding made that T.W. could However, reasonably instead, communicate. the trial court reached its upon ultimate decision based its finding that T.W. would suffer severe emotional distress that is likely cause the child to suf- fer severe adverse effects.
Rexroat testified T.W. continued to have an intense fear of the defendant and that it of presence and not the courtroom, which would be traumatic for T.W. Rexroat also stated testifying the defendant would “high be risk” for T.W. Rexroat was concerned that “minimally” symptoms T.W.’s would increase and her period of treatment longer. would be even Rexroat further testified she was concerned about possibility depression, which could lead T.W. to suicidal ideation and self-mutila- tion. We conclude that the import obvious Rexroat’s testimony that serious adverse if effects were T.W. testified in the pres- that, ence of the minimum, defendant. Rexroat stated at a an in- crease in T.W.’s could many symptoms expected and that more se- rious adverse effects were also possible.
The defendant asserts Rexroat’s was not sufficient *7 because she did not testify that would suffer severe emotional distress. The defendant notes that Rexroat testified only concerning the possible harm that occur if at was T.W. testified trial in the presence defendant.
We find that the of portion of section 106B—1 the Code in ques- tion only requires sufficient to the trial support court’s finding that child will suffer severe emotional distress that likely to cause the child to suffer severe adverse effects.
Our the record that expert review of shows presented which was sufficient to the trial court’s determina support tion. Rexroat’s testimony, including statements that T.W. had an intense fear of defendant and that of testifying
727 T.W., to support defendant would be traumatic for was sufficient 649, finding. (1990), trial court’s See State v. Crandall 120 N.J. 656, 483, 577 A.2d 486 (testimony of the child and her mother that sufficient child feared the defendant was for a finding that closed circuit television procedure used). should be asserts, however,
The defendant also section 106B—1 Code is vague. unconstitutional because it is The overbroad recognize does that the Court in Supreme Craig approved statute Maryland which for a closed circuit television provided pro- cedure. out, however, The defendant points statute Maryland’s requires a determination child witness will suffer serious emotional distress such that the child cannot communicate. reasonably While the Illinois statute also language, has included this it also pro- vides an additional allowing basis the use closed circuit televi- sion testimony. The basis, defendant contends that this additional re- lied on by case, the trial court in this is unconstitutional because it provides no standard of measure for the required serious emotional distress. The defendant argues that the statute does not include a def- inition of the terms relating to severe emotional distress or stand- any ards for determining what constitutes “severe adverse effects.” agree
We
with the State that the
argument
chal
only
lenges the
grounds
statute on the
vagueness.
unconstitutional
A
“statute is unconstitutionally vague if its
ill
terms are so
defined that
their meaning will ultimately be determined
opinions and
whims of the trier of fact rather than
objective criteria.”
(People
v. La Pointe (1981),
482, 499,
88 Ill. 2d
344,
431
352.)
N.E.2d
A court
assume, however,
will
that the
words used
a statute have their or
dinary and popularly understood meanings, absent a
legisla
contrary
tive intent. (People v. Fabing
48,
143
(1991),
Ill. 2d
570 N.E.2d
329, 332; La Pointe,
Based these upon principles, we conclude that the statute in question is adequate to defeat the defendant’s challenge to its consti tutionality. legislative objective of the statute is to protect physical and psychological well-being of child (See abuse victims. Craig, at U.S. Ill L. Ed. 2d at S. Ct. at
728
descriptive words used
the challenged phrase of the statute are
commonly used words with ordinary and popularly understood mean
ings. The
provide
words used
sufficient direction for the trial court to
determine whether the closed circuit
is necessary
to protect the child
witness
a particular
Pointe,
case. See La
88 Ill.
500,
2d at
Accordingly, we conclude the defendant has failed to meet his bur- den of establishing that the statute is unconstitutionally vague. We ad- note ditionally that courts in jurisdictions other have found similar statutes constitutional. See State v. (1990), 56 Ohio 73, St. 3d 79- Self 446, 452-53; 564 N.E.2d People Guce (1990), A.D.2d 53, 56; 560 N.Y.S.2d State v. Crandall (1990), N.J. 577 A.2d 488.
For indicated, the reasons judgment of the circuit court of Rock Island County is affirmed.
Affirmed.
SLATER, J., concurs. STOUDER,
JUSTICE dissenting: I do not agree with the that majority testimony Marcia Rexroat was sufficient to support a that finding would suffer se vere emotional distress that is likely cause her to suffer severe ad verse effects if she testified in front of the defendant. The only logical inference that gleaned can be from Rexroat’s testimony is that any possible effects on T.W. would be minimal. The majority characterizes Rexroat’s testimony that, as “Rexroat minimum, stated at a an in crease in T.W.’s many symptoms could be expected and that more se rious adverse effects were possible.” also (243 Ill. 3d at App. Rexroat’s testimony was actually as follows:
“Q. Can you anticipate at all the degree of that injury could occur?
* * * I A. guess minimally an increase in the that I symptoms listed, have the symptoms that she’s already displaying. And, has everyone worked hard at remedying without lots of success. I would say those minimally symptoms in- crease.”
I have been unable to locate in the record where Rexroat stated that more serious adverse effects Also, were also possible. it must be same for would noted that Rexroat stated that under the of 12. age victim of sexual abuse case to limit a defendant’s constitutional The statute in this seeks terms should be confrontation, and therefore I its right believe finding vic- clearly requires construed. The statute strictly that is to cause her to tim will suffer severe emotional distress *9 I the majority suffer severe adverse effects. fail to understand how the statute. equates testimony finding by the above with the required The states that the of Rexroat’s testi majority import “obvious if mony likely is that serious adverse effects were T.W.testified (243 726.) of the defendant.” Ill. 3d at This assertion App. by finding the the the statute. As the majority required by eviscerates notes, correctly finding that victim will suffer se vere emotional distress is a to she is to prerequisite finding likely that suffer The majority’s response argu severe adverse effects. to this ment by the defendant is ineffectual at the majority only best because considers the latter part finding. The is cor necessary majority rect that the adverse effects” only “severe need be but a “likely,” that finding the victim will suffer severe emotional distress is neces sary first.
Criminal statutes must construed in favor of the ac strictly be nothing cused and should by be taken intendment or be implication yond obvious or literal v. meaning (People statute. Shinkle (1989), 128 Ill. 2d 1238.) language N.E.2d The of the statute must its and plain ordinary meaning (People Sangster v. (1982), 91 Ill. 2d 625), not, N.E.2d and the court may by sub construction, tle alter the plain meaning of the words employed. (Peo ple (1990), v. Goldstein 204 App. 1183.) Ill. 3d 562 N.E.2d It is for the clearly improper to take the term from the majority “likely” latter of part the clause in it question apply part to the earlier where has, the statute uses the term The plainly “will.” majority construction, subtle altered the plain meaning of the statute. Rex roat’s when construed in the manner the stat testimony, required by ute, was insufficient for the court to find that T.W. would suffer se vere emotional distress to likely cause severe adverse effects.
The majority also states that “Rexroat further she testified was concerned about the possibility depression, which could lead T.W.to suicidal ideation (243 and self-mutilation.” Ill. 3d at App. What Rexroat actually said was that ideation are suicidal and self-mutilation symptoms that sometimes following depression. occur childhood Rex roat admitted that T.W. had not exhibited such The any symptoms. statute in question finding a that the victim plainly requires particular a specific case will suffer severe emotional to distress cause severe adverse effects. clearly majority sug- It is erroneous for the to that gest testimony de- regarding symptoms experienced in general can to pressed support children be used the individualized fact, finding by section 106B —1. In if such required regard- testimony ing depressed children in general supply could be used to the neces- sary then the finding, meaningless statute has been rendered because such would testimony justify limitation confrontation in case.
Further, Rexroat’s that T.W. feared the defendant was supply findings. insufficient to In sexual necessary any child abuse case victim would fear the That is probably defendant. proper inquiry. proper inquiry concerns what effect testifying presence of defendant will on the In response have victim. that question, symptoms Rexroat testified that minimally T.W.’s State Crandall increase. majority case, cites New Jersey (1990), proposition 120 N.J. 577 A.2d for the the victim feared the sufficient a finding defendant was the closed circuit should be used. The majority’s reliance on case in misleading. this its support position First all, the issue is whether the Illinois correctly applied statute *10 the facts of this case. Clearly, any by decision the New Jersey Su- preme matter, Court on particularly cannot be relevant this when the Further, New Jersey statutory scheme not even discussed. the deci- Crandall was based that, sion if forced to face courtroom, the defendant in the up say victim would “clam nothing.” (Crandall, at A.2d at N.J. discussion regarding the victim’s fear defendant concerned whether Craig requirements established Supreme Court’s decision in met, had been and had to do nothing with severe emo- finding tional distress. there
Because was no evidence introduced in case this victim would suffer emotional severe distress to cause severe adverse if required testify effects
I would reverse and the cause for a new trial. Use of remand closed-circuit the facts of this case under violated sixth be confronted with the right amendment wit- against nesses him. The has undercut the statute majority seriously holding findings supported by specula- were necessary tive in this case. I dissent.
Accordingly,