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March 27, 1997


Appeal from the Circuit Court of Cook County. Honorable Paul J. Nealis, Judge Presiding.

Released for Publication May 12, 1997.

The Honorable Justice Burke delivered the opinion of the court. Wolfson, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the opinion of the court:

After a jury trial, defendants Janice and Dale Simester, who are married, were each convicted of two counts of criminal neglect of an elderly person and sentenced to 30 months' probation and 1,000 hours of community service. On appeal, defendants contend that the statute under which they were prosecuted, 720 ILCS 5/12--21--a(2) and (3) (West 1992), was unconstitutional, they were not proven guilty beyond a reasonable doubt and they were denied a fair trial because inadmissible and prejudicial evidence was presented by the State. Defendants also contend that the trial court erred in barring their expert from testifying at trial and in refusing their proffered jury instructions. For the reasons set forth below, we affirm.

At trial, the evidence established that defendant Janice Simester lived in the same household with her codefendant Dale Simester, their two young children and the victim, her 74-year-old uncle Stanley Pierzga, who had lived with her and her parents for over 20 years. When Janice's parents died, she continued to live with and care for her uncle in her parents' home.

Thomas Stotts, a paramedic with the Oak Forest Fire Department, testified that at 7:58 p.m. on August 10, 1993, he was called to defendants' home. Janice answered the door and told him that the victim was upstairs. Stotts immediately noticed a strong smell coming from the house and, while proceeding upstairs, the smell became much stronger. He entered the victim's bedroom where he found him lying on the floor in a fetal position. The victim and his bedroom were filthy. The victim's clothes, hands, bedding, floor and television were covered with feces. His clothes were also urine soaked. After checking the victim's vital signs, Stotts shook him but was unable to get a response. When he attempted to roll the victim onto his back, the victim's clothing stuck to the floor. The victim remained in a rigid fetal position even after he had been placed on his back. Because Stotts and the other paramedics who had joined him were becoming ill from the strong smell, Stotts left the room to retrieve a stretcher to remove the victim.

Stotts further testified that because it was police procedure to respond to all ambulance calls, an Oak Forest police officer arrived at the scene. In the presence of the officer, Stotts then asked Janice about the victim. Janice responded that the victim had simply fallen and needed some help. Eventually, the victim was placed on a stretcher and taken to the ambulance. However, the victim's body remained in a retracted, fetal position and his limbs would not relax even when the paramedics pushed on them. After the victim's clothes were removed, he was placed on advanced life support. According to Stotts, the victim appeared very thin, undernourished and dehydrated, and had wet as well as dried feces "pretty much all over him."

Victoria Barrera, an emergency room nurse at Palos Community Hospital, testified that shortly after the victim arrived she had to put on a mask and gown "because the odor was so bad we couldn't be in there without getting taken back by the fumes." She stated that the victim was in a fetal position, had bedsores and was covered with urine and feces. Although the victim was in the emergency room for approximately four hours, the staff could not get him completely clean before transferring him to an intensive care unit.

Dr. John Massimilian testified that he treated the victim when he was brought into the emergency room and found him to be totally covered with dried urine and crusted feces. He described the victim as being "extremely cachectic," indicative of malnutrition and dehydration. A urine output test revealed that the victim was so severely dehydrated as to cause him to be in "profound shock," and that he was also suffering from renal failure. An albumen test indicated that the victim had not had nutritional intake for at least one week and perhaps much longer. Neurological tests indicated that the victim was in a deep coma, which took at least several days to develop and which would have prevented him from speaking earlier in the day. With respect to the victim's rigid fetal position, Dr. Massimilian stated that contracture of that severity generally took at least two weeks to develop. He also stated that the victim's arms and legs had limitations of motion of 85% and 95%, respectively, and that those percentages had to have existed for two weeks prior to his admission to the hospital. The doctor also noted that the victim had a large bedsore on his left hip, which had penetrated to less than an inch from the bone. He stated that the bedsore took approximately one week to develop.

Robert Gayton, a barber, testified in behalf of defendants that Janice would bring the victim to him for haircuts, that the victim was grouchy to Janice and that, while cutting the victim's hair, he noticed a body odor.

Attorney Edward Grossman testified that he drafted the victim's will in 1989. At that time, he noticed that the victim had a body odor, was crotchety and that defendants' house had an odor.

Dale's father, Raymond Simester, testified that when he last saw the victim on July 4, 1993, he was very frail and humped over. He stated that he had known the victim for eight years and that the victim had always had a bad odor about him.

Mary Lynn Smith, Janice's cousin, testified that the victim had always kept himself in an unkempt condition and was generally grumpy. She stated that she had known Janice to be a truthful person.

Defendants sought to call Sara Lieber, a licensed social worker, as an expert witness in geriatric care, and the State objected. The court stated that it would voir dire Lieber and, outside the presence of the jury, Lieber testified that she was a licensed social worker and geriatric care manager, and had a bachelor's degree in sociology. She stated that she had previously testified in criminal cases as an expert on the psychological effects of certain conditions which might have influenced an individual to commit a crime. She stated that she had testified in those cases in her capacity as a social worker and that the cases involved either an insanity defense or that of "battered woman syndrome." She further testified ...

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