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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN PETITT, Defendant-Appellant.
    Second District
    No. 2 — 91—0658
    Opinion filed May 20, 1993.

      Law Offices of Josette Skelnik, of Elgin (Josette Skelnik, of counsel), for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Robert J. Biderman, and Charles E Mansfield, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Alan Petitt, was convicted of aggravated criminal sexual abuse for intentionally fondling the vaginal area of a child under age 13. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(l)(i)-) On appeal, defendant contends that: (1) there was insufficient evidence to find him guilty of the offense beyond a reasonable doubt; (2) evidence implying inappropriate contacts with other children was improperly admitted; (3) the court erroneously prevented a clinical psychologist from testifying as an expert for the defense; and (4) he was denied the effective assistance of counsel. For the following reasons, we reverse and remand.

In February or March 1989, L.R., the victim, slept over at the home of her friend, Amber Petitt. L.R. did not recall the exact date, but thought it was a Friday evening some time prior to March 11, 1989, which was her tenth birthday. L.R., defendant, and Amber were lying on the floor of the bedroom of defendant and his wife watching television. L.R. and Amber Petitt were scratching defendant’s back. L.R. was dressed for bed in a nightshirt and underpants. Defendant was wearing only gym shorts. According to L.R., Amber fell asleep and defendant rubbed L.R. between her legs, in the vaginal area and outside of her underpants, for approximately five minutes. L.R. became frightened and told defendant she wanted to wake Amber and go to bed. Defendant replied that L.R. could wake Amber but what occurred would be their secret. When L.R. informed Amber of the incident when they went upstairs to Amber’s bedroom, L.R. claims that Amber advised L.R. not to worry since defendant did the same to her on a prior occasion.

L.R. informed her mother, M.R., of this incident in October 1989. At L.R.’s request, M.R. refrained from informing L.R.’s father, a Kane County sheriff’s deputy. L.R. believed her father would make a police report, and she was concerned about losing Amber’s friendship. Instead, M.R. set up an appointment for L.R. to speak about the incident with Peggy Malesky, a social worker at L.R.’s school. According to Malesky, L.R. described a frightening experience where a friend's father touched her leg while she rubbed his back. After the first meeting with Malesky, L.R. did not describe the incident again. L.R. and Malesky met approximately three more times and talked about reducing stress. Although L.R. never told Malesky the name of the man or her friend, Malesky learned of defendant’s identity from M.R. and filed a report with the Department of Children and Family Services (DCFS).

On December 7, 1989, L.R. told her father of the incident. The following day, investigator George Hallow from DCFS, two assistant Kane County State’s Attorneys, and Batavia Detective Peter Swanson arrived at L.R.’s home and interviewed L.R. about the incident. Defendant was indicted on one count of aggravated criminal sexual abuse for intentionally fondling the vaginal area of a child under age 13. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(l)(i)-) He was found guilty of the offense following a jury trial. Defendant was sentenced to 30 months’ probation, was ordered to undergo counseling, to pay L.R.’s family $980 for her counseling expenses, and to pay court costs of $91. Defendant’s post-trial motion was denied, and this appeal followed.

Defendant first contends that his conviction should be reversed because the evidence failed to prove him guilty of the offense beyond a reasonable doubt. A criminal conviction in a sex offense case will not be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Schott (1991), 145 Ill. 2d 188, 203; People v. Collins (1985), 106 Ill. 2d 237, 261.) The conviction will not be reversed if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Schott, 145 Ill. 2d at 203.

To sustain its burden of proving a prima facie case of aggravated criminal sexual abuse, the State was required to prove that defendant, who was over 17 years of age, committed an act of “sexual conduct” with the victim, who was under 13 years of age. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 16(c)(l)(i), 12 — 15(2)(b).) “Sexual conduct” is defined in the Criminal Code of 1961 as “any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e).

This case was largely based on the jury’s assessment of the credibility of L.R. and defendant. In addition to L.R.’s testimony about the incident, three witnesses testified for the State under section 115 — 10 of the Code of Criminal Procedure of 1963 concerning L.R.’s statements to them describing or complaining of the incident. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.) M.R., the victim’s mother, testified that in October 1989, L.R. related an incident occurring prior to L.R.’s tenth birthday on March 11, 1989, where defendant “molested” her by rubbing L.R. between her legs. M.R. stated that L.R. did use the word “molest” to describe the incident. M.R. further testified that L.R. informed Amber of the incident, and Amber replied, “he’s done that to me before. Let’s just go to sleep.” Peggy Malesky, the social worker at the victim’s school, testified that M.R. set up an appointment for L.R. to speak with Malesky about the incident. Malesky stated that on November 9, 1989, L.R. told her that while she was staying overnight at a friend’s home, the father of her friend touched her “leg” while she gave him a back rub. When Malesky asked where on her leg did the father touch her, L.R. indicated it was “about mid thigh.” Malesky recalled that L.R. stated the incident occurred during the summer. George Hallow, an investigator for DCFS, testified that L.R. told him she was lying on the floor in Mr. and Mrs. Petitt’s bedroom with Amber Petitt, defendant, and herself. Hallow described the room, related by L.R., as containing a dismantled water bed lying on the floor, a television, end table, and light. According to L.R., as related by Hallow, the only light in the bedroom came from the living room, and the door was cracked about four or five inches. L.R. stated that she was wearing a T-shirt and underpants while she and Amber were giving defendant a back rub. According to Hallow, L.R. informed him that after Amber fell asleep defendant “took his hand and placed it between her legs and up towards her crotch and started to rub her there” for approximately five minutes. When Hallow asked L.R. exactly where defendant touched her, L.R. indicated it was in the vaginal area outside of her underpants. Shirley Robinson, the State’s expert on sexual abuse syndrome, was given a hypothetical situation reflecting the scenario in the instant case. It was Robinson's opinion that the characteristics of the hypothetical girl were “not inconsistent” with a sexually abused person.

Defendant contends that L.R.’s version of the incident is so “inherently improbable” that it raises a reasonable doubt of his guilt. L.R. was confused about the time the alleged incident occurred. At trial, L.R. insisted that it was on a Friday prior to her tenth birthday on March 11, 1989. However, she informed Malesky that the event occurred during the summer. L.R. reported the incident to her mother in October 1989, allegedly after viewing a film on sexual abuse at school. However, L.R. admitted that the video was shown during the previous school year. Although Shirley Robinson, the State’s expert witness on sexual abuse syndrome, testified that victims often delay reporting the abuse, defendant asserts that L.R.’s credibility was impeached by failing to offer an explanation for the eight-month delay. Defendant notes that L.R. continued to socialize with Amber at the Petitt home during this time. At trial, defendant presented evidence that L.R. had a motive to fabricate. L.R. and Amber Petitt had a falling out immediately prior to the time she first reported the incident, and L.R. wrote letters to her teacher complaining that Amber was mad at her and did not want to be her friend.

Although defendant recalls that he may have received a back rub from Amber and L.R., as this. activity was common in the Petitt home, he denies that he touched L.R. improperly. L.R. stated that the water bed in the room was dismantled. To counter L.R.’s recollection of the condition of the room at the time the incident allegedly occurred, several witnesses for the defense testified that they were friends of the Petitts and visited the home often. According to these witnesses, the Petitts remodeled their bedroom during June and November 1988, and the water bed was not dismantled in March 1989 as L.R. claims. To counter L.R.’s statement that the only light in the room came from the living room since the door was cracked open four to five inches, these witnesses testified that the incident could not have occurred when the Petitts were remodeling, since the door to the bedroom was removed at this time. To counter L.R.’s recollection that the incident occurred just prior to March 11, 1989, the defense offered several alibi witnesses who testified of defendant’s whereabouts on several Friday evenings in February and March 1989. Several witnesses who know defendant in the community due to his involvement in Scouts and foster parent activities unanimously testified that his reputation for truth and veracity and for morality and chastity was positive. Further, defendant indicates that L.R.’s report of the alleged incident is uncorroborated. The only evidence that was corroborated was that back rubs are common in the Petitt home. Although two former foster daughters testified that defendant scratched their backs, they denied that any improper contact occurred.

Defendant contends that the varying versions of the incident told by L.R., the motive to fabricate, the unexplained delay in reporting, and the contradictory testimony concerning the condition of the room where the incident allegedly occurred create a reasonable doubt of his guilt. We disagree. The State’s expert testified that it is common for abuse victims to delay reporting the incident. Further, a complaint in a sexual abuse case need not be made within a definite time limit. A delay in reporting the incident may be reasonable if the victim’s silence can be attributed to fear, shame, guilt, or embarrassment. People v. Soler (1992), 228 Ill. App. 3d 183, 199.

In this case, the record indicates that L.R. valued her friendship with Amber Petitt. Although the loss of Amber’s friendship immediately prior to the time L.R. reported the incident indicates a motive to fabricate, there is no direct evidence indicating that the event did not occur. This case is largely based on the credibility of the witnesses. Our review of the record reveals that the inconsistencies in L.R.’s testimony are slight and indicate confusion over the exact time of the alleged event. Where minor inconsistencies or discrepancies exist in a complainant’s testimony but do not detract from the reasonableness of the story as a whole, the complainant’s testimony may be adequate to support a conviction of sexual abuse. (Soler, 228 Ill. App. 3d at 200.) Further, a child witness’ failure to remember dates does not render the testimony unclear as a matter of law. (People v. Hickox (1990), 197 Ill. App. 3d 205, 213.) Our review of L.R.’s testimony reveals that it was not so unclear and inconsistent that it created serious doubts of her credibility. The jury heard all the evidence and was in a superior position to weigh the credibility of the witnesses and draw reasonable inferences from their testimony. Although there were no witnesses to the offense other than the defendant and L.R., the testimony of a sexual abuse victim need not be clear and convincing or substantially corroborated in order to sustain a conviction. (Schott, 145 111. 2d at 203.) Viewing the evidence in the light most favorable to the prosecution, we determine that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and double jeopardy has not attached. People v. Lopez (1987), 152 Ill. App. 3d 667, 682.

Next, defendant contends that he was denied a fair trial when the trial court admitted evidence implying inappropriate contacts with his daughter, Amber Petitt, and two former foster daughters. Although defendant’s new counsel raised this issue in an amended post-trial motion, trial counsel failed to object when this testimony was admitted during trial. Both a trial objection and a written post-trial motion raising the issue are required to preserve alleged errors for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) However, the plain error doctrine may be invoked in criminal cases to review an error which has not been properly preserved for review if either the evidence is closely balanced or the error is of such magnitude that the defendant was denied a fair trial. (134 Ill. 2d R. 615(a); People v. Psichalinos (1992), 229 Ill. App. 3d 1058, 1065.) The evidence in this case was closely balanced. The trial was based largely on the jury’s assessment of the credibility of L.R., section 115 — 10 witnesses, defendant, and defendant’s alibi witnesses. In ruling on defendant’s post-trial motion, the judge characterized this case as one “in which the jury verdict could have gone either way based on the evidence presented.” Further, we believe that if the jury considered the evidence implying that defendant abused other children, defendant would have been denied a fair trial. Therefore, we will consider this issue on the merits notwithstanding the absence of a trial objection.

In this case, Jennifer Lanus and Amanda Prater, foster children living in the Petitt home at the time of the alleged incident, testified that defendant scratched their backs and the backs of other children and asked them and others to scratch his own back. They stated that he sometimes wore a shirt and other times did not. Lanus testified that defendant's actions in scratching her back and brushing her hair were “weird” and made her feel “uncomfortable.” On cross-examination, Lanus explained that she may have felt uncomfortable because she was sexually abused by an adult male prior to her stay in the Petitt home. Amanda Prater testified that she was a foster child formerly living in the Petitt home. She stated that she occasionally allowed defendant to scratch her back, that she sometimes scratched his back, and that both the girls and boys in the home sometimes scratched defendant’s back. In response to the prosecutor’s questioning, Prater denied that defendant ever woke her during the night.

Defendant contends that this testimony was unduly prejudicial because it implies improper contacts and should have been excluded. In child sexual abuse cases, acts of abuse with children other than the present complainant are not admissible as proof of the crime charged unless they show intent, motive, identity, absence of mistake, knowledge, common design, scheme or plan, or modus operandi. (People v. Illgen (1991), 145 Ill. 2d 353, 364-65; People v. Mason (1991), 219 Ill. App. 3d 76, 80.) Our supreme court has even held that evidence of other offenses is admissible if relevant to establish any material issue other than the defendant’s propensity to commit crime. (People v. Stewart (1984), 105 Ill. 2d 22, 62; People v. McKibbins (1983), 96 Ill. 2d 176, 182.) Even if the evidence is admissible, the trial judge may exclude it if the prejudicial effect outweighs the probative value. (People v. Lucas (1992), 151 Ill. 2d 461, 486; People v. Maxwell (1992), 148 Ill. 2d 116, 130.) It is within the sound discretion of the trial court to determine whether the probative value of the evidence substantially outweighs the risk of unfair prejudice. (People v. Manley (1987), 163 Ill. App. 3d 950, 953.) Therefore, the trial court’s decision to admit such evidence will not be overturned on review absent an abuse of discretion. Illgen, 145 Ill. 2d at 364.

Scratching one’s back does not, by itself, constitute a crime, an offense, or even misconduct. Nevertheless, the testimony of Lanus and Prater was offered by the State for the purpose of suggesting that defendant scratched the backs of young girls as a prelude to sexual abuse. If Lanus and Prater related incidents of sexual abuse by defendant following back scratching, their testimony would be admissible as evidence of modus operandi, since the crimes would have shared “ ‘peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant.’ ” (People v. Jendras (1991), 216 Ill. App. 3d 149, 159, quoting People v. Esterline (1987), 159 Ill. App. 3d 164, 169-70; see also Soler, 228 Ill. App. 3d at 203.) Since Lanus and Prater denied that defendant ever touched them improperly, their testimony bore no similarity to the illegal conduct described by L.R. and cannot be considered as evidence of other crimes.

It is arguable that testimony concerning the frequency of backscratching instances in the Petitt home was admissible for the purpose of illustrating the relationship and familiarity between the parties, defendant’s design or course of conduct, and to corroborate the complainant’s testimony concerning the particular acts in support of conviction. (See Soler, 228 Ill. App. 3d at 203; People v. Diaz (1990), 201 Ill. App. 3d 830, 837.) We again note that Lanus and Prater did not describe instances of abuse by defendant and are not complainants in this case. Therefore, their testimony is not probative of defendant’s relationship with L.R. It was offered for the sole purpose of implying that defendant improperly touched young girls. Without any evidence that any improper touching occurred, their testimony was more prejudicial to defendant than probative. Accordingly, the trial court abused its discretion in failing to exclude or strike the portions of Lanus’ and Prater’s testimony implying improper contacts by defendant.

The impact of the improperly admitted testimony of Lanus and Prater was exacerbated by testimony that defendant had improper contacts with his own daughter, Amber Petitt. The jury heard four versions of how L.R. allegedly described the incident to Amber. L.R. testified on direct examination that, following the incident, she told Amber “her dad had like scared [her] and he made [her] feel scared inside.” L.R. testified that Amber replied, “Don’t worry about it, he’s done that to me before.” L.R. admitted on cross-examination that she did not describe the incident or tell Amber that defendant “molested” her. However, she testified that she told Amber defendant “abused [her] and scared [her]” and that she believed Amber understood how defendant allegedly “abused” her. L.R.’s mother, M.R., was allowed to repeat this assertion. M.R. testified that L.R. told her she described what happened to Amber, and Amber replied, “Oh, he’s done that to me before.” Next, Peggy Malesky, the social worker at L.R.’s school, testified that L.R. informed her that following the incident, L.R. told Amber defendant touched her leg, and Amber replied, “ ‘Oh, don’t worry about it.’ ” Finally, George Hallow, the DCFS investigator, testified that L.R. told him that following the incident, she told Amber what defendant did to her, and Amber said, “Well, let’s not tell anybody about this. Let’s keep this a secret between us.”

Section 115 — 10 of the Code of Criminal Procedure of 1963 is a statutory hearsay exception allowing a child to testify that he or she complained of sexual abuse to another. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(1).) The statute also provides a hearsay exception for out-of-court statements made by the child describing any act or detail which is an element of the sexual offense perpetrated upon the child. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(2).) Under section 115— 10(a)(l), L.R. was allowed to testify that she told Amber what defendant allegedly did to her. However, L.R. was not entitled to relate the contents of Amber’s response. Amber’s response to L.R. is hearsay which is not admissible under section 115 — 10. Section 115 — 10 cannot encompass double hearsay statements because they do not carry the indicia of reliability necessary for the admissibility of these type of statements.

M.R., Malesky, and Hallow were entitled under section 115— 10(a)(2) to relate out-of-court statements L.R. made to them describing defendant’s abusive acts. They testified that L.R. told Amber about the incident and that Amber advised L.R. not to worry because defendant did the same to her. M.R., Malesky, and Hallow were not present when L.R. allegedly told Amber about the incident. Their only knowledge that any conversation between L.R. and Amber occurred was from what L.R. told them. Section 115 — 10(a)(2) “clearly mandates that the testifying witness hear the child’s remark personally.” (People v. Mitchell (1992), 228 Ill. App. 3d 917, 932.) Allowing these witnesses to reveal the contents of L.R.’s alleged conversation with Amber was plain error, as these statements constitute inadmissible hearsay on hearsay because these witnesses did not hear the conversation.

Furthermore, their testimony was ambiguous and unduly prejudicial. The witnesses were clear in testifying that Amber responded to L.R. by advising her to keep defendant’s actions a secret and not to worry because defendant had done the same thing to her. The content of Amber’s reply directly depends on L.R.’s statements. However, the witnesses gave widely disparate versions of L.R.’s statements to Amber. M.R. and Hallow testified that L.R. described defendant’s acts to Amber. Malesky testified that L.R. told Amber defendant touched her leg. Furthermore, Amber did not recall a conversation where L.R. told her that defendant touched her improperly. Amber testified that she suffers from arthritis and that defendant sometimes rubs her back and legs to alleviate the pain. Amber denied that defendant ever touched her improperly. The unsubstantiated assertions that defendant molested his own daughter were unduly prejudicial to defendant and constitute plain error.

Next, defendant contends that the court erred in ruling that Dr. Nicholas O’Riordan, a clinical psychologist, was not qualified to give expert testimony in the area of child sexual abuse. Shirley Robinson, a licensed clinical social worker specializing in child sexual abuse, was qualified as an expert for the State. Robinson was allowed to give opinions on post-traumatic child sexual abuse syndrome. The State posed a hypothetical situation similar to the instant case where (1) a 10-year-old girl was fondled on her vagina by the father of a friend; (2) the abuser told the victim not to tell anyone and. that it would be their secret; (3) the victim did not report the incident for eight months because she was afraid of losing the friendship of the abuser’s daughter; (4) the victim became irritable, moody, and had trouble sleeping following the abuse; (5) the victim was initially reluctant to return to the home of the abuser but did return later; (6) the victim convinced her mother to keep the incident a secret from her father because he was a police officer and the victim was afraid her father would make a report; (7) the victim noticed increased frequency in using the bathroom following the abuse; and (8) the victim told a social worker that the abuser did not touch her vagina but merely touched her thigh. Robinson responded that, in her professional opinion, none of the above characteristics are inconsistent with a person who has been sexually abused. Robinson then elaborated, stating that most child victims delay reporting the incident and only realize its impact after viewing a video on sexual abuse. She stated reasons why victims become irritable and moody, have sleep disturbances, use the bathroom more frequently, and delay reporting the incident.

Dr. Nicholas O’Riordan, a clinical psychologist specializing in children and adolescents, was qualified by the court as an expert in psychology in general, but not in the area of child sexual abuse. When defense counsel attempted to elicit opinions from O’Riordan regarding child sexual abuse syndrome, the court sustained the State’s objections. O’Riordan treated Amber Petitt following L.R.’s allegations of sexual abuse against defendant. When defense counsel attempted to have O’Riordan reveal the conclusions of his analysis of Amber, the court sustained the State’s objection as irrelevant.

We do not accept the State’s contention that defendant has waived this argument on appeal by failing to raise an objection when the court refused to qualify O’Riordan as an expert in the area of child sexual abuse. Defense counsel attempted to qualify O’Riordan as an expert to render opinions on sexual abuse syndrome. His motion to qualify O’Riordan was refused by the court. It was not necessary that defense counsel object when the court sustained the State’s objection to O’Riordan’s qualification.

At the hearing on defendant’s post-trial motion, the court refused to allow defense counsel’s offer of proof where O’Riordan would relate what the substance of his testimony would have been had the court allowed him to render opinions on post-traumatic child sexual abuse syndrome and on his analysis of Amber Petitt. Instead, the court accepted counsel’s summary of what O’Riordan’s testimony would have been.

Where a witness is available to testify, an offer of proof should not be made by an attorney’s recitation of the witness’ proposed testimony. (Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 834.) However, the error will be preserved where an attorney makes an informal offer of proof relating the substance of the witness’ proposed testimony with sufficient specificity. (Mulhern, 138 Ill. App. 3d at 834.) In this case, the proper procedure would have been to conduct an in camera offer of proof during trial where O’Riordan explained the substance of his proposed testimony. Contrary to the State’s suggestion, however, defendant has preserved this issue for review by attempting to qualify O’Riordan as an expert during trial and raising the issue in his post-trial motion.

In his offer of proof, defense counsel stated that O’Riordan would have explained the theoretical basis of post-traumatic child sexual abuse syndrome, some of the pitfalls in L.R.’s testimony that the State’s expert witness, Shirley Robinson, did not acknowledge, and psychological conditions other than sexual abuse that exhibit the same symptoms which Robinson opined were “not inconsistent” with sexual abuse. Counsel further stated that O’Riordan would have discussed his opinion of the interview techniques used by DCFS investigators and their impact on L.R.’s allegations. Finally, counsel stated that O’Riordan would have countered the State’s suggestion that defendant molested Amber Petitt by stating that his analysis and testing of Amber revealed no indications that she had been sexually abused. Although the court should have allowed O’Riordan to testify as an offer of proof, defense counsel’s statements were of sufficient specificity to preserve the issue for review.

On appeal, defendant contends that the court abused its discretion in failing to allow O’Riordan to give opinions on child sexual abuse syndrome and reveal the findings of his analysis of Amber Petitt. An expert is a person who, because of special education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation. (134 Ill. 2d R. 220(a)(l).) Expert testimony in the form of an opinion on an ultimate issue in a case is admissible if it will aid the jury in understanding the facts. (People v. Lambrecht (1992), 231 Ill. App. 3d 426, 438; Fitzpatrick v. A C F Properties Group, Inc. (1992), 231 Ill. App. 3d 690, 704.) In a prosecution for a sexual act perpetrated on a victim, including child sexual abuse, expert testimony relating to any recognized and accepted form of post-traumatic stress syndrome is admissible. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.2.) The person tendered to give expert testimony must first be qualified by the court. (Ill. Rev. Stat. 1989, ch. 38, par. 115— 7.2.) The adequacy of an expert witness’ qualifications is a matter within the sound discretion of the trial court which will not be disturbed on review absent an abuse of discretion. Fitzpatrick, 231 Ill. App. 3d at 704.

In this case, Shirley Robinson, a social worker, was qualified as an expert witness for the State and was allowed to render the common symptoms of post-traumatic child sexual abuse syndrome and give an opinion of whether a child in a hypothetical situation substantially similar to the instant case was sexually abused. Although the court qualified O’Riordan as an expert in the field of psychology, it refused to allow him to render opinions or other information on post-traumatic child sexual abuse syndrome and from revealing the findings of his analysis of Amber Petitt. O’Riordan has a master’s degree and a Ph.D. in psychology and has been a clinical psychologist since 1980. He works primarily with children and adolescents in the area of psychological interviewing, testing, and evaluation. O’Riordan held the following positions in his career: staff psychologist at the Cook County Juvenile Detention Center; staff psychologist in the child development unit at Mercy Center for the Health Care Sciences; staff psychologist for the Du Page County jail; and part-time private practice with a staff psychologist. O’Riordan’s internship was with Hines Veterans Administration Hospital and the Institute for Juvenile Research. He has taught psychology at a junior college, was a teaching assistant while in school, and has taught psychological ethics for the Illinois Professional College of Psychologists. Five to ten percent of his present caseload involves sexual abuse. O’Riordan further testified that there is no doctorate degree specializing in sexual abuse.

Although O’Riordan has not limited his practice to the area of sexual abuse, an adequate foundation was laid for O’Riordan to testify in the area of post-traumatic child sexual abuse syndrome. The indicia of expertise is not measured by a given level of academic qualifications, but whether the expert has knowledge and experience beyond the average citizen which would assist the jury in evaluating the evidence. (People v. Douglas (1989), 183 Ill. App. 3d 241, 254.) It does not matter whether the proposed expert acquired specialized knowledge through education, training, experience, or a combination of each. (People v. Pollard (1992), 225 Ill. App. 3d 970, 976.) Section 115 — 7.2 formerly allowed only behavioral psychologists, psychiatrists, or physicians to be qualified as experts to testify in the area of post-traumatic stress syndrome following sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7.2.) The amendment to the statute providing that the testimony of “an expert, qualified by the court,” expanded, rather than narrowed, the field of persons qualified to testify in this area. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.2; Pollard, 225 Ill. App. 3d at 976-78; People v. Wasson (1991), 211 Ill. App. 3d 264, 271; People v. Kelly (1989), 185 Ill. App. 3d 43, 51; Douglas, 183 Ill. App. 3d at 254.) O’Riordan’s academic qualifications, studies, and experience in evaluating children are more than sufficient to qualify him as an expert under section 115 — 7.2 of the Code of Criminal Procedure of 1963 and allow the scope of his testimony to encompass opinions on post-traumatic child sexual abuse syndrome. Therefore, the court abused its discretion in refusing to allow O’Riordan to testify in this area.

The trial court also foreclosed O’Riordan from revealing the findings of his analysis of Amber Petitt by ruling that the evidence was not relevant. Evidence is considered “relevant” if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. (Illgen, 145 Ill. 2d at 366.) Evidence of other offenses is not admissible for the purpose of establishing the defendant’s disposition or propensity to commit crime. It is admissible, however, where relevant to prove modus operandi, intent, identity, motive, or absence of mistake. (Illgen, 145 Ill. 2d at 364-65.) Although Amber was not a party and denied any sexual abuse by defendant, the issue of whether Amber was sexually abused by defendant was put into dispute by the State. The court allowed the State to introduce evidence implying that Amber was sexually abused by defendant via testimony of four section 115 — 10 witnesses who stated that L.R. told Amber of the incident and that Amber advised L.R. not to worry because defendant had done the same to her on a prior occasion. We previously determined that the manner in which the State elicited this evidence was hearsay not admissible under section 115 — 10. Since the evidence was admitted, the issue of whether Amber was sexually abused was presumptively relevant. Therefore, the trial court abused its discretion in failing to allow O’Riordan to give an opinion as to whether Amber was sexually abused by defendant as her treating physician.

Lastly, defendant claims that he received ineffective assistance of trial counsel in that counsel failed to (1) contest the reliability of evidence introduced under section 115 — 10; (2) challenge the introduction of evidence implying defendant had improper contacts with two foster children; (3) object when section 115 — 10 witnesses were allowed to testify to hearsay statements allegedly made by Amber Petitt informing L.R. that defendant sexually abused her on a prior occasion; (4) pursue his request for a bill of particulars stating the exact date of the alleged offense; (5) qualify O’Riordan as an expert to testify in the area of post-traumatic child sexual abuse syndrome pursuant to section 115 — 7.2, and to inquire what O’Riordan’s qualification as an expert in the area of psychology allowed him to offer; and (6) counsel introduced evidence prejudicial to the defense concerning the result of a DCFS investigation.

There is a strong presumption that counsel’s performance at trial fell within the range of acceptable behavior. (People v. Wright (1992), 149 Ill. 2d 36, 46.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel’s performance was so seriously deficient that it fell below an objective standard of reasonableness; and (2) counsel’s deficient performance was so prejudicial that defendant was denied a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525.) To show actual prejudice, defendant must demonstrate that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Titone (1992), 151 Ill. 2d 19, 36.

We have already determined that defendant was unduly prejudiced by the admission of hearsay indicating defendant sexually abused his daughter Amber, by the testimony of defendant’s foster daughters implying defendant had a propensity for improperly touching young girls, and by failing to allow O’Riordan to give expert opinions on post-traumatic child sexual abuse syndrome and to reveal the findings of his analysis of Amber Petitt. We have not addressed the necessity of a bill of particulars or the admissibility of an adverse ruling by DCFS. Although these errors may have resulted in ineffective assistance of counsel, in light of our reversal on other grounds, it is unnecessary to address defendant’s contentions as to these issues.

At trial, defendant presented various witness to give an opinion on his reputation in the community for truth and veracity and for morality and chastity. When Gaylord Sheffey, a DCFS employee who placed foster children in the Petitt home, testified that defendant’s reputation was “outstanding,” the court sustained the State’s objection. Sheffey was only allowed to characterize defendant’s reputation as “good.” When Deborah Pierson, who knew defendant through scouting activities, stated that defendant’s reputation was “excellent,” her comment was stricken. Similarly, other character witnesses for the defense were allowed to give only a “good” or “bad” response.

In criminal cases, the State may not introduce evidence of a pertinent character trait of defendant as part of its case in chief. (People v. Barrow (1989), 133 Ill. 2d 226, 262.) This type of evidence is prejudicial because it may cause the jury to believe the defendant is a bad person, likely to be guilty of the crime charged. (People v. Starks (1983), 116 Ill. App. 3d 384, 391, appeal after remand (1988), 169 Ill. App. 3d 588.) However, a defendant may offer proof of his good character to establish that his character traits are inconsistent with the commission of the crime charged. People v. Lewis (1962), 25 Ill. 2d 442, 445; People v. Flax (1986), 147 Ill. App. 3d 943.

In this case, the witnesses were asked to give an opinion on defendant’s general reputation for truth and veracity and for morality and chastity. Inquiry into defendant’s character must relate to the nature of the crime involved. Evidence of general reputation for a character trait not involved in the crime charged is not admissible. (People v. Crosser (1983), 117 Ill. App. 3d 24, 31.) A defendant’s reputation for morality and chastity is relevant in a prosecution for criminal sexual abuse. (See Lewis, 25 Ill. 2d at 444.) However, defendant’s reputation for truth and veracity is not at issue in a prosecution for criminal sexual abuse, and defense counsel was not entitled to bolster defendant’s credibility by eliciting opinions on defendant’s reputation for this trait. See Crosser, 117 Ill. App. 3d at 30.

Proof of the relevant character trait involved is made by showing the defendant’s general reputation in the community based on the witnesses’ affiliation with the defendant’s neighbors and friends. (Lewis, 25 Ill. 2d at 445; People v. House (1990), 197 Ill. App. 3d 1017.) Evidence of specific acts or personal opinion is inadmissible. (People v. Barnes (1989), 182 Ill. App. 3d 75, 79.) In this case, the evidence was closely balanced. Defendant’s conviction was largely based on the jury’s assessment of the credibility of defendant and the victim. Although defendant has not raised the issue of any error occurring from the court’s ruling, the issue of defendant’s reputation for morality and chastity will be raised on remand. The witnesses were entitled to state that defendant’s reputation in the community for morality and chastity was “excellent” or “outstanding,” or whatever adjective they chose to describe defendant. The court’s practice of curtailing the witnesses’ testimony concerning the defendant’s character to “good” or “bad” responses constituted plain error and should not occur on remand.

For the foregoing reasons, we reverse the judgment of the circuit court of Kane County and remand this cause to the trial court for further proceedings in conformance with the opinion of this court.

Reversed and remanded.

INGLIS, P.J., and BOWMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE QUETSCH JUSTICE McLAREN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKEY FLORES, Defendant-Appellant.
    Second District
    No. 2 — 91—0432
    Opinion filed May 20, 1993.

      McLAREN, J., specially concurring.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

After a bench trial, the trial court found defendant, Rickey Flores, guilty of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18— 2(a)). The trial court sentenced defendant to six years’ imprisonment. Defendant appeals contending: (1) the trial court erred in refusing to allow him to withdraw his waiver of a jury trial on the ground that the waiver was not knowing and intelligent, and (2) his trial counsel was ineffective. We affirm.

The following evidence was presented at defendant’s trial. Ariel Sanchez, a minor, testified for the State. Sanchez testified that on August 16, 1989, he, defendant and Minor Velasquez decided to rob the Delta Sonic Car Wash (Delta Sonic) in Elmhurst, Illinois. According to Sanchez, defendant suggested they rob the Delta Sonic because he had previously done work on the roof of that establishment. The three individuals gathered supplies, including nylon stockings to use as masks, extra sets of clothing, a bag, rope, and a baseball bat. They then discussed what each person’s job would be in the robbery. Sanchez was to hold the bag and carry the money. Velasquez was to be the lookout. Defendant was to do the talking and carry the bat.

Sanchez, Velasquez, and defendant drove to the Delta Sonic and parked in the adjacent Burger King parking lot. They put the stocking masks over their heads and walked the short distance to the Delta Sonic. Defendant was carrying the bat. They arrived at the Delta Sonic as it was closing. They noticed a man in the parking lot. Sanchez later learned that this man was Robert Maggi. The three individuals approached Maggi. Defendant was holding the bat with his fists together as if he were about to hit a ball. Defendant instructed Maggi to return to the building and turn off the alarm. Maggi complied. All four individuals entered the building.

There were two safes in the car wash. One safe was in the office and one was outside the office. Defendant instructed Maggi to open the safe outside the office. Maggi complied and Sanchez took the money and threw it into the bag. Defendant then instructed Maggi to open the safe inside the office. Sanchez took the money from that safe and put it into the bag. Velasquez took Maggi’s wallet and he also took two cartons of cigarettes from the car wash’s convenience store.

Sanchez claimed defendant then told Maggi to lie on the floor and count to 100. Defendant also told Maggi there was someone outside the store with a shotgun. The three left the Delta Sonic and ran to the car. On their way back to the car, they dropped some of the money, the cigarettes, the bat, and two of the masks. They did not bother to pick up these items. They returned to Velasquez’ house and split up the money. Each person received $1,500.

On cross-examination, defendant’s attorney elicited testimony from Sanchez that it was Sanchez who recruited Velasquez, but that Sanchez told Velasquez defendant had planned the robbery. Defendant’s counsel also elicited the statement that during the alleged robbery defendant told Maggi, “If you don’t move I am going to kick your ass.”

Officer Michael Campise of the Elmhurst police department testified for the State. Campise stated that at 10:36 p.m. on August 16, 1989, he made a traffic stop of a car which had no registration tags. According to Campise, Velasquez was the driver of the car and there were two passengers. Campise testified that “the subject sitting *** at the defense table *** looks familiar as the subject, possibly sitting in the front passenger side.” He also noticed a bat in the backseat of the car. Velasquez explained to Campise that he carried the bat with him for protection. Campise did not further detain the occupants of the car.

Officer Herb Hogberg of the Elmhurst police department also testified for the State. Hogberg was involved with the investigation of the Delta Sonic robbery. Hogberg stated that a carton of cigarettes, nylon stockings, and a baseball bat were recovered from the Delta Sonic. The State attempted to elicit testimony from Hogberg that defendant made incriminating statements to Hogberg. The trial court granted defendant’s motion to suppress these statements.

Robert Maggi testified for the State that he was the night manager of the Delta Sonic. He stated that at approximately 10:30 or 11 p.m. on August 16, 1989, he locked up the Delta Sonic and as he was getting into his car he noticed some movements behind the building. As he then got out of his car, three men approached him. Two were carrying baseball bats and all three had stocking masks on their heads. He could not identify the men, but he stated the taller of the men appeared to be the leader. Of the shorter men, one was heavy and the other was thin.

The taller man, who was carrying a bat, told Maggi to return to the building and open it up. Two of the men pushed him toward the building by prodding him with a bat. At their insistence, he disengaged the alarm. He testified that there were two safes in the Delta Sonic. One was in the car wash portion of the establishment and the other was in the convenience store portion. Each safe had a top compartment which contained $150 and a set of keys to the bottom compartment. The bottom compartment of each safe contained the day’s receipts. The men ordered Maggi around to the back of the building to the car wash safe. Pursuant to the men’s demands, Maggi opened both compartments of the safe, and one of the shorter men took the money. The men then directed Maggi to the convenience store and ordered him to open the safe located there. Maggi stated he had trouble opening the second safe because it was dark inside the store. The short heavy man suggested that they hit Maggi, but the taller man insisted that they give him another chance. Maggi eventually opened the second safe and the men took the money. The short thin man was grabbing items off of the store shelves. According to Maggi, it was also the short thin man who took the money out of the safes.

Maggi was ordered to lie on the floor and count to 100, and was also told that there was another man waiting outside with a shotgun. After the men left, Maggi got up and noticed his wallet and car keys, which he had left by the alarm, had been stolen. He called the police. Maggi stated that during the incident he was threatened with bodily harm five times and prodded in the back with the bat. We turn now to our discussion of the issues raised on appeal.

I. WAIVER OF RIGHT TO JURY TRIAL

First, defendant contends the trial court erred in refusing to permit defendant to withdraw the waiver of his right to a jury trial. The record reveals that, prior to trial, defendant’s attorney attempted, unsuccessfully, to negotiate a plea agreement with the State whereby defendant would plead guilty to the lesser included offense of robbery.

The record also reveals that, until the date of trial, different prosecuting attorneys represented the State throughout the proceedings in this cause and different judges presided over the proceedings as well. One judge, on June 28, 1990, presided over the hearing on defendant’s motion to strike the indictment. Craig Chval represented the State. The same judge continued to preside through the September 27, 1990, hearing, after which he left the trial court. Beginning July 26, 1990, Jill Wilger represented the State. Her representation continued through the January 7, 1991, hearing, although Chval took her place a few times. Another judge began to preside over the proceedings at the October 19, 1990, status hearing and continued to preside through the January 7, 1991, hearing, and, on January 7, 1991, accepted defendant’s jury waiver and continued the case for trial. The trial began on February 5, 1991. Because prosecutor Wilger was sick, Jeffrey Kendall and Robert Kleeman represented the State. Judge Mehling presided.

On the day of trial, the judge inquired as to whether the cause was up for a bench trial. Defendant’s attorney replied in the affirmative and stated that he was close to reaching a plea agreement with the State. The trial court passed the case so that defendant’s attorney could speak with prosecutors Kendall and Kleeman. The parties, however, were unable to reach an agreement.

After a hearing on some preliminary matters, and after the prosecutor again refused to reduce the charge to robbery, defendant’s counsel moved to withdraw his jury waiver on the ground that it was based on the assumption that he would reach a plea agreement with the State. Defendant’s attorney argued that he had been close to reaching an agreement with Wilger and that it was unfair for the State to substitute Kendall and Kleeman, who refused to agree to the reduced charge. The trial court denied defendant’s motion and the parties proceeded to trial on the armed robbery charge.

A defendant’s waiver of his right to a trial by jury must be knowing and intelligent. (Ill. Rev. Stat. 1991, ch. 38, par. 103 — 6; People v. St. Pierre (1992), 146 Ill. 2d 494, 508.) Defendant must understand the right he is giving up and the consequences of the waiver. (People v. Catalano (1963), 29 Ill. 2d 197, 202; United States v. Rosa (7th Cir. 1991), 946 F.2d 505, 507.) Whether to allow a defendant to withdraw a jury waiver that has been knowingly and intelligently made is within the discretion of the trial court. People v. Hall (1986), 114 Ill. 2d 376, 414.

At the January 7, 1991, hearing, when asked whether he wanted a jury trial or a bench trial, defendant stated that he wanted a bench trial. The record establishes that on that same day defendant signed a form which stated that he had been advised of his right to a trial by jury and that he waived that right, electing instead to be tried by the court. Defendant was represented by counsel when he executed the jury waiver. These facts are sufficient to establish that defendant knowingly and intelligently waived his right to a jury trial. People v. Clauson (1989), 182 Ill. App. 3d 268, 273; People v. Villareal (1983), 114 Ill. App. 3d 389, 392.

Defendant contends his jury waiver was not knowing and intelligent, however, because it was based on the mistaken belief that the State would agree to allow him to plead guilty to simple robbery. Defendant is correct in asserting that a change in circumstances can sometimes entitle a defendant to withdraw his guilty plea. (People v. Norris (1978), 62 Ill. App. 3d 228, 233; People v. Smith (1973), 11 Ill. App. 3d 423, 425.) However, the record belies defendant’s assertion that his jury waiver was based on his belief that the State would agree to a reduced charge. At the January 7, 1991, hearing, when defendant executed his jury waiver, the issue of whether defendant’s charge would be reduced from armed robbery to robbery was still unresolved. That defendant or his counsel hoped that the State would eventually agree to the reduced charge does not invalidate defendant’s waiver.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant contends that his trial counsel’s performance was constitutionally defective because he failed to subject the State’s case to meaningful adversarial testing. The State points out that defendant did not raise his ineffective assistance of counsel claim in his post-trial motion. Issues not raised before the trial court are generally waived on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) However, the defendant’s trial counsel, the same attorney who defendant now claims was ineffective, prepared defendant’s post-trial motion. Furthermore, the alleged errors are substantial and of constitutional magnitude. Therefore, we will review defendant’s ineffective assistance of counsel claim under the plain error doctrine. People v. Chandler (1989), 129 Ill. 2d 233, 242; People v. Siverly (1990), 194 Ill. App. 3d 981, 989.

In order to succeed on a claim of ineffective assistance of counsel, defendant must show that his “counsel’s shortcomings were so serious as to ‘deprive the defendant of a fair trial, a trial whose result is reliable.’ ” (People v. Albanese (1984), 104 Ill. 2d 504, 525, quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Defendant must also show that he was prejudiced by his attorney’s errors. In other words, he must “establish ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Albanese, 104 Ill. 2d at 525, quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.

When considering defendant’s claim of ineffective assistance of counsel, we entertain a strong presumption that defendant’s attorney acted within the wide range of reasonable, competent assistance. (People v. Johnson (1989), 128 Ill. 2d 253, 266; People v. Joyce (1992), 234 Ill. App. 3d 394, 408.) We also generally refuse to second-guess defendant’s attorney’s trial strategy. People v. Potthast (1991), 219 Ill. App. 3d 714, 720; People v. Bell (1987), 152 Ill. App. 3d 1007,1011.

In some exceptional cases, where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” prejudice is presumed and defendant need not show that his counsel’s errors resulted in actual prejudice. (United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047; People v. Hattery (1985), 109 Ill. 2d 449, 461.) Courts will presume prejudice only in an extremely narrow class of cases where there has not been a true adversarial relationship between defendant and the State. People v. Watts (1992), 226 Ill. App. 3d 519, 523; People v. Pickett (1991), 217 Ill. App. 3d 426, 428-29.

Defendant essentially argues he was denied effective assistance of counsel in this case because: (1) defense counsel conceded defendant’s guilt; (2) defense counsel’s argument that defendant should have been prosecuted for robbery rather than armed robbery was unreasonable because a bat is a dangerous weapon within the meaning of the armed robbery statute; (3) defense counsel’s argument that the State was collaterally estopped from prosecuting defendant on the charge of armed robbery because defendant’s accomplices pleaded guilty to robbery was contrary to existing case law; and (4) defense counsel argued it was “wrong” to prosecute a young man with no criminal history on a Class X felony charge. We turn now to our discussion of these contentions.

First, defendant argues that he was deprived of effective assistance of counsel because defense counsel conceded his guilt. We disagree.

Defendant is correct that a defense attorney’s concession of his client’s guilt can fall into the extreme class of ineffective assistance of counsel where prejudice is presumed. (People v. Hattery (1985), 109 Ill. 2d 449, 465.) In People v. Hattery, defendant was accused of murdering a woman and her two young children. Defendant pleaded not guilty. At trial, however, defense counsel conceded that defendant was guilty of the murders and that he was eligible for the death penalty. Counsel’s strategy throughout the guilt phase of the trial was to convince the jury that it should not sentence defendant to death. (Hattery, 109 Ill. 2d at 458-59.) Counsel never presented any evidence nor made any argument in support of any defense to murder. Instead, when cross-examining the State’s witnesses, he attempted to elicit testimony which tended to prove that defendant was under a compulsion to commit the murders. While compulsion is not a defense to murder, it can be a mitigating factor at sentencing. Hattery, 109 Ill. 2d at 459.

The court held defense counsel’s unequivocal concession of defendant’s guilt prevented the State’s case from being subjected to “ ‘meaningful adversarial testing.’ ” (Hattery, 109 Ill. 2d at 464, quoting United States v. Cronic (1984), 466 U.S. 648, 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045.) The court emphasized that in that case, despite defendant’s plea of not guilty, counsel provided the jury with no opportunity to determine whether defendant was guilty. (Hattery, 109 Ill. 2d at 464.) Even where the State’s case is strong, a defendant who pleads not guilty is entitled to force the State to meet its burden of proof beyond a reasonable doubt. (Hattery, 109 Ill. 2d at 465.) The court held that even if counsel’s strategy might have seemed reasonable in light of the overwhelming evidence of defendant’s guilt, that strategy was nevertheless impermissible. Therefore, prejudice was presumed and defendant did not need to show that the result of his trial would have been different had counsel acted permissibly. Hattery, 109 Ill. 2d at 464-65.

However, Hattery has been read narrowly. Prejudice is only presumed where defense counsel has clearly, unequivocally, and without defendant’s consent conceded every significant aspect of defendant’s guilt. See People v. Campos (1992), 227 Ill. App. 3d 434, 447.

More recently, our supreme court held that defense counsel does not always harm his client by conceding his client’s guilt. In People v. Johnson (1989), 128 Ill. 2d 253, 269-70, defense counsel conceded defendant was guilty of murder but did not concede other charges facing defendant. Because the evidence was overwhelming that defendant committed the murder, and because defense counsel provided defendant with a defense to some of the State’s charges, the court concluded Hattery did not apply. (Johnson, 128 Ill. 2d at 270.) According to the court:

“In situations where there is overwhelming evidence of guilt and no defense, if counsel contests all charges he is liable to lose credibility with the trier of fact when it comes to charges where a legitimate defense exists.” Johnson, 128 Ill. 2d at 270.

Where a defendant literally has no defense, defense counsel need not manufacture one. (People v. Ganus (1992), 148 Ill. 2d 466, 473; People v. Young (1991), 220 Ill. App. 3d 98, 108.) Thus, while part of defense counsel’s strategy in this case appears to have been based on the hope that the trial judge would decline to follow the law (see United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798, 804), defense counsel did not clearly and unequivocally concede his client’s guilt to the armed robbery. Therefore, Hattery is not controlling and, accordingly, there is no presumption of prejudice.

In his opening statement, defendant’s trial attorney stated, “[w]e have pointed out that we are not questioning at this time the presence and even some participation by Rick Flores in the unhappy occasion.” However, at no point did defense counsel concede that defendant used a bat in the robbery. Nor did counsel admit the “guilt” of his client to either robbery or armed robbery. Thus, defense counsel’s arguments did not amount to ineffective assistance of counsel.

Defendant next argues he was deprived of effective assistance of counsel by defense counsel having argued that defendant should have been prosecuted for mere robbery rather than armed robbery, by contending that a bat is not a dangerous weapon within the meaning of the armed robbery statute, and that, thus, defense counsel’s argument was unreasonable. “Robbery” is defined as the taking of the property of another by using or threatening to use force. (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 1(a).) A person commits armed robbery by committing robbery while armed with a dangerous weapon. (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 2(a).) Unlike armed robbery, which is a Class X offense, robbery is probationable. In a motion to strike the indictment, defendant’s attorney attempted to convince the court to reduce the charge from armed robbery to robbery. Defense counsel argued that defendant could not be prosecuted for armed robbery because the baseball bat was not a dangerous weapon because it was aluminum and because defendant never threatened anyone with it.

At the close of the State’s evidence, defense counsel moved for a directed finding that defendant was not armed with a dangerous weapon when he committed the robbery. In support of that motion, defendant’s attorney argued at one point, “Certainly, this [the bat] is not an object which was dangerous per se and in the use, there is no indication that this man who seemed to hold a bat at all times did not do otherwise with the bat and, as to threaten immediate harm except make a suggestion.” Defense counsel also made a great deal of Maggi’s testimony that the taller man, apparently defendant, told the shorter man not to beat Maggi but to give him another chance.

Whether the baseball bat used in the robbery was a dangerous weapon depends on the character of the baseball bat and its susceptibility for use in a manner likely to cause death or serious injury. (People v. Skelton (1980), 83 Ill. 2d 58, 65; People v. Dwyer (1927), 324 Ill. 363, 365; People v. Westefer (1988), 169 Ill. App. 3d 59, 61.) The purpose of the armed robbery statute is to treat more severely a person who commits a robbery while possessing a weapon actually capable of causing serious injury than a person who commits a robbery without possessing such a weapon. Skelton, 83 Ill. 2d at 64.

In defining the term “dangerous weapon” for the purposes of the armed robbery statute, courts have divided objects into four categories. (People v. de la Fuente (1981), 92 Ill. App. 3d 525, 535-36.) The first category contains objects which are dangerous per se such as knives and loaded guns. (People v. Neither (1988), 166 Ill. App. 3d 896, 900; de la Fuente, 92 Ill. App. 3d at 535.) A knife or a loaded gun, when used in a robbery, is always considered a dangerous weapon. The second category contains objects which are never dangerous weapons. For example, our supreme court held that a 41/2-inch plastic toy gun, as a matter of law, was not a dangerous weapon. (Skelton, 83 Ill. 2d at 66.) The third category contains objects which are not necessarily dangerous weapons but can be used as such. (Dwyer, 324 Ill. at 364-65.) Unloaded guns or toy guns made of heavy material fall into this category, since they are incapable of shooting bullets but can be used as bludgeons. (People v. Bayless (1981), 99 Ill. App. 3d 532, 538.) Whether an object in this category is a dangerous weapon is a question of fact to be resolved by the trier of fact. (Skelton, 83 Ill. 2d at 66; People v. Garcia (1992), 229 Ill. App. 3d 436, 438.) The fourth category contains objects which would normally fall into the third category, but which were actually used in a dangerous manner in the course of the robbery, de la Fuente, 92 Ill. App. 3d at 536 (where defendant actually bludgeoned victim with unloaded gun).

Our supreme court explained in Dwyer.

“Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.” Dwyer, 324 Ill. at 365.

Accordingly, the issue here is whether, given the facts of this case, the trial court could have found that the baseball bat was not a dangerous weapon. Because a baseball bat was not designed to cause injury, it is not inherently dangerous as is a knife or a loaded gun. Being that this issue presents a question of fact, we believe that it is conceivable that the trial court in this case could have found that the bat used in the robbery was not a dangerous weapon. (Skelton, 83 Ill. 2d at 65; Dwyer, 324 Ill. at 365.) Thus, the arguments of defense counsel to that effect did not deprive defendant of effective assistance of counsel.

In attempting to convince the trial court in this case that the baseball bat used in the robbery was not a dangerous weapon, defense counsel employed a defense strategy that was desperate and, ultimately, unsuccessful. However, a defendant cannot generally make out a claim for ineffective assistance of counsel based on his counsel’s trial strategy. People v. Shum (1987), 117 Ill. 2d 317, 370; People v. Madej (1985), 106 Ill. 2d 201, 214; People v. Whittaker (1990), 199 Ill. App. 3d 621, 628-29.

Defendant also contends he was denied effective assistance of counsel when defense counsel argued at trial that collateral estoppel precluded defendant’s conviction of armed robbery because his accomplices were permitted to plead guilty to the lesser included offenses of robbery. This argument conflicts with the clearly established rule that a defendant can be prosecuted for an offense even where accomplices to the same offense are not prosecuted or are prosecuted for lesser offenses. (People v. Bartlett (1980), 91 Ill. App. 3d 138, 142; see also Ill. Rev. Stat. 1991, ch. 38, par. 5 — 3.) However, such an argument does not amount to ineffective assistance of counsel.

Lastly, defendant argues he was denied effective assistance of counsel when defense counsel argued that defendant should not be convicted of a Class X felony because of his age and his lack of prior criminal history. Defendant was 19 years of age at the time. At the July 28, 1990, hearing, counsel attempted to convince the trial court to strike the indictment. Defense counsel argued:

“The way the Statute has been reading, that the mere presence of a gun, mere presence, you know, this is a very important thing because it is a difference between an 18 year old kid being eligible, who has no record, being eligible for probation. So we can, and make a life for somebody and having somebody with a Class X and get him into, into the company that is going to make him a career criminal for the rest of his life when he gets out as an old man. It doesn’t make any sense at all.”

This conversation is indicative of defense counsel’s trial strategy. Defense counsel attempted to convince the trial court that following the law would produce an inequitable result. Again, a defendant cannot generally make out a claim for ineffective assistance of counsel based on counsel’s trial strategy. People v. Shum, 117 Ill. 2d at 370; People v. Whittaker, 199 Ill. App. 3d at 628-29.

Thus, we conclude based on the entire record, including the unshaken testimony of coperpetrator Sanchez, the evidence of defendant’s guilt of armed robbery was overwhelming and, accordingly, there is no reasonable probability that, but for defense counsel’s performance, the result would have been different. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Chandler, 129 Ill. 2d at 248-50; People v. Albanese, 104 Ill. 2d at 524-27.) We emphasize the fact that trial counsel in this case succeeded on a motion to suppress defendant’s statements, cross-examined all witnesses, vigorously argued to the trial judge the legitimate defense theory that the bat was not (factually) a dangerous weapon and, throughout the trial, engaged in meaningful adversarial testing of the State’s case.

Trial counsel’s performance, tactics, and strategy, when viewed in light of the evidence presented in the case, cannot be described as deficient or having fallen below an objective standard of reasonableness or having deprived defendant of a fair trial. (People v. Winsett (1992), 153 Ill. 2d 335, 346-47, 364-65; People v. Hrobowski (1991), 216 Ill. App. 3d 711, 724-26.) Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, J., concurs.

JUSTICE McLAREN,

specially concurring:

I concur in the opinion but wish to clarify a point regarding People v. de la Fuente (1981), 92 Ill. App. 3d 525. de la Fuente (92 Ill. App. 3d at 535-36) attempts to classify four categories of deadly weapons. However, I believe that the second category is essentially the same as the fourth category because the fourth category merely determines that an object becomes a deadly weapon when it is used in a deadly manner.

If the issue were only whether there were three or four classes, I would let this point pass. However, de la Fuente determines that fourth class deadly weapons are dangerous per se because of the manner in which they were actually used. I believe this holding does violence to the definition of per se. I believe a per se deadly weapon is a deadly weapon regardless of how it is used. Thus, a deadly weapon, based upon its use, does not become a per se deadly weapon simply because it was used in a deadly manner.

In the instant case, the defendant’s counsel argued that the baseball bat was not a deadly weapon because it was not actually used as such. I do not wish to imply, by my concurrence, that I agree a baseball bat becomes a per se deadly weapon when used as a bludgeon. Regardless whether a baseball bat is or may be used as a bludgeon, it does not, in my opinion, become a per se deadly weapon simply because it was used in a deadly manner. My concurrence is an attempt at ameliorating the corruption of the term “per se deadly weapon.”

In all other aspects of the opinion, I concur.


author: JUSTICE WOODWARD JUSTICE DOYLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TERRY TUCKER, Defendant-Appellee.
    Second District
    No. 2 — 91—1478
    Opinion filed May 26, 1993.

      DOYLE, J., dissenting.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas J. DeMik, of Freeport, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The State appeals from an order of the circuit court of Stephenson County granting the petition of the defendant, Terry Tucker, for rescission of the summary suspension of his driving privileges (Ill. Rev. Stat. 1991, ch. 951/2, par. 2 — 118.1). The sole issue raised on appeal is whether the trial court erred in determining that the defendant had presented a prima facie case for rescission of the summary suspension.

Defendant’s petition raised the following grounds: (1) that defendant was not properly placed under arrest; (2) that the arresting officer did not have reasonable grounds to believe the defendant was driving under the influence of alcohol; (3) that the arresting officer failed to warn defendant his license would be suspended if he submitted to a test and the test disclosed an alcohol concentration of .10 or more; (4) that the test to which defendant submitted failed to disclose an alcohol concentration of .10 or more; and (5) that the tests were not properly administered.

At the hearing on his petition, defendant testified that, on October 4, 1991, at approximately 11:30 p.m., he was pulling out of a McDonald’s restaurant, when three police cars began following him. Defendant made a right turn out of the parking lot onto South Street, using his turn signal. He then crossed over into the left-hand lane to turn left onto West Avenue, again using his turn signal. Noting that the police cars were still behind him and wanting to determine if they would continue to follow him, defendant made a left-hand turn onto Jefferson Drive, from the left-hand turn lane and using his left-hand turn signal. He was very close to the intersection before he got into the left-hand turn lane. Defendant explained that he knew he was not supposed to cross a yellow line and, because of the various arrows and the solid yellow lines, it was very confusing. He did signal the left-hand turn, and at all times he drove within his lane of traffic and within the speed limit.

On cross-examination, defendant denied causing a disturbance at the McDonald’s restaurant but conceded that his passenger might have “smarted off.” No one at the restaurant told him that he or she was going to call the police. He indicated on the diagram of the Jefferson intersection that he got into the left-hand turn lane after the arrow. He performed a field sobriety test and acknowledged telling the arresting officer that he could not do the test even when he was sober.

The trial court then granted the State’s motion for a directed finding on grounds one, three, four and five of the defendant’s petition.

James Drehoble, a police officer for the City of Freeport, testified that on the date in question he received a report of a possible “DUI” driver in a yellow Cadillac at the McDonald’s restaurant at South Avenue and West Avenue. After arriving at the McDonald’s restaurant, he observed the yellow Cadillac backing out of a parking place, and he began to follow it. The Cadillac pulled up to a stop sign and made a right-hand turn onto South Street and then got into the left-hand turn lane at West Avenue. It then made a left-hand turn onto West Avenue, cutting across the southbound lane of traffic. The Cadillac continued to Jefferson Drive, where it made a left-hand turn but not from the proper left-hand turn lane. Drehoble then stopped the vehicle for making two illegal left-hand turns and for failing to yield at the yield sign at Monroe Drive. He identified defendant as the driver of the Cadillac.

On cross-examination, Drehoble admitted that he did not issue a ticket to the defendant for the illegal left-hand turn at South Street onto West Avenue. According to Drehoble, only two police vehicles followed the defendant’s vehicle. He did not recall what happened to the third police vehicle which had been at the McDonald’s restaurant. According to Drehoble, defendant incorrectly made his left-hand turn from the left northbound lane, but he conceded that defendant could have crossed over the yellow line just short of the intersection of South Street and Jefferson Drive.

The trial court found that there were grounds for stopping the vehicle based upon the citizen’s complaint of an intoxicated driver. The trial court also found that Officer Drehoble had a right to stop defendant’s vehicle based on one of the left-hand turns defendant made. However, on the issue of whether the officer had reasonable grounds to believe that defendant was under the influence of alcohol, the trial court observed that the only evidence it had on that issue was that the officer’s report noted that he had smelled alcohol on defendant’s breath and that defendant had failed an unspecified field sobriety test. The trial court found the evidence insufficient and granted the petition to rescind the summary suspension. Following the trial court’s denial of its motion for reconsideration, the State brought this appeal.

In ruling on the State’s motion for a directed finding in a summary suspension hearing, a two-stage analysis is applied: first, the trial court must determine if the defendant has made out a prima facie case, that is, presented at least some evidence on every element necessary to the cause of action; and, second, if the trial court determines that the defendant has made out a prima facie case, then the trial court must weigh that evidence. (People v. Hawkins (1991), 221 Ill. App. 3d 460, 464.) This weighing process may result in the negation of some of the evidence necessary to defendant’s prima facie case, in which event the court should grant the State’s motion and enter judgment in its favor. (Hawkins, 221 Ill. App. 3d at 464.) In considering whether the testimony presented by the defendant/motorist constitutes a prima facie case, the burden of proof will shift to the State only if the trial court finds such testimony credible. 221 Ill. App. 3d at 464.

The State contends that, since there are no substantial factual disputes or any questions of credibility, the issue before this court is a legal one which we may consider de novo. People v. Abney (1980), 81 Ill. 2d 159 (where neither the facts nor the witnesses’ credibility is questioned, the question of whether exigent circumstances exist is a legal one subject to consideration by the court de novo).

We disagree. In this case, the defendant presented extensive testimony as to his driving which, if believed by the trial court, would be some evidence that the arresting officer did not have reasonable grounds to believe that the defendant was driving under the influence of alcohol. Defendant detailed his driving maneuvers from the time he left the McDonald’s restaurant until he was stopped by Officer Drehoble. Defendant denied making an illegal left-hand turn from South Street onto West Avenue, although he admitted being confused by the arrows as he turned left from West Avenue onto Jefferson Drive. He further testified that he observed the speed limit and used his turn signal when appropriate.

It is true that when arguing that the arresting officer did not have reasonable grounds for believing he was under the influence of alcohol a defendant must present some evidence to negate the allegation that he exhibited symptoms of alcohol use. (People v. Knoblett (1989), 179 Ill. App. 3d 1015, 1016.) However, in Knoblett, the sole evidence presented by the defendant was that he was stopped for failure to dim his headlights and that he showed the officer that the headlights were on low beam. In affirming the defendant’s failure to establish a prima facie case, the reviewing court determined from the above testimony that defendant had presented no evidence on the issue of alcohol, not even denying that he was under the influence of alcohol. 179 Ill. App. 3d at 1017.

We do not believe that it was necessary for the defendant in this case to testify that he was not under the influence of alcohol while operating a motor vehicle in order to establish a prima facie case as long as there was evidence which, if believed by the trial court, could establish that fact. When the trial court’s findings are based on the credibility of the witnesses, we may not substitute our judgment for that of the trial court. People v. Graney (1992), 234 Ill. App. 3d 497, 504.

The State also contends that the trial court improperly shifted the burden of proof to it by requiring the State to prove whether the defendant was under the influence of alcohol. Once the trial court determines that the defendant has established a prima facie case, the burden shifts to the State to come forward with evidence that the officer had reasonable grounds to believe that defendant was driving under the influence of alcohol. See People v. Graney, 234 Ill. App. 3d at 505 (where defendant established a prima facie case that the results from the breathalyzer test were inaccurate, the burden shifted to the State to come forward with evidence of the reliability of the test).

We have previously determined that defendant, by virtue of the detailed testimony as to his driving, presented some evidence that the officer did not have reasonable grounds to believe that the defendant was driving under the influence. Nothing in the record suggests that the trial court disbelieved the defendant’s testimony. The report of the arresting officer mentions a smell of alcohol and the defendant’s failure to complete a performance test. In weighing the evidence, the trial court apparently concluded that neither the report nor the officer’s testimony negated the defendant’s prima facie case. The trial court must find that the defendant has satisfied his burden of proof by a preponderance of the evidence; however, whether the defendant has met his burden of proof is a question of fact for the trial judge, and this determination will not be overturned on review unless it is against the manifest weight of the evidence, that is, unless an opposite conclusion is clearly evident from the record. Hawkins, 221 Ill. App. 3d at 463.

We conclude, therefore, that defendant did present a prima facie case that the officer did not have reasonable grounds to believe that he was driving under the influence and that the trial court properly shifted that burden to the State to prove otherwise. The trial court’s finding on this issue is supported by the record. Since the opposite conclusion is not clearly evident from the record, the decision of the trial court to rescind defendant’s summary suspension is not against the manifest weight of the evidence.

The judgment of the trial court is affirmed.

Affirmed.

GEIGER, J., concurs.

JUSTICE DOYLE,

dissenting:

I respectfully dissent.

As the majority decision correctly recognizes, the only issue before us is whether defendant presented a prima facie case that the arresting officer did not have reasonable grounds to believe that he was driving under the influence of alcohol. The trial court found that there was probable cause for stopping defendant’s vehicle, and that finding is not challenged here.

The majority takes the position that defendant’s testimony that he drove correctly for a distance of several blocks in itself constitutes a prima facie showing that the officer had no reasonable basis for believing him to be under the influence, even though defendant did not deny that he was under the influence or present any other evidence on the subject. I disagree.

Prima facie evidence is that evidence sufficient to establish a fact and which will remain sufficient if unrebutted. (People v. Sanders (1987), 155 Ill. App. 3d 759, 764.) Erratic driving may be some evidence of driving under the influence but would not, in itself, constitute prima facie proof of that offense. Conversely, driving without error for several blocks may be, as the majority comments, “some evidence” of sobriety, but it does not, in my view, rise to the level of a prima facie showing sufficient to shift the burden of proof to the State. See People v. Knoblett, 179 Ill. App. 3d 1015.