author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. YOLANDA MASSE, Defendant-Appellant.
    Second District
    No. 2—90—0842
    Opinion filed November 25, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, and Barbara R. Van Tine, of Mason City, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Patrick J. O’Shea, of Law Offices of Patrick J. O’Shea, of Lombard (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Yolanda Masse, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2(a)) and was sentenced to eight years’ imprisonment. She argues that the trial court erred by refusing her tendered jury instruction, based on United States v. Telfaire (D.C. Cir. 1972), 469 F.2d 552, that identification testimony is an expression of belief or impression of the witness. She also argues that she was not proved guilty beyond a reasonable doubt because of weaknesses in the identification of the perpetrator of the crime.

At the trial, Dena Moore testified that she was on duty at a Clark gasoline station at 11:30 a.m. on June 15, 1989. A van drove to the door, and a woman exited the van and entered the station. Moore made an in-court identification of defendant as that woman. Moore had been talking on the telephone for about 15 minutes to a friend when the woman entered the station. The woman asked to use the rest room, but this request was not unusual. Moore told her to go outside and around the building. The woman disappeared from Moore’s view for a few seconds, stood outside for about two minutes glancing at Moore, and then walked back to the van. She talked to the driver, who then stepped down and followed her into the station.

The man told Moore to hang up the phone and to give him the money from the register. He pulled a gun from his jacket and pointed it at her. She opened the register and handed him the bills. The man motioned for her to go into the back room. The woman followed Moore and told her to put her hands behind her back. The woman taped Moore’s wrists and closed the door. The man and woman remained in the station for half a minute and left. Moore could see them through half-inch slits in the door. She removed the tape and activated an alarm. The whole incident took about eight minutes. Moore testified that when the police arrived she was still scared, crying, shaking and even shouting obscenities. She testified that she initially described the assailant as a woman in her late twenties, 5 feet 4 inches tall, weighing 120 pounds, and with shoulder-length brown hair.

Later that day, Moore went to the police station and compiled a face of her assailant using an identikit. The kit is comprised of sets of five or six examples each of eyes, noses, facial contours and hair styles. Moore considered the eyes and hair important distinguishing features. Officer Lucchini of the Elmhurst police department helped her make the composite by asking her questions about the accuracy of each feature. After several corrections, she completed a composite she felt reflected the appearance of the assailant. The assailant had not worn eyeglasses. Lucchini testified that Moore estimated that the assailant was 35 years old and weighed 130 pounds.

On August 28, 1989, Officer Gary Fuller of the Elmhurst police department conducted a lineup identification. Moore went to the courthouse in Skokie, where she viewed six similar women through a window. Moore identified defendant as her assailant. The six women did not have the same hair style. One had short hair, and another had long, curly hair. Moore eliminated two of the women from consideration because they did not look alike.

Officer Dan Kaepplinger of the Hanover Park police department arrested defendant pursuant to a warrant on August 26, 1989. He had known her for over a year when she worked in a gas station and a convenience store in Hanover Park. He knew her on a first-name basis and saw her 75 to 100 times when he bought items. Each time, she wore eyeglasses.

Peter Epstein testified that he was an optometrist and examined defendant on March 10, 1988. Defendant was nearsighted to an acuity of 20/200 by squinting and 20/400 without squinting. This diagnosis meant that she could see an object 20 feet away as poorly as a person with standard vision would see it at 400 feet. Epstein prescribed her eyeglasses rather than contact lenses, but he did not know if she saw another optometrist. Vision of 20/400 is still sufficient to see a person at 20 feet, to see aisles in a store, or to see arms and hands a foot away.

Kim Hill testified that he lived with defendant for SVz years. He thought she appeared the same during trial as she had on June 15. She wore glasses, and he had never known her to wear contact lenses.

Prior to the closing arguments, the court conducted a conference on instructions. The court accepted People’s instruction No. 4, which was based on Illinois Pattern Jury Instructions, Criminal No. 1.02 (2d ed. 1981) (hereinafter IPI Criminal 2d). The court also accepted an instruction based on IPI Criminal 2d No. 2.03, regarding the burden of proof. Defense counsel tendered an instruction reading, “Identification testimony is an expression of belief or impression of the witness,” and cited Telfaire. The court denied the instruction. The instructions given by the court stated:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them.
In considering the testimony of any witness you may take into account his or her ability and opportunity to observe, his or her age, his or her memory, his or her manner while testifying, any interest, bias, or prejudice he or she may have, and the reasonableness of his or her testimony considered in the light of all the evidence in the case.”

During his argument, the prosecutor contended the identification evidence was strong. He stated that Moore had seen the perpetrator for eight minutes and at the close range of across the counter. The lighting was good, and Moore saw no obstructions for most of the time of the incident. The prosecutor argued that the identikit composite matched defendant’s face. The prosecutor also told the jury to use the lineup photograph. He argued Moore was honest because she admitted she could not select a photograph of the male perpetrator.

The defense counsel argued that Moore made mistakes in her testimony as follows. On the stand and in view of defendant, Moore stated the perpetrator was only 25, but at the time of the incident she told Officer Lucchini the perpetrator was in her thirties. She testified the gunman held the gun with his right hand, but she told Officer Kopczynski he used his left hand. The facts showed Moore was extremely upset and frightened. Counsel argued that the time involved was not eight minutes but short intervals of a few seconds span and that they totaled less than eight minutes. Counsel argued Moore did not pay attention to the perpetrator at first because she was doing nothing unusual and Moore was too involved in a 15-min-ute telephone conversation with a good friend. During the actual robbery, Moore would have looked at the gun and the money rather than the female perpetrator. Later, the female perpetrator taped Moore’s hands from the back. Counsel argued that Moore would be too excited to remember the details. Counsel argued that the length of hair of the identikit composite was too short when compared to defendant’s lineup photograph hair even allowing for growth. Counsel also repeated that Moore thought the perpetrator’s eyes were a striking feature, but counsel argued that the eyes of the composite were different from those of defendant.

Defense counsel also argued that the lineup identification was weak because it was conducted 11 weeks after the incident. Counsel argued that the sample of women was insufficient because none appeared similar to defendant. The most similar woman in the photograph had long, straight hair and was bigger, but Moore eliminated consideration of her because of the hair; Moore chose the woman with the wavy hair. Counsel argued that the process of elimination resulted in Moore choosing the only remaining person rather than in producing a direct identification. Counsel argued that the long trip to Skokie increased Moore’s resolve to select somebody. Defense counsel called upon the jury to examine the lineup photograph carefully to see that none of the woman were similar other than in race. Counsel also made other arguments, including ones regarding the absence of eyeglasses.

Following the arguments, the court read the instructions, including the ones listed previously. The jury found defendant guilty, and she appeals.

On appeal, defendant argues that the trial court should have instructed the jury that identification testimony is an expression of belief or impression of the witness. She also argues that the identification was not proved beyond a reasonable doubt. In Telfaire, the United States Court of Appeals suggested the use of several instructions to prevent the danger of mistaken identification as a threat to justice. (Telfaire, 469 F.2d at 555.) Several of the suggested instructions are similar to IPI Criminal 2d No. 1.02 by calling attention to the opportunity of the witness to observe and the factors affecting the observation. (469 F.2d at 558.) Telfaire also included the disputed language regarding belief or impression. Similarly, the Illinois Supreme Court has determined that an identification can be sufficient when it is based on a total impression of the suspect rather than on a list of the distinguishing features of the face. People v. Slim, (1989), 127 Ill. 2d 302, 309.

However, the appellate court of this State has repeatedly-ruled that the refusal to give the Telfaire instruction was proper when the jury received IPI Criminal 2d Nos. 1.02 and 2.03. (See People v. Benson (1979), 71 Ill. App. 3d 591, 594 (and cases cited therein).) No special instruction on identification is required, because IPI Criminal 2d No. 1.02 is sufficiently detailed to instruct the jury. (People v. Fox (1971), 48 Ill. 2d 239, 249.) Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)) requires that IPI Criminal Instructions be used when applicable. (See People v. Ramey (1992), 151 Ill. 2d 498, 535.) In addition, the Committee Note to IPI Criminal 2d No. 3.15 recommends that no special instruction be given on the subject of the circumstances of identification because the subject is adequately covered by IPI Criminal 2d No. 1.02. The note also provides that the circumstances of an identification are a proper subject of a closing argument.

People’s instruction No. 4 in the cause before the court contains all the factors affecting credibility listed in IPI Criminal 2d No. 1.02. One of the factors, the opportunity to observe, is the same as a factor a court will use in assessing identification testimony. These factors include:

“(1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation.” (People v. Slim (1989), 127 Ill. 2d 302, 307-08.)

Trial courts may allow expanded versions of IPI Criminal 2d No. 1.02 to include the factors listed in Slim. IPI Criminal 2d No. 1.02, Committee Note (Supp. 1989); see, e.g., People v. Bias (1985), 131 Ill. App. 3d 98, 103.

While People’s instruction No. 4 did not include the specific Slim factors as did the instruction in Bias, defense counsel stressed the concerns addressed in the Bias instruction in her closing argument, as recommended by the committee note to IPI Criminal 2d No. 3.15. (See also Benson, 71 Ill. App. 3d at 595 (in closing, defense counsel repeatedly emphasized the alleged misidentification).) She argued that the lineup identification was poor because of the 11-week interval after the incident and because of other defects. She argued that the witness did not pay attention to the perpetrator and that she changed her description of the suspect. Thus, we believe that the jury was sufficiently apprised of the circumstances regarding identification.

Defendant also contends that the identification was not proved beyond a reasonable doubt. She repeats many of the same arguments made to the jury regarding the alleged defects in Moore’s identifications.

When the identification of the defendant forms the central question in a criminal prosecution, the testimony of even one witness is sufficient to convict where the witness is credible and had viewed the accused under conditions permitting a positive identification. (People v. Richardson (1988), 123 Ill. 2d 322, 353.) The jury has the duty of assessing the credibility of the witnesses, and a court of review will not set aside a jury’s verdict unless the evidence presented at trial is so improbable as to raise a reasonable doubt of guilt. Minor discrepancies in testimony do not, by themselves, create a reasonable doubt. 123 Ill. 2d at 353.

The testimony regarding the in-court and pretrial identifications is not so improbable as to raise a reasonable doubt that Moore misidentified defendant. (See Richardson, 123 Ill. 2d at 348-52.) Moore saw the perpetrators in a well-lit and small area of the gas station with no obstruction until she was put behind the slotted door. She had ample time to observe defendant inside and outside the building. Moreover, the jury had the benefit of comparing Moore’s identikit composite with defendant’s presence in court. The jury was in a superior position to assess the identification testimony, and we will not second-guess its finding.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH M. BRETON, Defendant-Appellant.
    Second District
    No. 2—91—0087
    Opinion filed November 20, 1992.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Keith Breton, was convicted of solicitation of murder for hire (Ill. Rev. Stat. 1989, ch. 38, par. 8—1.2) and sentenced to a term of 30 years’ imprisonment following a jury trial in the circuit court of Du Page County.

On appeal, defendant raises the following issues: (1) whether the State failed to prove the “agreement” element of its charge of solicitation of murder for hire; (2) whether the trial court erred in admitting prejudicial evidence of other crimes; (3) whether the trial court erred by allowing the State to impeach a witness on a collateral issue; (4) whether prosecutorial misconduct denied the defendant a fair trial; and (5) ineffective assistance of counsel.

The following facts are relevant to our disposition of the issues raised on appeal. The defendant sold cocaine to Gary Wehrmeister at least 20 times between 1980 and 1989. On March 2, 1989, Wehrmeister purchased cocaine from the defendant to resell to a customer, Hogan, who was cooperating with law enforcement authorities. At that time, Wehrmeister was unaware that Hogan was cooperating with law enforcement authorities.

After Wehrmeister delivered the drugs purchased from the defendant to Hogan, authorities, who had been monitoring the transactions, arrested both Wehrmeister and the defendant. The defendant was charged with drug and weapons offenses and incarcerated in the Du Page County jail, where he remained pending trial.

Wehrmeister initially refused to cooperate with authorities in their case against the defendant. However, after learning that the defendant told authorities Wehrmeister was the supplier of the drugs sold to Hogan, Wehrmeister agreed on June 5, 1989, to cooperate with authorities against the defendant and testify against him at his trial scheduled for June 22, 1989. Defendant first became aware of this on June 5,1989.

On June 12, 1989, John Bivins, a fellow inmate of defendant, advised the State’s Attorney’s office through his attorney that the defendant was looking for a hit man to kill Wehrmeister. Bivins later met with authorities and gave them two maps and two notes written by the defendant. Bivins told the authorities the maps and notes were to be used by the hit man. The maps showed the location of Wehrmeister’s home. The notes threatened both Wehrmeister and Hogan.

The Du Page County State’s Attorney’s office implemented a plan to allow defendant to contact an undercover investigator posing as a hit man. State’s Attorney investigators gave Bivins an untraceable undercover phone number which Bivins gave to defendant. With State’s Attorney approval, Bivins also gave defendant the names “Dan” and “Bob” as persons defendant could call at the undercover number to arrange a hit. State’s Attorney investigators Dan Callahan and Bob Holguin would answer the phone and pose as hit men. Bivins did not testify at the trial after it was determined that he would assert his fifth amendment privilege if called to testify.

Between June 15, 1989, and June 22, 1989, defendant made five phone calls to the undercover phone number. Law enforcement authorities tape-recorded the first four of these phone calls with judicial approval. During the four tape-recorded calls, defendant spoke with undercover State’s Attorney investigator Dan Callahan, who posed as a hit man.

Defendant first called Callahan at the undercover phone number on June 15, 1989. During the conversation Callahan asked defendant what he wanted. Defendant responded “I gotta have a job done.” Defendant stated the job involved “a guy” whom he identified as Gary Wehrmeister. When Callahan asked defendant what he wanted done to Wehrmeister defendant replied “I want him out. I only got about five days. He goes to trial. *** He’s gotta go.” Defendant indicated that Wehrmeister had set him up for a drug charge, that he was not guilty, but that he did not want to take a chance of Wehrmeister testifying against him.

Also during the first call, defendant agreed to pay Callahan $5,000 for Wehrmeister’s murder with $2,500 up front. Defendant stated he would need a day to make arrangements for the delivery of the up-front money. Defendant told Callahan he would call him the next day to further discuss the delivery of the up-front money.

Defendant called Callahan at the undercover phone number for the second time on June 16, 1989. Defendant told Callahan the upfront money was coming from out of town and Callahan could pick it up from Ken Drost, an attorney, at his downtown Chicago office. Defendant instructed Callahan to tell Drost he was an investigator there to pick up an envelope. Defendant also supplied Callahan with information to facilitate the murder of Wehrmeister. This occurred after Callahan told defendant “when your [sic] payin’ me to kill somebody I need to know everything I can.” In response, defendant told Callahan where Wehrmeister lived, discussed Wehrmeister’s habits, and described Wehrmeister’s living arrangements.

Defendant made his third call to Callahan at the undercover number on June 19, 1989. Defendant told Callahan the up-front money was available and gave Callahan Drost’s phone number. Defendant stated Drost would have the money in an envelope. Defendant also instructed Callahan he should tell Drost he was an investigator working on something for Keith (the defendant) if Drost asked what the money was for.

At defendant’s request, defendant’s wife had sent $2,500 in the form of a money order to Drost. On June 20, 1989, Callahan went to Drost’s office and met Drost. At that time Drost endorsed the money order and delivered it to Callahan for the defendant.

Defendant made his fourth call to Callahan on June 21, 1989. Callahan told defendant he received the money order from Drost and expressed concern that a paper trail had been established. Defendant replied that he had told Drost to cash the money order and give Callahan cash. Callahan told defendant Wehrmeister’s murder was “set for tonight.” Defendant told Callahan he could pick up the rest of the money from Drost the next day.

On June 22, 1989, State’s Attorney investigator Bob Holguin talked to the defendant by phone when the defendant called the undercover phone number and asked for “Dan.” Holguin told the defendant he was “Bob.” The defendant asked if Holguin knew whether Wehrmeister had gone to court and Holguin replied that he had not. The defendant said “Good” and asked whether Wehrmeister was taken care of. Holguin answered yes and said that Wehrmeister would never go to court. The defendant said the rest of the money would be available on Friday.

At his trial, defendant contended he did not really intend to have Wehrmeister murdered. He testified he wrote the maps and threatening notes to get Wehrmeister to submit an affidavit in May 1989 before he even knew Wehrmeister was going to testify against him. Defendant testified that he subsequently destroyed the original maps and notes. Bivins had given the authorities copies which defendant did not know Bivins had. Defendant also testified that after he discovered the hit man was a phony he went along with the scheme knowing no one would really be hurt. Defendant conceded that going along with the scheme was irrational and self-destructive. He said he felt angry, betrayed and frustrated and was overcome by an uncontrollable desire to pose as a bad person to “expose” the State’s Attorney.

Defendant first contends that his conviction must be reversed because the State failed to prove the “agreement” element of its solicitation of murder for hire charge. This is an issue of first impression. We have found no previous case construing the term “agreement” in the solicitation of murder for hire statute.

Solicitation of murder for hire is an offense created by statute in 1988. Section 8—1.2(a) of the statute provides:

“A person commits solicitation of murder for hire when, with the intent that the offense of first degree murder be committed, he procures another to commit that offense pursuant to any contract, agreement, understanding, command or request for money or anything of value.” Ill. Rev. Stat. 1989, ch. 38, par. 8—1.2(a).

The State charged defendant with solicitation of murder for hire pursuant to an agreement. The agreement in question was between defendant and Callahan. The State did not charge defendant with solicitation of murder for hire pursuant to any of the other elements of the statute. The State argues that the term “any” in the statute means a defendant may be found guilty of solicitation of murder for hire if the solicitation is pursuant to any of the elements in the statute. We do not address that question here.

The issue in this case involves the “agreement” between defendant and Callahan, an undercover government agent who only feigned agreement with the defendant (Callahan of course did not really intend to murder Wehrmeister). The jury found defendant guilty of solicitation of murder for hire pursuant to an agreement between defendant and Callahan. Defendant contends his conviction cannot stand because Callahan’s feigned agreement does not satisfy the “agreement” element of the solicitation of murder for hire charge.

Defendant argues that the issue is analogous to a similar issue in conspiracy law in Illinois. He contends that, like the conspiracy statute, at least two parties must reach an actual agreement (both parties must really intend to do what they agree to do) to satisfy the agreement element of the solicitation of murder for hire statute. Defendant argues that since Callahan only feigned agreement, there was no solicitation of murder for hire pursuant to an agreement as charged here.

Defendant correctly argues that a conspiracy conviction requires the actual agreement of at least two parties to the conspiracy. A conspiracy conviction in Illinois requires an agreement based on the bilateral theory of conspiracy rather than the unilateral theory of conspiracy. (People v. Foster (1983), 99 Ill. 2d 48.) An agreement based on the bilateral theory is one between a defendant and at least one other person where both parties actually intend to agree (a bilateral agreement). (Foster, 99 Ill. 2d at 55.) Under the bilateral theory of conspiracy, a purported agreement between a defendant and a government agent only feigning agreement will not support a conspiracy conviction because there is no actual agreement and actual agreement is a necessary element of conspiracy. Foster, 99 Ill. 2d at 50.

An agreement between a defendant and a governmental agent only feigning agreement is an agreement based on the unilateral theory. (See Burgman, Unilateral Conspiracy: Three Critical Perspect ives, 29 De Paul L. Rev. 75 (1979).) In such a unilateral agreement only one person actually intends to agree.

If conspiracy law requiring a bilateral agreement applies to solicitation of murder for hire pursuant to an agreement as defendant contends, then defendant is correct that the facts of this case could not support a conviction because in this case there was only a unilateral agreement. The question is whether conspiracy law and the bilateral theory of conspiracy should apply to the solicitation of murder for hire statute to require a bilateral agreement when the solicitation is pursuant to an agreement.

Defendant reasons that the bilateral theory applies to both conspiracy and solicitation of murder for hire when pursuant to an agreement because they are similar inchoate crimes. Defendant also maintains that they are the only inchoate crimes with an agreement element and therefore the agreement element must be construed the same in both statutes.

The State counters that defendant’s analogy of the solicitation of murder for hire statute to conspiracy is flawed. The State argues that the analogy ignores fundamental differences between solicitation and conspiracy.

There are fundamental differences between solicitation and conspiracy. Solicitation can be thought of as an attempted conspiracy. (Model Penal Code §5.02, Comment, at 365 (Official Draft & Revised Comments 1985).) Solicitation generally requires a command, encouragement, or request of another to commit a crime (in solicitation of murder for hire it is the procurement of another). Conspiracy requires an agreement to commit a crime and an overt act in furtherance of the agreement. (People v. Moorehead (1984), 128 Ill. App. 3d 137, 141.) Neither solicitation nor conspiracy is a lesser included offense of the other. (128 Ill. App. 3d at 141.) Solicitation and conspiracy each have a different actus retís. (2 W. LaFave & A. Scott, Substantive Criminal Law §§6.1, 6.4 (1986).) The actus reus of conspiracy is an agreement to commit a crime while the actus reus of solicitation involves an attempt to persuade another to commit a crime. See Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 29-30 (1989).

In its decision holding that the bilateral theory applies to conspiracy, the Illinois Supreme Court recognized that solicitation and conspiracy are different. In addressing the issue of whether the bilateral theory should apply to the conspiracy statute, the court noted the different natures of solicitation and conspiracy when it said “Illinois does have a solicitation statute which embraces virtually every situation in which one could be convicted of conspiracy under the unilateral theory.” (Foster, 99 Ill. 2d at 53.) The court also commented that there was little need to adopt a unilateral theory of conspiracy because of the solicitation statute. Foster, 99 Ill. 2d at 53.

Because solicitation statutes embrace situations in which one could be convicted of conspiracy under the unilateral theory, solicitation statutes do not require bilateral agreements. Although the charge of solicitation of murder for hire pursuant to an agreement uses the same term, “agreement,” as the conspiracy statute, there is no reason to construe the terms the same in both statutes. Because of the nature of solicitation, the solicitation statute is based on the unilateral theory, which only requires actual agreement by one of the parties.

If actual agreement by both parties was required and the procurement element was satisfied the elements of a conspiracy would be satisfied (a bilateral agreement plus an overt act in furtherance of the agreement). Requiring a bilateral agreement in the solicitation of murder for hire statute when the solicitation was pursuant to an agreement would effectively require a conspiracy. We do not believe the legislature intended to require proof of the elements of a conspiracy in order to prove a solicitation of murder for hire charge. This view is borne out by our supreme court’s comments with respect to solicitation in Foster.

We conclude that the solicitation of murder for hire statute does not require actual agreement between a defendant and another when the solicitation is pursuant to an agreement. Procurement of another to commit murder pursuant to an agreement where a defendant agrees with a government agent feigning agreement is sufficient to support a conviction of solicitation of murder for hire.

In his second contention on appeal, defendant argues he was unduly prejudiced by the admission at trial of excessive detail concerning his underlying drug and weapons cases. Despite the general rule against admission of prior crimes evidence, defendant concedes that some evidence of defendant’s prior crimes was relevant to demonstrate defendant’s alleged motive for the solicitation of murder for hire. However, defendant argues that unnecessary detail allowed the State to portray the defendant as a drug dealer which improperly influenced the jury’s verdict.

Defendant maintains the improper excessive detail concerned his drug deal with Wehrmeister, which occurred on March 2, 1989, and was the basis of defendant’s arrest and conviction on drug and weapons charges. Defendant specifically objects to the admission of items of physical evidence from the drug case, such as packages of cocaine and a gun received by the defendant as partial payment for the cocaine. Defendant also objects to the admission of tape-recorded conversations and a tape-recorded drug transaction between Wehrmeister, the alleged victim of the solicitation of murder for hire, and Hogan, the customer who cooperated with authorities which resulted in defendant’s arrest for the drug charge.

Defendant also maintains that admission of evidence concerning Wehrmeister’s prior relationship with defendant was prejudicial error. Wehrmeister was allowed to testify that he had known the defendant since 1980 and had purchased cocaine from the defendant at least 20 times between 1980 and 1989. Defendant argues that the admission of this evidence was improper because it allowed the State to portray the defendant as a drug dealer.

Evidence of other crimes is admissible if submitted to show any relevant purpose other than propensity. (People v. Hayes (1990), 139 Ill. 2d 89, 145.) Proof of the presence of a motive which would lead the defendant to commit the offense charged is always relevant and may be admitted. (People v. Whitlock (1988), 174 Ill. App. 3d 749, 772.) Relevant evidence is admissible that even to a slight degree establishes the existence of a motive. (People v. Stewart (1984), 105 Ill. 2d 22, 56.) It is within the discretion of the trial court to decide whether prior crimes evidence is relevant and admissible, and the trial court’s decision will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to the defendant. Hayes, 139 Ill. 2d at 130.

We find that the trial court did not abuse its discretion in admitting the evidence in question. Defendant admits the general relevance of the evidence to show a motive for the solicitation of murder for hire and only disputes the admission of excessive detail or excessive numbers of prior crimes admitted.

Here, each contested item of evidence could be said to advance the State’s motive theory. Evidence of the March 2, 1989, drug deal not only established the factual scenario that gave rise to the solicitation but also provided the jury with the defendant’s motive for the solicitation. The detail of the evidence allowed was relevant to establish the actual relationships among the parties and to refute defendant’s denial of the drug charge which is directly related to his alleged motive for solicitation. The evidence showed how the defendant came to feel he was “set up,” ultimately motivating him to solicit the murder of his codefendant.

The number of prior dealings with Wehrmeister is relevant to the defendant’s motive because it shows the defendant stood to lose an ongoing drug trade if he was convicted. A supplier of drugs in a series of transactions may have a stronger motive to solicit the murder of someone who sets him up than a supplier of drugs in a single transaction. A drug dealer may feel the need to send a message to other customers not to cooperate with law enforcement authorities.

The record shows that the trial court carefully considered the probative and prejudicial weight of the evidence and to some extent limited the evidence admitted. We conclude the defendant was not denied his right to a fair trial by the admission of excessive detail or number of prior crimes evidence.

Defendant next alleges the trial court erred by allowing the State to impeach its own witness, Kenneth Drost, on a collateral matter. Drost was defendant’s former attorney who delivered the down payment for the hit to Callahan, an undercover investigator posing as a hit man.

On direct examination, Drost testified that defendant had previously tried to borrow money from him while defendant was incarcerated in order to bail out another inmate, McVickers. Drost was unable to recall the reason defendant had given him for wanting to bail Mc-Vickers out. The State followed Drost’s testimony with that of Callahan. Callahan testified that Drost told him during a prior interview that defendant had told Drost he wanted to bail McVickers out because McVickers had been talking to the State’s Attorney about defendant’s drug case and defendant wanted McVickers out of the picture.

Defendant argues that his reason for wanting McVickers out of jail is a collateral matter which should not have been impeached. Defendant contends that the State only impeached Drost to impugn the defendant by suggesting to the jury that he intended to commit another crime such as obstruction of justice.

The State counters that the matter was not collateral. It contends that the matter had probative value with respect to the solicitation of murder for hire charge.

A witness may not be impeached on a collateral matter. (People v. Collins (1985), 106 Ill. 2d 237, 269.) The test to determine if a matter is collateral is whether the matter could be introduced for a purpose other than contradiction. (People v. Byer (1979), 75 Ill. App. 3d 658, 669.) The application of the “collateralness” test is a matter within the reasonable discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. Collins, 106 Ill. 2d at 269.

Here, the trial court, after side-bar arguments, made a specific ruling that the matter was not collateral. The facts show that during the defendant’s calls to Callahan, an undercover investigator posing as a hit man, the defendant asked Callahan whether he had been contacted by McVickers. Thus, defendant raised the issue of the role of McVickers in the solicitation scheme. The trial court could reasonably conclude that the State’s effort to show why the defendant wanted to bail McVickers out was directly related to the charge before the court. Accordingly, we find the trial court’s ruling was not an abuse of discretion.

Defendant next argues that he was denied a fair trial because of several instances of prosecutorial misconduct. Defendant also asserts that the plain error rule should apply if the prosecutorial misconduct issue is deemed waived.

We find that defendant did not object to all of the alleged instances of prosecutorial misconduct at trial and did not preserve any of the alleged instances in a post-trial motion and thus the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 190.) We also find that the plain error exception to the waiver rule does not apply in this case because our review of the record satisfies us that any error in the form of prosecutorial misconduct as alleged by the defendant did not rise individually or cumulatively to the level of substantial prejudice to the defendant. People v. Smith (1990), 141 Ill. 2d 40, 60.

Defendant’s final contention on appeal is ineffective assistance of counsel. Specifically, defendant argues that his counsel: (1) failed to object and preserve for review the erroneous admission of other crimes evidence; (2) failed to object to improper comments by the prosecutor in closing arguments; and (3) presented a closing argument inconsistent with the defendant’s own testimony on the issue of intent.

Because we concluded earlier that there was no prejudicial error with respect to the admission of prior crimes, we will not discuss that issue further here. Neither will we elaborate on our conclusion that the alleged instances of prosecutorial misconduct did not amount to prejudicial error.

Defendant contends that his counsel’s closing argument, despite defendant’s repeated denials that he ever had the intent to kill by solicitation for murder, conceded that the defendant had the requisite intent. Defendant argues his counsel conceded defendant had the requisite intent in defendant’s early dealings with Bivins, the fellow inmate who subsequently cooperated with the State’s Attorney’s office. Counsel argued that the defendant only changed his mind after he realized he was being duped. Defendant maintains that his counsel’s error was tantamount to an admission of guilt. Defendant argues this error was aggravated when the prosecution pointed out the inconsistency during its rebuttal argument.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) A reviewing court’s scrutiny of trial counsel’s performance must be highly deferential with a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (People v. Johnson (1989), 128 Ill. 2d 253, 266.) Ineffective assistance of counsel claims may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors without deciding the first part of the Strickland standard (whether the errors were serious enough to constitute less than reasonably effective assistance). Johnson, 128 Ill. 2d at 271.

Here, based on the evidence presented by the State, a jury could have found beyond a reasonable doubt that the defendant was guilty of solicitation of murder for hire. The State’s evidence consisted of the following: establishment of a motive for the crime (shortly before defendant’s drug trial his codefendant, Wehrmeister, decided to testify against him); a fellow inmate of the defendant advised the State’s Attorney that defendant was looking for a hit man to kill Wehrmeister; the defendant wrote maps which could lead a hit man to Wehrmeister; undercover State’s Attorney investigators Callahan and Holguin posed as hit men; defendant called Callahan four times and these calls were taped; during the four calls to Callahan, defendant clearly requested Callahan to murder Wehrmeister and agreed to a price of $5,000 for the murder with a down payment of $2,500; the defendant arranged for and made delivery of the down payment to Callahan; and in a final conversation between the defendant and Holguin after the date of the intended murder, defendant expressed satisfaction that the murder had apparently occurred and told Holguin the balance of the money for the murder was available.

Defendant’s testimony concerning this apparent solicitation of murder for hire is simply not credible. Defendant testified that he never intended to solicit for the murder of Wehrmeister. He maintained that he discovered that the hit man phone number was really a State’s Attorney phone number and concluded the scheme was a ruse but went along with the scheme to “expose” the State’s Attorney’s office. Defendant testified he had an uncontrollable desire to expose the State’s Attorney by acting like a bad person. However, defendant’s contentions are belied by evidence that the phone number was not traceable. In addition, defendant offered no credible evidence to establish a basis for wanting to expose the State’s Attorney nor any evidence of a direct attempt to do so. Finally, defendant’s own actions, his payment of a substantial sum to Callahan, a purported hit man, and his expression of satisfaction and instructions for the hit man to get the balance of the money upon being informed that the murder had occurred, belie his whole exposure theory.

Based on this overwhelming evidence of defendant’s guilt, we conclude that even if defense counsel’s conduct amounted to less than reasonably effective assistance, defendant was not prejudiced because the outcome of the trial would not have been different if counsel’s conduct was different. Thus defendant has not satisfied the second prong of the Strickland test. Accordingly, defendant’s allegation of ineffective assistance of counsel fails.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE GEIGER JUSTICE DUNN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ANDERSEN et al., Defendants-Appellants.
    Second District
    No. 2—89—1100
    Opinion filed November 24, 1992.

      DUNN, J., dissenting.
    G. Joseph Weller and Marlene Kamish, both of State Appellate Defender’s Office, of Elgin, for appellants.
    Charles R. Hartman, State’s Attorney, of Freeport, and Deanne M. Tomse, of Chapman & Cutler, of Chicago (William L. Browers, John X. Breslin, and Norbert J. Goetten, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

After a jury trial, defendants, Robert and Stacie Andersen, were each convicted of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12—13(a)) and aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12—16). On appeal, the defendants raise five issues. They argue: (1) that the evidence was insufficient to prove them guilty beyond a reasonable doubt; (2) that the convictions of criminal sexual assault are void because the section under which they were charged was not enacted into law; (3) that the State failed to prove the elements of criminal sexual assault; (4) that Stacie’s conviction of aggravated criminal sexual abuse must be reversed because she is not five years older than the complainant; and (5) that they were denied the effective assistance of counsel. We affirm in part and reverse in part.

At trial, the complainant, C.G., testified that she and her adoptive mother went to Freeport, Illinois, to visit her aunt. Her mother left her at the defendants’ home at approximately 11 a.m. on Saturday, February 25, 1989. The defendant Stacie Andersen is C.G.’s sister, and the defendant Robert Andersen is Stacie’s husband. C.G. was 15 years old at the time of the incident.

According to C.G.’s testimony, at about 7 p.m., Robert, Stacie and C.G. watched a movie on television in the living room. When the movie was over, Stacie and Robert went into the kitchen to talk. Stacie came back into the living room and told C.G. that it was Robert’s fantasy to have two women in bed and that Robert wanted C.G. to be a part of that fantasy. C.G. testified that she agreed even though she did not want to do it.

C.G. further testified that she, Stacie and Robert got undressed in the kitchen. Robert took two pictures of Stacie and C.G. standing naked in the kitchen. Then Robert wanted Stacie and C.G. to take a shower together. Stacie and C.G. got into the shower and began washing each other. Robert continued taking pictures with a Polaroid camera. Five to ten minutes later Robert got into the shower with C.G., and Stacie began taking pictures of Robert and C.G. in the shower. Robert got an erection and instructed C.G. to wash his penis. When C.G. got out of the shower, Stacie got back in, and C.G. began taking pictures of Robert and Stacie together in the shower. After leaving the bathroom, they went into the bedroom.

Stacie had the camera in her hand and was standing at the end of the bed. Robert was lying naked on the waterbed. They asked C.G. if she was going to get into bed with Robert. C.G. replied, “I guess.” Stacie then instructed C.G. to hurry up, that she was not going to wait around, and that she just wanted “to get this done and over with.”

C.G. got into the bed with Robert. He pulled C.G. over to him and started fondling her breasts. Stacie was at the end of the bed taking pictures. Robert and C.G. started kissing, and Stacie went into the kitchen, crying. She returned shortly. Robert then put his finger in C.G.’s vagina. Then they switched positions so that C.G. was on her back. Robert put his penis into her vagina, pulled his penis out and put a condom on, then put his penis back inside C.G.’s vagina and ejaculated. Stacie continued to take pictures while C.G. and Robert had intercourse.

After the incident, they all washed, got dressed, and watched the Playboy channel. After a short while, Robert and Stacie decided to go to sleep. C.G. stayed up and watched television for a while. She eventually fell asleep on the couch.

C.G. testified that no one else was at Robert and Stacie’s home during the incident. She testified that Robert and Stacie were taking care of her while her mother was at her aunt’s house for the night. Also, C.G. identified a group of photographs as the photographs she had taken that night at Robert and Stacie’s house. C.G. stated that there were other pictures taken that night, but Stacie told C.G. over the phone shortly after the incident she had destroyed them.

C.G. also testified that sometime in August 1988 she had occasion to be at Robert and Stacie’s house. C.G., Robert, Stacie and Aaron Murphy, a friend of Robert and Stacie’s, played strip poker and then sat around naked and watched “pornos.” She also testified that she had taken pictures of Robert and Stacie on December 27, 1988.

On cross-examination, C.G. testified that on the night of February 25, she, Robert and Stacie looked at the pictures taken earlier that night. C.G. also admitted that she smoked marijuana that afternoon on the front porch of Robert and Stacie’s house, with her sister Lyn. C.G. admitted that on a number of occasions she had told Stacie that she disliked Robert. She further admitted that she wished Robert and Stacie had not married.

Officer Joseph LaBarge testified that he had been employed as a State police officer for 21 years. He was assigned to C.G.’s case. After obtaining a statement from C.G., Officer LaBarge obtained a warrant to search the Andersens’ home. Both Robert and Stacie were at home when the warrant was executed on April 12, 1989. At trial, Officer LaBarge identified photographs of Robert and Stacie involved in sexual intercourse and oral sex; he had recovered them from a tan check box in a closet in Robert and Stacie’s bedroom. He also identified a Polaroid One-step 600 camera and a box of condoms that he had recovered from the Andersen home. He testified that he did not find any photographs of C.G.

Officer LaBarge further testified that he spoke with Stacie at her home after Robert was taken to the Freeport police station. He testified that Stacie told him there had been more photographs, but that she had destroyed them.

The parties stipulated that Robert Andersen’s date of birth is June 14, 1962, Stacie Andersen’s date of birth is May 27, 1968, and the date of birth of C.G. is April 21, 1973.

Robert Andersen testified for the defense. He stated that C.G. had visited his wife and him four to six times before the December 27, 1988, visit. Not all of these visits extended overnight. Robert’s relationship with C.G. was “not that great.” When C.G. would come to the house, she and Robert would argue and then not speak to one another. C.G. often asked for alcohol, which Robert stated he refused to provide.

Robert testified that on December 27, 1988, C.G. arrived around 5:30 p.m. Robert, Stacie, C.G. and Aaron Murphy were present that evening. Robert and Aaron left the house to pick up a pizza. When they returned, the four of them ate the pizza in the living room. After dinner they played a card game called “skippo” on the living room floor. Robert stated no sexual activity occurred that night between Robert, Stacie and C.G.

Robert stated that the photos of him and his wife engaged in intercourse and oral sex were taken on September 12, 1988, by Aaron Murphy. Robert stated that those pictures were never shown to C.G. Robert identified a second group of photos as those taken by Aaron Murphy approximately six weeks later. Robert stated that he had never taken any photos of C.G. However, Robert stated that C.G. may have seen the photographs because on the morning of February 26 the box in which he kept the photos had been moved.

Robert stated that he recalled being in the shower with his wife Stacie on the night of February 25; she was ill. Robert testified that Stacie’s temperature was 103 degrees. She had slipped in the tub, so he decided to help her bathe. He stated that the door to the bathroom was locked, and C.G. was on the couch in the living room watching television.

Stacie Andersen also testified for the defense. She stated that the photographs of her and Robert in question were taken by Aaron Murphy, not C.G. She testified that she was not feeling well on February 25, and that she got progressively worse as the day went on. Stacie also denied that any photographs were taken on Decernber 27, 1988. She stated that she, Robert, C.G. and Aaron Murphy ate pizza and played “skippo” that evening.

Stacie stated that C.G. did not get along with Robert. C.G. would often bring up the fact that she did not like Robert. In March 1989, Stacie had a phone conversation with C.G. in which they argued about divorce. Stacie denied telling C.G. that she destroyed any photographs. She also denied telling Officer LaBarge that they had ever played strip poker and that they took off all their clothes while C.G. and Aaron Murphy were present. She denied telling Officer LaBarge that she, Robert and C.G. engaged in intercourse and oral sex on February 25, 1989.

Aaron Murphy testified that he was a good friend of Robert and Stacie. He testified that he had been at the Andersens on December 27, 1988. That was the first time he met C.G. He stated that they ate pizza and played “skippo.” There was no sexual activity nor were any photographs taken. Aaron also testified that he was the photographer for the photographs of the Andersens engaged in intercourse and oral sex.

On rebuttal, the State called C.G. to the stand. She again testified that there were pictures taken of her on December 27, 1988. She identified a picture, not previously introduced, that allegedly was taken in Robert and Stacie’s bedroom. In the photograph, C.G. is standing on the bed wearing only a pair of bikini panties. C.G. testified that she forgot about the photograph until the trial began. She said that the picture was taken at the Andersens’ house on December 27, 1988. Robert told C.G. to keep the photograph, but not to show anyone. She testified that after keeping the photo for approximately one week, she gave it to her boyfriend.

Officer LaBarge was also called to testify on rebuttal. He stated that Stacie told him that when C.G. was visiting their home in Freeport, there had been pictures taken of vaginal and oral intercourse, as well as pictures of C.G. He also testified that Stacie claimed to have destroyed the pictures of C.G. because she was embarrassed and did not want to get into trouble. Stacie informed Officer LaBarge that she, Robert and Aaron Murphy played strip poker with C.G., which resulted in everyone taking off all his clothing. Stacie stated that she did not want to participate, because C.G. was too young. However, Robert had told Stacie that he loved her and would not do anything to get them into trouble. Officer La-Barge testified that at the time of her statement Stacie was very upset, but not hysterical. On rebuttal, Stacie again denied making the reported statements to Officer LaBarge.

Robert Andersen testified on rebuttal that he was not present when the photo of C.G. standing on the waterbed in his and Stacie’s bedroom was taken.

The jury returned guilty verdicts, and the court entered judgment on both counts against both defendants. The defendants brought this appeal.

The defendants’ first argument on appeal is that the evidence was insufficient to prove them guilty beyond a reasonable doubt. In cases where a sex offense is charged, as in other cases, the appropriate standard to review the sufficiency of the evidence is whether, 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. People v. Schott (1991), 145 Ill. 2d 188, 206.

When there is conflicting testimony, the resolution of factual disputes and the assessment of the credibility of the witnesses are for the trier of fact. (People v. Haun (1991), 221 Ill. App. 3d 164, 174.) The reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt of a defendant’s guilt remains. People v. Roy (1990), 201 Ill. App. 3d 166, 185.

The jury considered C.G.’s thorough testimony regarding the events of February 25. That testimony was strengthened by testimony of Officer LaBarge and the photographic evidence. Despite the conflicts in the record, after considering the evidence in this case in a light most favorable to the prosecution, we do not find that it is so unsatisfactory or improbable that no reasonable jury could have found proof of the defendants’ guilt beyond a reasonable doubt.

The defendants’ second issue on appeal concerns whether the charge against them for criminal sexual assault was sufficient. The defendants were charged under section 12—13(a)(3) of the Criminal Code of 1961. That section provides, in pertinent part, as follows:

“(a) The accused commits criminal sexual assault if he or she:
* * *
(3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member.” Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(3).

The informations filed against the defendants charged, based on events of February 25, 1989, that as “a person responsible for the care of [C.G.]” (emphasis added), each defendant committed the offense of criminal sexual assault in violation of section 12—13(a)(3). The information did not allege that the defendants were family members of the accused, nor are the defendants family members as defined by the relevant statute (see Ill. Rev. Stat. 1991, ch. 38, par. 12-12(c)).

The defendants argue that the language used by the State in these count II charges was taken from an amendment to section 12—13(a)(3) which never became effective. They correctly observe that the legislature repealed the amendment that added language addressing responsibility for care of a complainant, before that amendment’s effective date. The defendants assert that the language used by the State in count II does not set forth the elements of section 12—13(a)(3) without the amendment and, thus, that the charging instrument was insufficient to inform them of the charge against them.

The State concedes that the proposed amendment to section 12—13(a)(3) adding the words “persons responsible for the child’s welfare” never became effective. However, the State argues that although the words “persons responsible for” do not appear in the statute, that language is encompassed by the language set forth in section 12—13(a)(4), making the error harmless. That section reads:

“(a) The accused commits criminal sexual assault if he or she:
* * *
(4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.” Ill. Rev. Stat. 1991, ch. 38, par. 12—13(a)(4).

When attacked for the first time on appeal, an information or indictment is considered sufficient if it apprises the accused of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. (People v. Gilmore (1976), 63 Ill. 2d 23, 29; People v. Boland (1990), 205 Ill. App. 3d 1009, 1017.) In other words, a defective charge may be held to be sufficient on appeal if the defendant has not been prejudiced thereby in his or her defense. See People v. Waelterman (1983), 112 Ill. App. 3d 483, 485.

Here, the State charged the defendants under amendatory language of the Criminal Code of 1961 which never became effective. The State’s charge failed to allege the necessary elements of the Criminal Code section cited or the Criminal Code section which the State now argues would apply. Based on this record, we cannot say that the informations here were sufficient to apprise the defendants of the offense with which they were charged.

We note that the State did not merely incorrectly cite the section of the statute under which it wanted to proceed. Rather, it charged the defendants under an amendment to the statute that never became effective. The charges made were sufficient under no Criminal Code provision. In addition, the record reveals that both the State and the defense treated the charges as based upon a violation of the amended version of section 12—13(a)(3) that never became effective.

Section 12—13(a)(4), under which the State might have proceeded, requires that the victim be between the ages of 13 and 18 and that the accused be at least 17 years of age. The amendment to section 12—13(a)(3), under which the charges here were made, merely required the victim be under the age of 18 at the time of the incident. During closing arguments, the State repeatedly referred to the fact that it only needed to prove the victim was under 18 years of age and that the accuseds were “persons responsible” for her care. In fact, the trial court instructed the jury as follows:

“A person commits the offense of criminal sexual assault when he or she who is [sic] a person responsible for the child’s welfare and [sic] commits an act of sexual penetration with a victim who is under eighteen years of age when the act was committed. To sustain the charge of criminal sexual assault the State must prove the following propositions. First, that the defendant or one for whose conduct he or she is legally responsible [sic] committed an act of sexual penetration upon [C.G] and second [sic] that [C.G.] was under eighteen years of age when the act was committed and third [sic] that the defendant or one for whose conduct he or she was legally responsible was a person responsible for the child’s welfare.”

The record is clear that the defendants were not only charged under a section of the Criminal Code which never became law, but also that the jury was instructed on that offense. We cannot say that no prejudice resulted from the State’s error. We, thus, reverse the defendants’ count II convictions of criminal sexual assault. Accordingly, we need not address defendants’ third contention on appeal that they were not proved to be “persons responsible for the care ofC.G.”

Next, the defendants argue that Stacie’s conviction of aggravated criminal sexual abuse must be reversed because she is not five years older than C.G., as required by section 12—16(d) of the Criminal Code. (Ill. Rev. Stat. 1991, ch. 38, par. 12—16(d).) That section provides as follows:

“(d) The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim.” Ill. Rev. Stat. 1991, ch. 38, par. 12—16(d).

Stacie, who at the time of the incident was 19 years old, is approximately 4 years and 11 months older than C.G. The State argues that Stacie’s age is irrelevant because she was tried under a theory of accountability.

A defendant is legally accountable for the conduct of another when:

“(c) [ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 5—2(c).)

Accountability is not a separate offense but merely an alternative manner of proving a defendant guilty of the substantive offense. People v. Doss (1981), 99 Ill. App. 3d 1026, 1029.

Although sexual assault statutes now provide for conviction of either males or females (see Ill. Rev. Stat. 1991, ch. 38, pars. 12—13, 12—14, 12—15, 12—16), under earlier statutes, only a male could be directly guilty; females could be found guilty of rape, but as an accessory, an aider or an abettor. (See People v. Medrano (1974), 24 Ill. App. 3d 429, 430; People v. Trumbley (1911), 252 Ill. 29, 36.) In discussing a female’s conviction of a sexual offense on a theory of accountability, our supreme court has stated that it is not a question of ability or want of ability to do the act which the statute declares to be a crime, but whether the act, if done, would be a crime. (Trumbley, 252 Ill. at 33.) In Trumbley, the court found that a female defendant accused of rape but not charged to be 17 years of age or older, as the statute required of the males it covered, could not be convicted.

The court acknowledged that if a female defendant were properly charged as required by the statute, she could be convicted under a theory of accountability. (Trumbley, 252 Ill. at 34.) However, the court stated that “[w]e cannot attribute to the General Assembly an intention to punish one as an accessory to an act which, if committed by such person, would not be a crime.” (Trumbley, 252 Ill. at 33.) The court noted that if the female defendant had been male, she could not be convicted because the indictment did not show that she satisfied the statute’s age requirement. 252 Ill. at 33, 36.

This case is directly analogous to Trumbley. Under that case, Stacie cannot be convicted, even through accountability, for an act that the General Assembly did not define as a crime if she had committed it herself. Stacie Andersen’s conviction of aggravated criminal sexual abuse is reversed.

The defendants’ last issue on appeal is whether they were denied the effective assistance of counsel. In light of the preceding portion of our decision, we need only review this issue as it pertains to Robert.

The standard used to determine whether a defendant has been denied the effective assistance of counsel was set out by the United States Supreme Court in Strickland, v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Unless a defendant makes both showings, he cannot prevail on his claim of ineffective assistance. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In deciding a claim of ineffective assistance of counsel, a court may advance directly to the second part of the Strickland test, and, if it finds that the defendant was not prejudiced by the allegedly incompetent conduct of his attorney, the court may rule on the claim without first finding that the attorney’s conduct constituted less than reasonably effective assistance. People v. Pitsonbarger (1990), 142 Ill. 2d 353, 397.

Robert argues he was denied the effective assistance of counsel because counsel: (1) failed to move to suppress photographs of him and Stacie engaged in intercourse; (2) failed to investigate the background of C.G. to provide evidence of her previous allegations and sexual charges; (3) failed to ask C.G. why no family members came forward on her behalf and why she delayed reporting the incident; (4) failed to call the jury's attention to the fact that although C.G. claimed Stacie informed her in March that she had destroyed the photographs, a search warrant was executed in April to locate lewd pictures of a minor child; and (5) failed to file a post-trial motion. We note that the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548.) Defendant has failed to show such prejudice.

Robert’s ineffective assistance argument emphasizes counsel’s failure to seek suppression. He argues that suppression would have been granted because the items seized, including the camera, the box of condoms and the photos, were outside the scope of the warrant. We disagree.

The items now at issue were found in plain view, by the police during their search for photos of C.G. C.G. had told the police that she took photos of the defendants having sexual and oral intercourse. She also stated that the photos were taken with a Polaroid One-step camera and that Robert Andersen had used a condom. Given C.G.’s claims, the evidence seized was of an incriminating nature. Under the plain-view doctrine, an officer executing a valid search warrant may seize items not listed in the warrant if such items are of an apparently incriminating nature. (People v. Stewart (1984), 105 Ill. 2d 22, 52.) We find that Robert suffered no prejudice by defense counsel’s failure to file a motion to suppress.

We also find no showing of prejudice on Robert’s additional claims of ineffective assistance. Regarding Robert’s reliance upon counsel’s failure to further investigate C.G.’s possible prior allegations of sexual misconduct, we note that the State filed and the court granted a motion in limine to prevent the defense from attempting to admit such evidence. With reference to the court’s finding of admissibility, we find that Robert suffered no prejudice as a result of defense counsel’s failure to further investigate.

Third, regarding Robert’s charge that defense counsel failed to question C.G. regarding why no family members came forward to testify on her behalf and why she delayed reporting the incident, we note the following. During his cross-examination of her on rebuttal, defense counsel did question C.G. about her delay in reporting the incident. Also, the record reveals no reason why it was necessary for the State to call C.G.’s family members as post-occurrence witnesses, and Robert has not demonstrated that defense counsel’s failure to question C.G. about her family members created prejudice.

On Robert’s remaining arguments, we note that the facts that the police executed a warrant to search for the photos of C.G., even though C.G. had informed them Stacie claimed to have destroyed the pictures, were brought out at trial. We fail to see how further “exploration” on this matter would have changed the outcome of the case. Similarly, we find no showing of prejudice in defense counsel’s failure to file a post-trial motion. The issues raised in this appeal were not waived by failure to file a post-trial motion, and the defendant has failed to demonstrate any prejudice caused as a result of defense counsel’s failure to file such a motion.

Based on the foregoing, the judgment of the circuit court is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

BOWMAN, J., concurs.

JUSTICE DUNN,

dissenting:

I dissent in the majority holding that Stacie’s conviction of aggravated criminal sexual abuse must be reversed. The authority the majority cites for this erroneous conclusion is People v. Trumbley (1911), 252 Ill. 29, 36. If the authority cited by the majority had precedential value, I would then have no quarrel with their conclusion. However, it is quite clear that the expression of opinion in the turn-of-the-century Trumbley case was mere obiter dictum. The only issue involved there was the sufficiency of the indictment. The expression of opinion was based on assumed facts not present in the case.

In my view, therefore, Trumbley is not binding authority. Moreover, the opinion gratuitously expressed by the court and adopted by the majority here was grounded on a faulty analysis.

The State argues in this appeal that Stacie’s age is irrelevant because she was tried under a theory of accountability. I agree.

A defendant is legally accountable for the conduct of another when:

“(c) [ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 5—2(c).)

Accountability is not a separate offense but merely an alternative manner of proving a defendant guilty of the substantive offense. People v. Doss (1981), 99 Ill. App. 3d 1026, 1029.

One may aid and abet without actually participating in the offense. (People v. Hoskins (1990), 203 Ill. App. 3d 45, 53; People v. Jones (1989), 184 Ill. App. 3d 412, 431.) A defendant may be held accountable for rape when he or she was aware that the commission of the offense was taking place even though there is no evidence he or she actually participated in the act. People v. Jones, 184 Ill. App. 3d at 431.

Because accountability is an alternative manner of proving a defendant guilty of a substantive offense, it is not necessary to prove all elements of that substantive offense. In the present case, the State need only prove Stacie Andersen aided and abetted her husband in the offense charged. It was not necessary for the State to prove Stacie committed the act itself as defined by the statute. It is the criminal act of her husband for which she is being held accountable. Her conviction of aggravated criminal sexual abuse should be affirmed.